Schroth v. Estate of Samuel

90 So. 3d 1209, 2011 La.App. 4 Cir. 1385, 2012 WL 1356655, 2012 La. App. LEXIS 532
CourtLouisiana Court of Appeal
DecidedApril 18, 2012
DocketNo. 2011-CA-1385
StatusPublished
Cited by4 cases

This text of 90 So. 3d 1209 (Schroth v. Estate of Samuel) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schroth v. Estate of Samuel, 90 So. 3d 1209, 2011 La.App. 4 Cir. 1385, 2012 WL 1356655, 2012 La. App. LEXIS 532 (La. Ct. App. 2012).

Opinion

EDWIN A. LOMBARD, Judge.

_JjThe plaintiffs appeal the trial court’s judgment granting a motion for summary judgment in favor of the defendants. After de novo review, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

In October 2003, the plaintiffs, Fritz Schroth, a contractor, and Nellie Clark, an artist, entered into a Commercial Lease Agreement with Martha Ann Samuel, the lessor, for a building located at 601 Elysian Fields Avenue in New Orleans, Louisiana to establish an art and framing business, as well as an occasional residence. It was the understanding of the parties that Mr. Schroth would renovate the interior to make it suitable for use as an art gallery and that Martha Ann Samuel would be responsible for maintenance such as the roof and painting of the exterior. In August 2005, the rental property was damaged in Hurricane Katrina, requiring repairs to the roof. Shortly after Hurricane Katrina, the lessor passed away, leaving her daughters, Cynthia Samuel and Stephanie Samuel, in control over the rental property at issue.

On September 18, 2006, the plaintiffs filed suit in the Civil District Court for the Parish of Orleans for damages arising out of the lease agreement, naming as 12defendants, estate of Martha Ann Samuel, her daughters, and her insurer, Lafayette Insurance Company. The plaintiffs contended that: (1) the damage sustained by Hurricane Katrina was more extensive due to the lessor’s failure to maintain the roof; (2) the failure to repair the property was a violation of the lease agreement and the defendants are liable for all resulting damage, including the loss of personal property stored in their storage unit in [1211]*1211Chalmette, Louisiana, which flooded as a result of Hurricane Katrina; and (3) the defendants are liable for the damage and destruction of their property caused by the work crew that the defendants allegedly hired.

On February 22, 2011, the defendants moved for summary judgment asserting that the plaintiffs would not be able to sustain their burden of proof at trial to show that the defendants are liable for the damages allegedly sustained by the plaintiffs.

On March 24, 2011, the defendants’ motion for summary judgment was granted in part, leaving only the question as to whether the defendants’ failure to maintain the roof was the cause-in-fact of damages.

Subsequently, on April 5, 2011, the defendants filed a second motion for summary judgment as to the plaintiffs’ remaining claim, arguing that the plaintiffs did not present any evidence to show that the roof on the subject building was defective or in need of repair prior to Hurricane Katrina. On June 13, 2011, the trial court summary judgment in favor of the defendants. It is from this judgment; the plaintiffs timely filed this appeal.

^Applicable Law

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. Art. 966(B). The initial burden of producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Schultz v. Guoth, 10-0343, p. 4 (La.1/19/11), 57 So.3d 1002, 1006, citing Samaha v. Rau, 07-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial ... Once the motion for summary judgment has been supported by the moving party, the failure of the non-moving party to produce evidence of material factual dispute mandates the granting of the motion.” Id.; (citations omitted).

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83.

Because the first summary judgment did not dismiss any of the parties, but only dismissed particular issues or causes of action under Louisiana Code of Civil Procedure article 966 E, it did not qualify for treatment as a final and appealable judgment under Louisiana Code of Civil Procedure articles 1911, 1915 A(l) and |4(3), and 2083. According to Louisiana Code of Civil Procedure article 1915(B)1, unless the first summary judgment was designated by the trial court as final and appealable, it shall not constitute a final judgment for the purpose of an immediate appeal. See La.Code Civ. Proc. art. 1915 B(2). See also Favrot v. Favrot, 10-0986, pp. 2-5 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102-1105.

However, an appellant can timely seek review of an interlocutory ruling or [1212]*1212judgment at the time of appealing a final judgment, which, in this case, is the second motion for summary judgment, as filed by the plaintiffs. See People of the Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752 (1968). See also Roger A. Setter, LOUISIANA CIVIL APPELLATE PROCEDURE, 3:22 (2010-2011 ed.) (“When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings adverse to him, in addition to the review of the final judgment.”)

Discussion

Because the plaintiffs assigned as error the granting of the first summary judgment, which was not designated as final by the trial court, the plaintiffs are entitled to our review of that interlocutory ruling upon the appeal of the granting of the second summary judgment.

After a thorough review of the record and the evidence before us, it is the opinion of this Court that the primary issue presented by the instant case is whether the defendants can be held liable to the plaintiffs under the terms of the lease agreement.

The Commercial Lease Agreement contains the following pertinent provisions:

|,,5) DELIVERY OF PREMISES: Lessee hereby accepts the premises in their existing condition and assumes responsibility for the condition of the leased premises. Any improvements or alterations desired by the Lessee shall be at Lessee’s cost, with Lessor’s prior, written approval, except as hereinafter provided: Lessor to have bathtub leaks repaired and central a.c./heat to be in working order; thereafter lessee to maintain. Routine maintenance of exterior has to be responsibility of lessee with lessor to do major maintenance such as roof and overall paint.
28) SUBROGATION: Neither the Lessor nor the Lessee shall be liable to the other for the loss arising out of damage to, or destruction of the leased premises, or the building or improvements of which the leased premises are a part thereof, when such loss is caused by any of the perils which are or could be included within or are insured against by a standard form of ñre insurance with extended coverage, including sprinkler leakage, if any. All such claims for any and all loss, however caused, hereby are waived.

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Bluebook (online)
90 So. 3d 1209, 2011 La.App. 4 Cir. 1385, 2012 WL 1356655, 2012 La. App. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schroth-v-estate-of-samuel-lactapp-2012.