Wilvon Allison v. Citgo Petroleum Corporation

• Court: Louisiana Court of Appeal
• Decided: December 19, 2018
• Docket: CA-0018-0303
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

18-303 consolidated with 18-302

WILVON ALLISON, ET AL.

VERSUS

CITGO PETROLEUM CORPORATION, ET AL.

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-3286 C/W 2007-2786 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.

GREMILLION, J., concurs and assigns written reasons.

PERRET, J., concurs with reasons.

AFFIRMED.

Robert E. Landry Scofield, Gerard, Pohorelsky, Gallaugher & Landry 901 Lakeshore Drive – Suite 900 Lake Charles, LA 70601 Telephone: (337) 433-9436 COUNSEL FOR: Defendant/Appellant – CITGO Petroleum Corporation Kirk Albert Patrick, III R. Heath Savant Donahue, Patrick & Scott 450 Laurel Street – Suite 1600 Baton Rouge, LA 70801 Telephone: (225) 214-1908 COUNSEL FOR: Defendant/Appellee – R & R Construction, Inc.

Wells Talbot Watson Bagget, McCall , Burgess P. O. Drawer 7820 Lake Charles, LA 70606-7820 Telephone: (337) 478-8888 COUNSEL FOR: Plaintiffs/Appellees – Robert D. Marshall, Tamara N. Marceaux, Daron Christopher Hidalgo, John Thomas Cochran, Gewan Papillion, Alfred Joseph Carrier, Eric Mark Allison, and Marcus Dwayne Clark

Marshall Joseph Simien, Jr. Simien Law Firm 2129 Fitzenreiter Road Lake Charles, LA 70601 Telephone: (337) 497-0022 COUNSEL FOR: Defendant/Appellant – CITGO Petroleum Corporation

Richard Elliott Wilson Cox, Cox, Filo, Camel & Wilson 723 Broad Street Lake Charles, LA 70601 Telephone: (337) 436-6611 COUNSEL FOR: Plaintiffs/Appellees – Gewan Papillion, Eric Mark Allison, Marcus Dwayne Clark, John Thomas Cochran, Daron Christopher Hidalgo, Tamara N. Marceaux, Alfred Joseph Carrier, and Robert D. Marshall

Craig Isenberg Joshua O. Cox Barrasso Usdin Kupperman Freeman & Sarver, L.L.C. 909 Poydras, Street – 24th Floor New Orleans, LA 70112 Telephone: (504) 589-9700 COUNSEL FOR: Defendant/Appellant – CITGO Petroleum Corporation THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated appeal of Eric Mark

Allison v. Citgo Petroleum Corporation, et al., 18-302 (La.App. 3 Cir. __/__/18),

___ So.3d ___ (Trial Docket No. 2007-2786), the judgment of the trial court in this

appeal, Wilvon Allison v. Citgo Petroleum Corporation, et al., 18-303 (La.App. 3

Cir. __/__/18), ___ So.3d ___ (Trial Docket No. 2007-3286), is affirmed. Costs of

this appeal are assessed to the defendant, CITGO Petroleum Corporation.

AFFIRMED. STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

GREMILLION, Judge, concurs and assigns the following reasons:

I concur in the result reached in this matter because of CITGO’s stipulation to

fault and liability. I disagree with the majority’s reasoning regarding CITGO’s

motion for summary judgment. The affidavits and attached contracts should not

have been excluded from evidence on the motion for summary judgment. It was not

CITGO’s burden to prove that the omitted portions of the contracts did not address

the statutory employment issue; rather, it became the plaintiffs’ burden to prove that

they did. STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

ERIC MARK ALLISON, ET AL. VERSUS CITGO PETROLEUM CORPORATION, ET AL.

PERRET, CANDYCE, J. CONCURS WITH REASONS:

I respectfully concur. Although I agree with the majority opinion that “review

of an interlocutory judgment may be obtained by assigning the issue as error in the

unrestricted appeal of the final, appealable judgment to which it relates,” I find that

this court should review the denial of Citgo’s motion for summary judgment on the

issue of statutory employer immunity on the entire record since the case has been

fully tried. As stated by the Louisiana Supreme Court in Hopkins v. American

Cyanamid Company, 95-1088 (La.1/16/96), 666 So.2d 615, 624:

[O]nce a case is fully tried, the affidavits and other limited evidence presented with a motion for summary judgment--later denied by the district court--are of little or no value. Appellate courts should not rule on appeal after a full merits trial on the strength alone of affidavits in support of a motion for summary judgment that was not sustained in the district court. In such cases, appellate courts should review the entire record.

Because Citgo failed to raise the issue of statutory employer immunity at trial and

because it did not attempt to supply the missing parts of the partial contracts

throughout the litigation, I find, based upon my review of the entire record before

us, no merit in Citgo’s assignment of error that the trial court erred in denying its

motion for summary judgment.