Appeal from the 23rd Judicial District Court In and for the
Parish of Ascension State of Louisiana Trial Court No. 98330,
Div. C The Honorable Katherine Tess Stromberg, Judge
Gros Donaldsonville, Louisiana Attorney for Appellants
Plaintiffs - Nathan and Sharon Mitchell d/b/a Shapes Gym.
J. Eppling Craig W. Brewer Sara P. Scurlock Metairie,
Louisiana Attorneys for Appellee Defendant-Aaron's, Inc.
Michael W. Rutledge James G. Albertine, III New Orleans,
Louisiana Attorneys for Appellee Defendant- Wal-Mart Stores,
BEFORE: PETTIGREW, McDONALD, AND CALLOWAY,  JJ.
plaintiffs-appellants, Nathan and Sharon Mitchell d/b/a
Shapes Gym ("Mitchells"), appeal a summary judgment
in favor of the defendants-appellees, Aaron's Rentals,
Inc. ("Aaron's") and Wal-Mart Stores, Inc.
("Wal-Mart"), dismissing their claims with
prejudice. Based on the following, we affirm.
AND PROCEDURAL HISTORY
Mitchells are the owners of Shapes Gym, a commercial property
located on Louisiana Highway 3089 in Donaldsonville.
Aaron's and Wal-Mart, operators of commercial retail
businesses, are located next to Shapes Gym: the gym is
adjacent to the Wal-Mart parking lot, and Aaron's is
located directly behind the gym. Aaron's and Wal-Mart
retained Duplantis Design Group ("Duplantis") to
design a drainage system for their respective businesses.
December 8, 2009, Shapes Gym was inundated with approximately
six inches of rain water. Thereafter, the Mitchells filed a
petition for damages naming as defendants Aaron's,
Wal-Mart, and Duplantis. The Mitchells sought damages following
the flooding of Shapes Gym, alleging the defendants
negligently maintained their respective storm water drainage
systems. The Mitchells further alleged that Duplantis
negligently designed the defendants' drainage systems,
and was therefore also responsible for the damages caused by
the flooding of Shapes Gym.
for Summary Judgment Filed by Wal-Mart and Duplantis
and Duplantis filed a motion for summary judgment on July 10,
2013, arguing that the Mitchells did not possess evidence
sufficient to meet their burden of proof at trial,
specifically, that Duplantis breached the standard of care
for its drainage design work for Wal-Mart that the Mitchells
alleged caused rain water to inundate Shapes Gym in December
2009. On August 2, 2013, Aaron's filed a motion for
summary judgment, adopting and incorporating Wal-Mart and
Duplantis's motion for summary judgment, memorandum in
support, statement of undisputed material facts, and the
attachments thereto. The Mitchells opposed the motions on
October 11, 2013. The defendants replied to the opposition
filed by the Mitchells.
a hearing on October 21, 2013, the trial court granted
partial summary judgment in favor of Wal-Mart, Duplantis, and
Aaron's with respect to the Mitchells' negligent
drainage design claims, on the basis that the Mitchells did
not produce sufficient evidence to rebut the evidence
produced by Duplantis. The trial court dismissed all of the
Mitchell's claims against Duplantis, with prejudice. As
to the Mitchells' negligent maintenance claims against
Wal-Mart and Aaron's, the trial court denied summary
judgment and continued the hearing to December 16, 2013, to
give the Mitchells the opportunity to further support their
negligent maintenance claim.
December 6, 2013, the Mitchells filed a supplemental
opposition to Wal-Mart and Aaron's motions for summary
judgment. Four days later, the Mitchells filed a second
supplemental opposition to Wal-Mart and Aaron's motions
for summary judgment, and attached the affidavit of a
purported expert. The defendants replied to the supplemental
oppositions filed by the Mitchells. Aaron's also filed a
supplemental reply memorandum in support of its motion for
subsequently filed a second motion for summary judgment on
October 16, 2014, after deposing the Mitchells' expert.
Wal-Mart argued the expert affidavit provided by the
Mitchells in their second supplemental opposition and the
deposition testimony of their expert did not create a genuine
issue of material fact as to causation or a breach of the
standard of care by Wal-Mart. Aaron's also filed a second
motion for summary judgment on November 13, 2014, arguing the
Mitchells had produced no evidence to support their claim
that Aaron's failed to maintain its drainage features or
that its drainage system caused the flooding of Shapes Gym.
The Mitchells opposed Wal-Mart's motion for summary
judgment, attaching a second, revised affidavit of their
expert. Wal-Mart filed a reply memorandum in
support of its motion for summary judgment.
hearing on the defendants' motions for summary judgment
was held on December 3, 2014; however, the trial court
continued the hearing to January 21, 2015. On January 12,
2015, the trial court granted the Mitchells leave of court to
file their fourth supplemental and amending petition for
damages to include a claim for damages for the flooding of
Shapes Gym that occurred on May 5, 2014 as the result of the
alleged negligence of the defendants. On January 21, 2015, the
trial court continued the hearing on the motions for summary
judgment without date. Thereafter, Wal-Mart and Aaron's
filed motions to re-set the hearings on their motions for
summary judgment. The trial court ultimately continued the
motions to September 1, 2015.
September 1, 2015, the trial court addressed the pending
motions for summary judgment. The parties agreed to waive
further hearings and to submit on briefs. Thereafter, the
Mitchells filed a supplemental opposition to the motions for
summary judgment. Wal-Mart also filed a supplemental
memorandum in support of its motion for summary judgment.
trial court signed a judgment on December 8, 2015, granting
summary judgment in favor of Wal-Mart and Aaron's, and
dismissing all of the Mitchells' claims against the
defendants. The trial court also issued reasons for judgment.
The Mitchells now appeal.
adequate discovery, a motion for summary judgment is properly
granted if the pleadings, depositions, answers to
interrogatories, and admissions, together with affidavits, if
any, admitted for purposes of the motion, 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. C.C.P. art.
966(B)(2) and (C)(1) (prior to amendment by 2015 La. Acts,
No. 422, effective January 1, 2016). The summary judgment
procedure is expressly favored in the law and is designed to
secure the just, speedy, and inexpensive determination of
non-domestic civil actions. See La. C.C.P. art.
mover bears the burden of proving that he is entitled to
summary judgment. However, if the mover will not bear the
burden of proof at trial on the subject matter of the motion,
he need only demonstrate the absence of factual support for
one or more essential elements of his opponent's claim,
action, or defense. La. C.C.P. art. 966(C)(2) (prior to
amendment by 2015 La. Acts, No. 422, effective January 1,
2016). If the moving party points out that there
is an absence of factual support for one or more elements
essential to the adverse party's claim, action, or
defense, then the nonmoving party must produce factual
support sufficient to satisfy his evidentiary burden at
trial. La. C.C.P. art. 966(C)(2) (prior to amendment by 2015
La. Acts, No. 422, effective January 1, 2016). If the
nonmoving party fails to make this requisite showing, there
is no genuine issue of material fact, and summary judgment
should be granted. La. C.C.P. art. 966(C)(2) (prior to
amendment by 2015 La. Acts, No. 422, effective January 1,
2016). If, however, the mover fails in his burden to show an
absence of factual support for one or more of the elements of
the adverse party's claim, the burden never shifts to the
adverse party, and the mover is not entitled to summary
judgment. LeBlanc v. Bouchereau Oil Co., Inc.,
2008-2064 (La.App. 1 Cir. 5/8/09), 15 So.3d 152, 155,
writ denied, 2009-1624 (La. 10/16/09), 19 So.3d 481.
ruling on a motion for summary judgment, the trial
court's role is not to evaluate the weight of the
evidence or to determine the truth of the matter, but instead
to determine whether there is a genuine issue of triable
fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876
So.2d 764, 765 (per curiam). A fact is material if
it potentially ensures or precludes recovery, affects a
litigant's ultimate success, or determines the outcome of
the legal dispute. A genuine issue is one as to which
reasonable persons could disagree; if reasonable persons
could reach only one conclusion, there is no need for trial
on that issue and summary judgment is appropriate.
Hines, 876 So.2d at 765-66. Factual inferences
reasonably drawn from the evidence must be construed in favor
of the party opposing the motion, and all doubt must be
resolved in the opponent's favor. Willis v.
Medders, 2000-2507 (La. 12/8/00), 775 So.2d 1049, 1050
determining whether summary judgment is appropriate,
appellate courts review evidence de novo under the
same criteria that govern the trial court's determination
of whether summary judgment is appropriate. East
Tangipahoa Development Company, LLC v. Bedico Junction,
LLC, 2008-1262 (La.App. 1 Cir. 12/23/08), 5 So.3d 238,
243-44, writ denied, 2009-0166 (La. 3/27/09), 5
So.3d 146. Because it is the applicable substantive law that
determines materiality, whether a particular fact in dispute
is material can be seen only in light of the substantive law
applicable to this case. Pumphrey v. Harris,
2012-0405 (La.App. 1 Cir. 11/2/12), 111 So.3d 86, 89.