FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-06536,
DIVISION "G-11" Honorable Robin M. Giarrusso,
Stephen I. Dwyer J. Kendall Rathburn Kailey L. Leboeuf DWYER
CAMBRE & SUFFERN COUNSEL FOR PLAINTIFFS/APPELLANTS
Alexander R. Saunders PELLETERI & WIEDORN, L.L.C. COUNSEL
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Sandra Cabrina Jenkins.
CABRINA JENKINS JUDGE.
Tarik Ahmed and Miss US, Inc., appeal the trial court's
September 23, 2016 judgment granting summary judgment in
favor of defendants, Roofing Contractors, Inc. of Louisiana
and United Fire & Indemnity Company, and dismissing
plaintiffs' claims with prejudice. In rendering its
judgment, the trial court found that Mr. Ahmed is not a
proper party plaintiff and the amended petition, adding Miss
US, Inc. as a plaintiff, did not relate back to the filing of
the original petition. Based on our review of the record and
applicable law, we find no error in the trial court's
judgment and we affirm.
AND PROCEDURAL HISTORY
2007, Tarik Ahmed entered into a lease agreement with
Qaquish, L.L.C. for a commercial space located at 2001 St.
Bernard Avenue, where he opened and operated St. Bernard
Beauty Supply Store ("the beauty store"). That same
month, Miss US, Inc. was incorporated as a Louisiana
corporation with Mr. Ahmed as its sole shareholder and
President. In or around May 2010, Mr. Ahmed "d/b/a Miss
US, Inc., " signed an amendment to the lease agreement
with Qaquish, L.L.C., extending and amending the terms of the
original lease. Then, in September 2011, Qaquish, L.L.C.
transferred ownership of the property at 2001 St. Bernard
Avenue to Downman Development, L.L.C. ("Downman"),
which became the successor in interest to the commercial
lease for the beauty store.
5, 2012, Mr. Ahmed, individually, instituted this suit for
damages against Downman, Roofing Contractors, Inc. of
Louisiana ("RCI") and United Fire & Indemnity
Company. According to the allegations in the
petition, Downman contracted with RCI to repair and renovate
the roof and ceiling above the beauty store. During the
course of the repair work, at some time prior to November 15,
2011, RCI allegedly created large holes in the roof and
ceiling above the beauty store but failed to seal the
openings exposed by their work. Then, on or around November
15-16, 2011, heavy rain allegedly inundated the beauty store
through the openings in the roof and ceiling and caused
severe water damage to the stock and inventory therein.
Thereafter, Mr. Ahmed, individually, filed this suit to
recover damages sustained to the stock and inventory as a
result of the alleged negligent acts of defendants.
September 2015, after receiving discovery from Mr. Ahmed, RCI
and United Fire & Indemnity Company (hereinafter
"defendants") each filed a peremptory exception of
no right of action seeking dismissal of all claims against
them. Based on Mr. Ahmed's responses to discovery
requests, defendants argued that the damaged stock and
inventory was actually owned by Miss US, Inc., and Mr. Ahmed
had no right to recover damages for property he did not
personally own. In response, on October 15, 2015, Mr. Ahmed
filed a motion for leave to file a third supplemental and
amending petition adding Miss US, Inc. as a
plaintiff; he contemporaneously filed an opposition
to the exception of no right of action, asserting that both
he and Miss US, Inc. owned the damaged property and both are
proper parties to the suit. After a hearing on the exception,
the trial court rendered judgment granting Mr. Ahmed leave to
amend the petition, denying defendants' exceptions of no
right of action "without prejudice, as premature, "
and reserving to defendants the opportunity to re-urge the
exception after additional discovery.
2016, defendants each filed a motion for summary judgment
seeking dismissal of all claims against them. Again,
defendants argued that Mr. Ahmed was not the proper party to
file suit to recover damages for property he did not own; in
addition, defendants argued that the third supplemental and
amending petition adding the proper party plaintiff, Miss US,
Inc., could not relate back to the original petition filed by
Mr. Ahmed and, thus, the claims asserted by the proper party
filed an opposition to defendants' motions for summary
judgment on August 31, 2016, and the trial court set a
hearing on the motions for September 16, 2016. Following the
hearing, the trial court rendered judgment on September 23,
2016, granting defendants' motions for summary judgment
and dismissing plaintiffs' claims with prejudice. On
October 24, 2016, the trial court issued written reasons for
timely appeal follows.
courts review a trial court's ruling granting a motion
for summary judgment de novo, using the same
criteria that govern the trial court's determination of
whether summary judgment is appropriate. FMB Development,
L.L.C. v. Hibernia Nat'l Bank, 16-1057, p. 4 (La.
7/12/17), 224 So.3d 431, 434. Pursuant to La. C.C.P. art.
966(A)(3), a court shall grant a motion for summary judgment
if, after an opportunity for adequate discovery, the motion,
memorandum, and supporting documents show that there is no
genuine issue of material fact and that the mover is entitled
to judgment as a matter of law.
burden of proof on a motion for summary judgment is governed
by La. C.C.P. art. 966(D)(1), which provides as follows:
The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover's burden on the motion does not
require him to negate all essential elements of the adverse
party's claim, action, or defense, but rather to point
out to the court the absence of factual support for one or
more elements essential to the adverse party's claim,
action, or defense. The burden is on the adverse party to
produce factual support sufficient to establish the existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.
determination of whether material facts exist in the case
depends upon the applicable substantive law. Jones v.
Stewart, 16-0329, p. 8 (La.App. 4 Cir. 10/5/16), 203
So.3d 384, 389, citing Smith v. Our Lady of the Lake
Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730,
case, the trial court granted defendants' motions for
summary judgment on the basis of prescription. In its reasons
for judgment, the trial court made the following findings:
Mr. Ahmed is not the proper party plaintiff because he has no
right to recover for the alleged damage to property he did
not own; the proper party plaintiff, Miss US, Inc., was not
added within the one year prescriptive period; and the third
supplemental and amended petition did not relate back to the
filing of the original petition. Thus, the trial court found
that the claims asserted by the proper party plaintiff, Miss
US, Inc., were prescribed and defendants were entitled to
first assignment of error, plaintiffs argue that the trial
court erred in granting summary judgment by finding that Mr.
Ahmed is not a proper party plaintiff because he did not
personally own the damaged stock and inventory at the beauty
store. Plaintiffs assert that Mr. Ahmed has a real and actual
interest in this suit and he properly instituted this
litigation to recover for damage to inventory and stock that
he purchased for the beauty store. Moreover, plaintiffs
assert that the evidence presented in opposition to
defendants' motions for summary ...