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Faciane v. Golden Key Division Limited Partnership

Court of Appeals of Louisiana, Fifth Circuit

May 23, 2018

KIM FACIANE
v.
GOLDEN KEY DIVISION LIMITED PARTNERSHIP, FORMERLY KNOWN AS CREEKWOOD GOLDEN KEY LIMITED PARTNERSHIP, OHIO MANAGEMENT L.L.C. AND ALLIED WORLD ASSURANCE COMPANY (US), INC.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 758-964, DIVISION "E" HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, KIM FACIANE Darleen M. Jacobs

          COUNSEL FOR DEFENDANT/APPELLEE, GOLDEN KEY DIVISION LIMITED PARTNERSHIP AND OHIO MANAGEMENT, L.L.C. Jefferson R. Tillery Jeanne L. Amy

          COUNSEL FOR DEFENDANT/APPELLEE, ALLIED WORLD ASSURANCE COMPANY, INC. James W. Hailey, III James V. King, III

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE.

         Appellant/plaintiff, Kim Faciane, appeals the trial court's September 25, 2017 grant of summary judgment in favor of appellees/defendants, Golden Key Division Limited Partnership, formerly known as Creekwood Golden Key Limited Partnership ("Golden Key"), Ohio Management, L.L.C. ("Ohio Management"), and Allied World Assurance Company (US), Inc. ("AWAC"), and dismissing Ms. Faciane's case with prejudice. For the reasons that follow, we reverse the trial court's September 25, 2017 summary judgment and remand for further proceedings.

         Facts and Procedural History

         Ms. Faciane resided at the Golden Key Apartments, apartment number 327, located at 4209 Division Street from November 9, 2013 until she moved out in May 2014. On March 16, 2016, Ms. Faciane filed suit against defendants/lessors, Golden Key (owner of the apartment complex) and Ohio Management (manager of the apartment complex) and Ohio Management's insurer, AWAC. Ms. Faciane argued that on April 14, 2015, while she was sleeping in her apartment, sheetrock fell from the apartment's ceiling due to a leak in the ceiling. In her petition, she claimed that "sheet rock fell from the apartment's ceiling, striking [her] on her left leg and body and causing her to slip down on floor thereby wetted by rain water [sic] injuring her neck and back." Ms. Faciane contended that defendants were liable for allowing their apartments to remain in disrepair, failing to properly repair the ceiling after being informed that it was leaking, failing to properly maintain the apartments and failing to institute proper inspection procedures to ensure repairs in her apartment were properly made.

         On August 18, 2017, defendants, Golden Key and Ohio Management, filed a motion for summary judgment arguing that the lease agreement between defendants and Ms. Faciane contained a provision requiring Ms. Faciane to hold defendants harmless for any personal injury or property claims. Defendants claimed that pursuant to La. R.S. 9:3221, Ms. Faciane assumed responsibility for the condition of the premises, including the roof of the apartment, except in case of defendants' neglect or failure to take action to remedy such defect after lessee's written notification of the defect.[1] Defendants further argued that they were not informed of any defect with Ms. Faciane's ceiling/roof until after the alleged accident occurred. Defendants contended that because they did not have actual or constructive knowledge of the defect in the roof, as required under the terms of the lease, they were entitled to summary judgment because they could not be held liable for Ms. Faciane's damages.[2] On August 24, 2017, AWAC, as the insurer of Ohio Management, filed a motion to adopt the motion for summary judgment filed by Golden Key and Ohio Management.[3]

         Ms. Faciane filed an opposition arguing that several genuine issues of material fact existed precluding summary judgment.[4] She argued that defendants admitted that there were at least two instances of prior notice of a hole in her apartment ceiling. Ms. Faciane contended that the only evidence of an alleged repair was her testimony that defendants only sprayed paint over the hole, not that defendants repaired the hole. She stated that after the initial attempted repair, she called the manager and told her that the ceiling had not been adequately fixed. Ms. Faciane further told the manager that the technician sprayed the "popcorn substance on her furniture." Ms. Faciane claimed that there was no proof that defendants performed inspections and/or adequately inspected their premises. Moreover, she argued that there was evidence of prior notice of the defective condition. Ms. Faciane stated that defendants were liable for her damages under both negligence and strict liability theories. Therefore, she contended that defendants were not entitled to summary judgment.

         On September 25, 2017, the trial court granted the motions for summary judgment in favor of defendants and against Ms. Faciane, dismissing her case with prejudice. This appeal followed.

         Discussion

         Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547. Summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue ...


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