FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-13408,
DIVISION "C" Honorable Sidney H. Cates, Judge
J. Carimi CARIMI LAW FIRM COUNSEL FOR PLAINTIFF/APPELLANT,
W. Ellinghausen Aaron M. Maples KINNEY, ELLINGHAUSEN &
DESHAZO COUNSEL FOR DEFENDANTS/APPELLEES, AUDUBON COMMISSION,
AUDUBON NATURE INSTITUTE, INC., AND SCOTTSDALE INSURANCE
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Sandra Cabrina Jenkins
F. Love Judge.
appeal arose from a remand from the Louisiana Supreme Court.
Plaintiff alleged that he sustained serious bodily injuries
as a result of a slip and fall on grease while delivering
seafood at defendants' restaurant premises. After almost
twelve years of litigation, the defendants filed a motion for
summary judgment contending that the plaintiff had no
evidence to support his claims other than his self-serving
testimony. The trial court granted the motion for summary
judgment and dismissed his claims. Plaintiff filed a motion
for new trial, averring that newly discovered evidence was
not previously available. The trial court denied the motion
for new trial.
appeal, we found that plaintiff only sought review of the
denial of the motion for new trial, converted the appeal to a
writ, and denied writs. The Louisiana Supreme Court found
that we erred by not reviewing the motion for summary
judgment and remanded the matter for consideration of the
summary judgment on the merits.
contends that the trial court erred by granting the
defendants' motion for summary judgment because his
testimony was sufficient to create genuine issues of material
fact for trial.
that plaintiff failed to demonstrate factual support to
create genuine issues of material fact once the defendants
met their burden on a summary judgment. Therefore, the trial
court did not err by granting the motion for summary
judgment. We also find that the trial court did not abuse its
discretion by denying plaintiff's motion for new trial,
as the evidence was not "newly discovered." The
judgment of the trial court is affirmed.
BACKGROUND AND PROCEDURAL HISTORY
Edgefield was employed by New Orleans Gulf Seafood
("NOGS") as a delivery man in December 2004, when
he allegedly slipped and fell on grease while delivering
seafood to the Audubon Golf Clubhouse
("Clubhouse"). As a result, Mr. Edgefield alleged
that he sustained serious injuries to his back. Mr. Edgefield
filed a Petition for Damages on December 22, 2005, against
Audubon Nature Institute, Inc.; Audubon Commission; and
Scottsdale Insurance Company (collectively hereinafter
2009, the Louisiana Restaurant Association Self Insurer's
Fund and NOGS filed a Petition of Intervention seeking
subrogation for $80, 293.52 paid to Mr. Edgefield in
workers' compensation benefits. In 2015, Mr. Edgefield
hired new representation and his previous counsel also filed
a Petition of Intervention. Subsequently, in 2016, Mr.
Edgefield's new representation withdrew and filed a
Motion for Summary Judgment for expenses.
2017, Defendants filed a Motion for Summary Judgment
contending that no genuine issues of material fact existed
because Mr. Edgefield lacked factual support for his claim.
The trial court conducted a hearing and granted
Defendants' Motion for Summary Judgment, dismissing Mr.
Edgefield's Petition with prejudice. Both Petitions for
Intervention were also dismissed with prejudice. Eight days
after the trial court's ruling on the Motion for Summary
Judgment, Mr. Edgefield filed a Motion for New Trial alleging
that he possessed newly discovered evidence; namely, he found
1) one of the Audubon employees that allegedly helped him
stand up after the fall, 2) the plans for the Clubhouse, and
3) an expert report. The trial court denied the Motion for
New Trial. Mr. Edgefield's Petition for Devolutive Appeal
Edgefield's first appeal, Edgefield v. Audubon Nature
Inst., Inc., 17-1050 (La.App. 4 Cir. 9/12/18), ___ So.3d
___, 2018 WL 4403983, we found that Mr. Edgefield only
appealed the Motion for New Trial. As the denial of a Motion
for New Trial is a non-appealable, interlocutory judgment, we
exercised our discretion and converted the appeal to an
application for supervisory review. Id., 17-1050, p.
3, ___ So.3d at ___, 2018 WL 4403983, *1. Ultimately, we
determined that the trial court did not abuse its discretion
by denying Mr. Edgefield's Motion for New Trial.
Id., 17-1050, p. 7, ___ So.3d at ___, 2018 WL
4403983, *3. Mr. Edgefield sought review with the Louisiana
Supreme Court. The Supreme Court granted writs, vacated our
previous opinion, and remanded the matter for consideration
of the appeal on the merits, finding that Mr. Edgefield
intended to appeal the trial court's granting of
Defendants' Motion for Summary Judgment. Edgefield v.
Audubon Nature Inst., Inc., 18-1782 (La. 1/18/19), ___
So.3d ___, 2019 WL 404297.
remand, Mr. Edgefield asserts that the trial court erred by
granting Defendants' Motion for Summary Judgment because
1) the trial court "ignored" Mr. Edgefield's
testimony that the grease created an unreasonable risk of
harm, 2) the trial court "ignored" Mr.
Edgefield's testimony about his fall, 3) the trial court
"ignored" Lucinda Greenwood's testimony about
how the Clubhouse employees worked to keep the area around
the grease trap clean, and 4) the trial court failed to
consider the affidavit of a Clubhouse employee on the Motion
for New Trial.
motion for summary judgment "is designed to secure the
just, speedy, and inexpensive determination of every action,
except those disallowed by Article 969." La. C.C.P. art.
966(A)(2). "The procedure is favored and shall be
construed to accomplish these ends." Id.
"[A] motion for summary judgment shall be granted if the
motion, memorandum, and supporting documents 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(A)(3). "The only documents that may be filed in
support of or in opposition to the motion are pleadings,
memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written
stipulations, and admissions." La. C.C.P. art.
"[t]he burden of proof rests with the mover." La.
C.C.P. art. 966(D)(1). However, "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." Id. Instead, he must "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." Id. The burden then shifts
to "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." Id.
determining whether summary judgment is appropriate,
appellate courts review the evidence de novo."
Hebert v. St. Paul Fire & Marine Ins. Co.,
99-0333, p. 3 (La.App. 4 Cir. 2/23/00), 757 So.2d 814, 815.
The de novo process requires this Court to utilize
"the same criteria that govern the trial court's
consideration of whether summary judgment is appropriate,
i.e., whether there is a genuine issue of material fact and
whether the mover is entitled to judgment as a matter of
law." Champagne v. Ward, 03-3211, p. 4 (La.
1/19/05), 893 So.2d 773, 776.
Louisiana Supreme Court stated "that a 'genuine
issue' is a 'triable issue,' an issue in which
reasonable persons could disagree." Id.,
03-3211, p. 5, 893 So.2d at 777, quoting Jones v. Estate
of Santiago, 03-1424, p. 6 (La. 4/14/04), 870 So.2d
1002, 1006. "In determining whether an issue is
'genuine,' courts cannot consider the merits, make
credibility determinations, evaluate testimony or weigh
evidence." Smith v. Our Lady of the Lake Hosp.,
Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751,
quoting Simon v. Fasig-Tipton Co. of New York, 524
So.2d 788, 791 (La.App. 3rd Cir. 1988). Summary judgment is
rarely "appropriate for determinations based on
subjective facts of motive, intent, good faith, knowledge, or
malice, this court acknowledged . . . that 'summary
judgment may be granted on subjective intent issues when no
issue of material fact exists concerning the pertinent
intent.'" Jones, 03-1424, p. 6, 870 So.2d
at 1006, quoting Smith, 93-2512, p. 28, 639 So.2d at
the Louisiana Supreme Court summarized what constitutes a
material fact as follows:
A fact is "material" when its existence or
nonexistence may be essential to plaintiff's cause of
action under the applicable theory of recovery. Penalber
v. Blount, 550 So.2d 577, 583 (La.1989). "[F]acts
are material if they potentially insure or preclude recovery,
affect a litigant's ultimate success, or determine the
outcome of the legal dispute." South Louisiana Bank
v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991),
writs denied, 596 So.2d 211 (La.1992). Simply put, a
"material" fact is one that would matter on the
trial on the merits. Any doubt as to a dispute regarding a
material issue of fact must be resolved against granting the
motion and in favor of a trial on the merits. Sassone v.
Elder, 626 So.2d 345, 352 (La.1993); Industrial Sand
and Abrasives, Inc. v. Louisville and Nashville Railroad
Co., 427 So.2d 1152, 1153-54 (La.1983) (collecting
cases); McCoy v. Physicians & ...