appeal from the Thirty-Second Judicial District Court In and
for the Parish of Terrebonne State of Louisiana Docket Number
174520 Honorable George J. Larke, Jr., Judge Presiding.
P. Boudreaux, Sr Counsel for Ella D. Kliebert
Plaintiff/Appellant Thibodaux, LA Tyrone Griffin, d/b/a,
Griffin Concrete Work
Rodney Messina Counsel for Janna Messina Kiefer Defendant/
Appellee Baton Rouge, LA Design/Build Associates, Inc.
William A. Eroche Counsel for Houma, LA Defendant/Appellee
and Louisiana Party Co., LLC Andre G. Coudrain Jamie Polozola
Gomez Hammond, LA
BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
subcontractor appeals the summary judgment dismissal of its
claims against a project owner in a lawsuit to recover
payments that the subcontractor claimed were due and owing
for concrete work performed.
AND PROCEDURAL HISTORY
September 2012, Louisiana Party Company, LLC
("LPC"), represented by Neal Patel,  entered into a
contract with Design/Build Associates, Inc.
("DBA"), represented by Joseph Bergeron, III,
construct a shopping center on Martin Luther King Boulevard
in Houma, Louisiana. Tyrone Griffin, doing business as a sole
proprietorship under the trade name Griffin Concrete Work,
was hired to perform concrete finishing work on the project
in 2013. Upon failing to receive payment for $59, 118.75
worth of work itemized on an invoice dated December 20, 2013,
which work was billed to DBA, Mr. Griffin filed a
"Petition for Breach of Contract, Costs and Attorney
Fees" against DBA and LPC on May 5, 2015. In the
petition, Mr. Griffin alleged that LPC and DBA had
"contracted with petitioner for the performance of
cement finishing work for the construction and/or improvement
of the immovable property located at 1795 Martin Luther King
Boulevard, Houma, Louisiana 70360."
filed an answer to Mr. Griffin's petition denying
liability and asserting various affirmative defenses. In that
pleading, LPC also asserted a reconventional demand seeking
payment for work that Mr. Griffin allegedly did not complete
and further seeking reimbursement for costs incurred to
repair allegedly defective work performed by Mr. Griffin. On
June 16, 2015, LPC filed a motion for summary judgment,
requesting that Mr. Griffin's claims be dismissed because
there was no contractual privity between it and Mr. Griffin
and because any claim Mr. Griffin may have had against LPC
pursuant to the Louisiana Private Works Act, La. R.S.
9:4801-4855, was extinguished upon his failure to timely
institute suit to preserve the privilege.
hearing on the motion for summary judgment was initially
scheduled for July 31, 2015, but was later continued to
September 25, 2015, and then continued without date, as
discovery remained ongoing in the case. Roughly a month
before the case was scheduled to go to trial,  however, LPC
filed a motion to reset the hearing, which the trial court
addition to the motion to reset the hearing, LPC also filed a
"Supplemental and Amending Memorandum" in support
of its motion for summary judgment. In the supplemental and
amending memorandum, LPC acknowledged having entered into a
verbal agreement with Mr. Griffin to perform a small,
separate job of pouring concrete for a temporary driveway at
an agreed-upon price of $13, 000.00, which LPC claimed it
paid in full. However, LPC expressly denied having any other
verbal agreement with Mr. Griffin and expressly denied having
contracted with Mr. Griffin in any form for the $59, 118.75
worth of cement work claimed. Instead, LPC asserted that the
$59, 118.75 worth of work was performed by Mr. Griffin
pursuant to his agreement with DBA.
after LPC filed its motion to reset the hearing on its motion
for summary judgment and its supplemental and amending
memorandum in support of its motion, Mr. Griffin filed a
motion to amend his petition to add a claim of unjust
enrichment pursuant to La. C.C. art. 2298, but the trial
court denied his motion. Thereafter, Mr. Griffin filed a
memorandum in opposition to LPC's motion for summary
judgment on June 20, 2018. In his memorandum, Mr. Griffin
asserted that if he "establishes that a verbal agreement
existed between him and LPC, the motion [for summary
judgment] should be denied, and he will prevail at
trial." Based on evidence attached to his memorandum,
Mr. Griffin argued that a genuine issue of material fact
existed as to "whether a verbal agreement was reached
between [him] and LPC to complete the concrete work in
question[, ]" which would preclude summary judgment.
Thereafter, both LPC and Mr. Griffin filed reply memoranda,
with LPC submitting additional evidence with its reply
trial court conducted the hearing on LPC's motion for
summary judgment on June 29, 2018. After allowing counsel for
the parties an opportunity to present their arguments on the
motion, the trial court observed that it had "read
through everything," and therefore was prepared to
render judgment. First, the trial court declared that
"the portion of the plaintiffs suit to enforce a lien is
time-barred on its face because plaintiff did not file suit
within one year after the expiration of the time for filing
claims." Then after discussing the evidence submitted,
the trial court concluded that Mr. Griffin did not present
sufficient evidence to corroborate the existence of an oral
contract between him and LPC for the $59, 118.75 worth of
cement work and accordingly granted summary judgment in favor
of LPC. The trial court signed a judgment on July 18, 2018,
to that effect that further dismissed Mr. Griffin's
action with prejudice. Mr. Griffin filed a petition for the
instant devolutive appeal on September 19, 2018, which was
granted by the trial court.
sole assignment of error, Mr. Griffin alleges that the trial
court erred, as a matter of law, in granting LPC's motion
for summary judgment.
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) & (C)(1). The 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). 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). 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).
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. In determining whether summary judgment is appropriate,
appellate courts review evidence denovo
under the same criteria that govern the trial court's
determination of whether summary judgment is appropriate.
Because the applicable substantive law determines
materiality, whether a particular fact in dispute is material
can be seen only ...