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Griffin v. Design/Build Associates, Inc.

Court of Appeals of Louisiana, First Circuit

May 31, 2019


          On 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.

          Larry P. Boudreaux, Sr Counsel for Ella D. Kliebert Plaintiff/Appellant Thibodaux, LA Tyrone Griffin, d/b/a, Griffin Concrete Work

          J. 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


          GUIDRY, J.

         A 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.


         In September 2012, Louisiana Party Company, LLC ("LPC"), represented by Neal Patel, [1] entered into a contract with Design/Build Associates, Inc. ("DBA"), represented by Joseph Bergeron, III, [2] to 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."

         LPC 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.[3]

         A 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, [4] however, LPC filed a motion to reset the hearing, which the trial court granted.

         In 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.

         Initially 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 memorandum.[5]

         The 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.


         In his 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.

         After 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).[6] 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).

         In 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 ...

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