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Landry v. Usie

Court of Appeals of Louisiana, Third Circuit

December 30, 2019

CEDRICK LANDRY, ET AL.
v.
BRITTANY USIE, ET AL.

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 81374 HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

          Joslyn Renee Alex The Alex Law Firm COUNSEL FOR PLAINTIFFS-APPELLANTS: Cedrick Landry Cedrick Landry, o/b/o Cedrick Sengal

          Mark D. Boyer F. Dominic Amato Boyer, Hebert, Abels & Angelle, LLC COUNSEL FOR DEFENDANTS-APPELLEES: St. Martin Parish School Board Brittany Usie Lottie P. Beebe

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, Shannon J. Gremillion, D. Kent Savoie, and Candyce G. Perret, Judges.

          Gremillion, J., dissents for the reasons assigned by Judge Pickett.

          D. KENT SAVOIE JUDGE.

         Cedrick Landry, individually and on behalf of his son, Cedrick Senegal, [1] appeals a summary judgment rendered in favor of St. Martin Parish School Board and its superintendent, Dr. Lottie Beebe, as well as Brittany Usie, and dismissing his claims against them. For the following reasons, we affirm in part, reverse in part, and remand the matter for further proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         This action arises out of damages Mr. Senegal allegedly sustained while riding a school bus on April 30, 2013. The bus was driven by Ms. Usie. According to Plaintiffs' petition, Ms. Usie struck a curb and drove the bus into a pothole, which caused Mr. Senegal to be propelled into the air and injured. The incident occurred as the bus was exiting a parking lot of a Winn-Dixie.

         On April 24, 2014, Plaintiffs filed a Petition for Damages naming as Defendants St. Martin Parish School Board and its superintendent, Dr. Lottie Beebe, as well as Ms. Usie, and "XYZ Insurance Company".[2] Plaintiffs' petition asserted claims against Ms. Usie arising out of her alleged negligence in driving and operating the school bus, as well as claims against St. Martin Parish School Board and "XYZ Insurance company" alleging that they had in effect a liability policy that provided coverage for Ms. Usie's negligence. In addition, Plaintiffs asserted claims against St. Martin Parish School Board and Dr. Beebe arising out of their alleged negligence in hiring and/or supervising Ms. Usie.

         On February 12, 2016, St. Martin Parish School Board, Dr. Beebe, and Ms. Usie (collectively referred to herein as "Defendants") filed a Motion for Summary Judgment seeking the dismissal of Plaintiffs' claims against them and stating, "the evidence shows that there are no genuine issues of material fact regarding the Defendants' liability for damages sustained by the Plaintiffs." In their supporting memorandum, Defendants argued that there was no evidence to support a finding that Ms. Usie failed to maintain or operate the school bus in a safe and proper manner. Defendants also argued that there was no evidence to support a finding of negligent hiring or negligent supervision on the part of St. Martin Parish School Board and/or Dr. Beebe. In support of their motion for summary judgment, Defendants attached excerpts from Ms. Usie's deposition, as well as excerpts from Mr. Senegal's deposition.

         A hearing on Defendants' motion for summary judgment was held November 7, 2016. Plaintiffs did not file an opposition to the motion, and neither Plaintiffs' counsel, nor Plaintiffs, were present for the hearing. The trial court's minutes pertaining to the summary judgment hearing reflect:

[Defendants' counsel] Ms. Haynes stated she has not received an opposition. The court stated he has not received a summary judgment either. Ms. Hanes [sic] assumed this matter is unopposed.
The court granted the summary judgment due to no opposing counsels are present and it is past 10:00 a.m.
On November 23, 2016, the trial court rendered judgment ordering "that the Summary Judgment filed on behalf of ST. MARTIN PARISH SCHOOL BOARD, BRITTANY USIE AND LOTTIE P. BEEBE, is hereby GRANTED at Plaintiff's costs."

         Plaintiffs thereafter filed a motion seeking to set aside the summary judgment, and a hearing was held on March 24, 2017. Plaintiffs' counsel argued that she did not attend the hearing on Defendants' motion for summary judgment because an inspection of the bus had been scheduled for a date after the scheduled hearing date, and, therefore, she assumed that the scheduled hearing would not be held. Ultimately, the trial court signed a judgment denying Plaintiffs' motion to set aside the judgment on June 12, 2017. Plaintiffs appealed.

         On October 18, 2017, this court dismissed Plaintiffs' appeal for lack of jurisdiction because neither the November 7, 2016 judgment nor the June 12, 2017 judgment contained appropriate decretal language, and it remanded the case to the trial court for further proceedings. Landry v. Usie, 17-839 (La.App. 3 Cir. 10/18/17), 229 So.3d 1012.

         On remand, Plaintiffs filed a "Motion in Opposition to the Judgment and Motion to Reset Motion for Summary Judgment," wherein they argued the written judgment "attempts to expand the stated judgment to include individuals, parties, and issues not granted in the initial order." A hearing on the motion was scheduled for February 15, 2018.

         Meanwhile, on January 3, 2018, the trial court signed a judgment granting Defendants' February 2016 motion for summary judgment and dismissing with prejudice Plaintiffs' claims against St. Martin Parish School Board, Ms. Usie, and Dr. Beebe.

         On February 6, 2016, Plaintiffs filed an "Answer to Motion for Summary Judgment" and a "Memorandum in Support of the Motion in Opposition of the Motion for Summary Judgment" alleging genuine issues of material fact precluded summary judgment dismissal of Plaintiffs' claims.

         The matter was heard as scheduled on February 15, 2018. At this time, Plaintiffs' counsel objected to the scope of the summary judgment, arguing that it dismissed claims that were not at issue. The trial court noted counsel's objection, but denied Plaintiffs' motion. The trial court signed a judgment on March 8, 2018, denying Plaintiffs' "Motion in Opposition [to] the Judgment and Motion to Reset Motion for Summary Judgment[.]"

         Thereafter, Plaintiffs filed a notice of appeal of the January 3, 2018 summary judgment. On appeal, Plaintiffs present the following as issues for review: (1)"Did the trial [c]ourt err in granting of a motion for summary judgment while discovery is ongoing?" and (2) "Did the trial [c]ourt err in failing to grant [P]laintiffs' motion to reconsider ...


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