Williams v. City of New Orleans

• Decision Date: 20 April 2016
• Docket Number: No. 2015–CA–0769.,2015–CA–0769.
• Citation: 193 So.3d 259
• Court: Court of Appeal of Louisiana — District of US
• Parties: Cora WILLIAMS v. CITY OF NEW ORLEANS, Beck Disaster Recovery & Louisiana Citizens Property Insurance Corporation.

193 So.3d 259

Cora WILLIAMS
v.
CITY OF NEW ORLEANS, Beck Disaster Recovery & Louisiana Citizens Property Insurance Corporation.

No. 2015–CA–0769.

Court of Appeal of Louisiana, Fourth Circuit.

April 20, 2016.

193 So.3d 261

James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Plaintiff/Appellee, Cora Williams.

Joyce Gerdes Joseph, Deputy City Attorney, Cherrell R. Simms, Senior Chief Deputy City Attorney, Sharonda R. Williams, City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee, City of New Orleans.

Richard S. Vale, Pamela N. Molnar, William L. Brockman, Blue Williams, L.L.P., Metairie, LA, for Defendant/Appellant, DRC Emergency Services, Inc.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR. ).

TERRI F. LOVE, Judge.

Plaintiff's townhouse in New Orleans was demolished although it was not condemned or slated for demolition. Plaintiff filed a motion for partial summary judgment contending that she was a third party beneficiary to the contract between the City of New Orleans and the demolition contractor. The trial court denied the motion, but once re-urged, the trial court granted plaintiff's motion finding that the contract anticipated that the plaintiff was a third party beneficiary to the contract. The demolition contractor appeals, contending that the issue of whether plaintiff is a third party beneficiary is a mixed question of law and fact improper on a motion for summary judgment. The contract between the City of New Orleans and the demolition contractor states that the demolition contractor will repair damage caused during demolitions. This stipulation in favor of other property owners meets the criteria for finding a stipulation pour autrui. As a third party property owner, plaintiff's townhouse was demolished

193 So.3d 262

during the demolition of her neighbor's townhouse. Therefore, we find that plaintiff is a third party beneficiary to the contract between the City of New Orleans and the demolition contractor. The trial court did not err, and we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Following Hurricane Katrina, the City of New Orleans (“City”) entered into a contract with Beck Disaster Recovery (“BDR”) to provide project management services for the City's demolition program. The City then entered into a contract with DRC Emergency Services, LLC (“DRC”) to perform the demolitions managed by BDR.

Cora Williams, the owner of a townhouse on Lakeview Court in New Orleans, had gutted her townhouse, treated it with Boracare, and replaced the roof. Mrs. Williams was waiting for funding to finish rebuilding her rental property. However, in April 2008, DRC demolished Mrs. Williams' townhouse located at 5235 Lakeview Court while it was demolishing 5237 Lakeview Court. Upon discovering the demolition, Mrs. Williams attempted to seek a remedy from the City for the wrongful demolition. The City did not provide Mrs. Williams with relief.

Mrs. Williams subsequently filed a Petition for Damages against the City, BDR, and Louisiana Citizens Property Insurance Corporation (“LCPIC”) seeking damages for the wrongful demolition of her townhouse. Mrs. Williams filed a Motion for Partial Summary Judgment regarding liability and undisputed damages. Mrs. Williams then filed her First Amended Petition, which added DRC as an additional defendant. The trial court denied Mrs. Williams' Motion for Partial Summary Judgment.

LCPIC filed a Motion for Summary Judgment seeking dismissal from the suit. However, Mrs. Williams filed a Cross–Motion for Partial Summary Judgment against LCPIC in response. The trial court denied both LCPIC's and Mrs. Williams' Motions for Summary Judgment.

Mrs. Williams then filed a Motion for Partial Summary Judgment regarding DRC's liability and her status as a third party beneficiary to the contract between DRC and the City. LCPIC filed a Cross–Claim and Third Party Demand seeking indemnity against the City, BDR, DRC, and Cahaba Disaster Recovery, LLC (“Cahaba”).¹ The trial court denied Mrs. Williams' Motion for Partial Summary Judgment against DRC.

LCPIC filed a Motion to Dismiss with prejudice, which the trial court granted. LCPIC then filed a Motion to Dismiss its cross-claims and third party demand against the City, BDR, DRC, and Cahaba, which the trial court granted. Mrs. Williams and BDR filed a Joint Motion for Dismissal with prejudice, which the trial court also granted.²

DRC then filed a Motion for Summary Judgment contending Mrs. Williams was not a third party beneficiary to the contract between DRC and the City, and that DRC was not negligent by following the plans and specifications provided. Mrs. Williams responded by filing a Cross–Motion for Partial Summary Judgment against the City and DRC. Following a hearing, the trial court partially granted Mrs. Williams' Cross–Motion for Partial Summary Judgment, and found that, as a question of law, Mrs. Williams was a third

193 So.3d 263

party beneficiary to DRC's contract with the City. The trial court also denied DRC's Motion for Summary Judgment. Mrs. Williams filed a Notice of Intent to seek writs, which is not before this Court on appeal.³ DRC filed a Motion for Appeal seeking to overturn the trial court's partial grant of Mrs. Williams' Cross–Motion for Partial Summary Judgment.

DRC contends that the trial court should not have considered Mrs. Williams' Cross–Motion for Partial Summary Judgment because it previously denied a similar motion. DRC also asserts that whether Mrs. Williams was a third party beneficiary to the contract with the City was contested and a mixed question of law and fact that should be reserved for the factfinder.

SUMMARY JUDGMENT

“The summary judgment procedure 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 burden of proof remains 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,” then the mover must merely “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.” La. C.C.P. art. 966(D)(1). “The burden is on 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.” La. C.C.P. art. 966(D)(1). “When faced with a supported motion for summary judgment, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial.” Huber v. Liberty Mut. Ins. Co., 00–0679, pp. 5–6 (La.App. 4 Cir. 2/7/01), 780 So.2d 551, 554.

“Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate.” Bank One, Nat. Ass'n v. Velten, 04–2001, p. 4 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 457. “Both the evidence and all inferences drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in his favor.” Hebert v. St. Paul Fire & Marine Ins. Co., 99–0333, p. 3 (La.App. 4 Cir. 2/23/00), 757 So.2d 814, 816.

PROCEDURAL POSTURE

DRC contends that the trial court should not have considered Mrs. Williams' Cross–Motion for Partial Summary Judgment because a similar motion was previously denied and the law of the case doctrine prevents reconsideration.

“The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case.” KeyClick Outsourcing, Inc. v. Ochsner Health

193 So.3d 264

Plan, Inc., 11–0598, p. 7 (La.App. 4 Cir. 3/14/12), 89 So.3d 1207, 1211. “The policy reasons behind the doctrine include: (i) avoiding re-litigation of the same issue, (ii) promoting consistency of result in the same litigation, and (iii) promoting efficiency and fairness to both parties by affording a single...