97-2146 La.App. 4 Cir. 3/18/98, Rust Scaffold Rental & Erection, Inc. v. River City Joint Venture

• Decision Date: 18 March 1998
• Citation: 709 So.2d 1037
• Parties: 97-2146 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1037

709 So.2d 1037

97-2146 La.App. 4 Cir. 3/18/98

RUST SCAFFOLD RENTAL & ERECTION, INC. v. RIVER CITY JOINT VENTURE, et al.

No. 97-CA-2146.

Court of Appeal of Louisiana Fourth Circuit.

March 18, 1998.

F. Joseph Drolla, Jr., Metairie, for Appellant.

Jack A. Ricci, Gary J. Giepert, Ricci & Giepert, New Orleans, for Appellee.

Before LOBRANO, MURRAY and CIACCIO, JJ.

[97-2146 La.App. 4 Cir. 1] LOBRANO, Judge.

Plaintiff, Rust Scaffold Rental and Erection, Inc., appeals the granting of a summary judgment in favor of defendants, Grimaldi Construction, Inc. and C.R. Pittman Construction Company, Inc., A Joint Venture, ("Grimaldi/Pittman"), and Aetna Casualty Insurance Company ("Aetna"). We reverse and remand for trial on the merits.

The facts of this case are as follows: In 1994, Grimaldi/Pittman, as general contractor, entered into a building contract with River City Joint Venture for the construction of improvements on the River City Casino Site in New Orleans. Plaintiff entered into a subcontract with Grimaldi/Pittman to provide labor and scaffolding for this job. Plaintiff also entered into a subcontract with George M. Raymond Co. ("Raymond") to provide labor and materials for the River City Riverboat Terminal. On April 10, 1996, plaintiff filed a petition to enforce a laborers' and materialmen's lien and named as defendants River City, Grimaldi/Pittman, Raymond and Aetna. ¹ Plaintiff alleged a balance due in the total sum of $182,304.23 of which $71,830.84 was incurred by Grimaldi/Pittman [97-2146 La.App. 4 Cir. 2] and the balance by Raymond. The petition was answered by Grimaldi/Pittman and Aetna on June 4, 1996.

According to plaintiff, Rust Scaffold Services, Inc. is the holding company for plaintiff, Rust Scaffold Rental and Erection, Inc. ("Rust Erection"), its union subsidiary, and for Rust Scaffold Builders, Inc. ("Rust Builders"), its non-union subsidiary. ² Subsequent to the filing of the answer by Grimaldi/Pittman and Aetna, Shannon Roberts, a representative of Rust Builders, and Ralph Grimaldi of Grimaldi/Pittman, negotiated a payment by Grimaldi/Pittman in the sum of $7,872.60. Grimaldi/Pittman argues that this amount represented a settlement of all of its accounts with plaintiff on the River City Casino Project. Plaintiff claims that this amount only settled Grimaldi/Pittman's account with Rust Builders (Kenner office), but did not settle Grimaldi/Pittman's account with Rust Erection.

It is undisputed that a $7,872.60 check dated September 26, 1996 from Grimaldi/Pittman was paid to the order of Rust Scaffold Rental and Erection Inc. and contained the following language on the reverse side: "For full and final compromise settlement of all accounts on the River City Casino Project." ³ This check was sent to a lockbox belonging to Rust Scaffold Western Region at The First National Bank of Chicago and was deposited by that bank.

Grimaldi/Pittman and Aetna filed a motion for summary judgment asking that plaintiff's claims against them be dismissed because there had been a valid compromise and settlement of those claims. In support of its motion, [97-2146 La.App. 4 Cir. 3] Grimaldi/Pittman and Aetna relied on the affidavits of Michael Pittman, a representative of C.R. Pittman Construction Company, Inc., and August Grimaldi ⁴, a representative of Grimaldi Construction, Inc. In opposition, plaintiff relied on the affidavits of Shannon Roberts, the credit manager of Rust Builders' Kenner office in 1996, and J. Wayne Barbin, the regional credit manager of Rust Erection in 1996. Attached to Roberts' affidavit is a letter dated June 18, 1996 from her to Ralph Grimaldi about a proposed settlement of an account of Grimaldi/Pittman. Also attached is the aforementioned check from Grimaldi/Pittman to Rust Scaffold Rental and Erection, Inc. for $7,872.60 along with the deposit information and check stub. Attached to Barbin's affidavit was a statement dated August 25, 1995 which was sent to Grimaldi/Pittman by plaintiff showing an amount due of $71,830.84.

The trial judge granted the motion for summary judgment, but did not give reasons. This appeal by plaintiff followed.

Code of Civil Procedure Article 966 was amended by the legislature in 1996. Subsequently, there was disagreement among the various courts of appeal as to the intent of the legislature with respect to those amendments. In response, the legislature again amended article 966 in 1997 to provide that all decisions inconsistent with the Third Circuit case of Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41, would be legislatively overruled. Subsequent to those 1997 amendments, our colleagues of the Second Circuit, in Berzas v. OXY, USA, Inc., 29,835 (La.App. 2 Cir. 9/24/97), 699 So.2d 1149, gave a succinct and [97-2146 La.App. 4 Cir. 4] comprehensive analysis of the current status of the summary judgment procedure. The court stated:

Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Bullock v. Homestead Insurance Company, 29,536 (La.App.2d Cir. 6/20/97), 697 So.2d 712. An appellate court thus asks the same question as does the trial court in determining whether summary judgment is appropriate: whether there is any issue of material fact, and whether the mover is entitled to judgment as a matter of law. Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318 (La.1993); Powers v. Tucker, 29,190 (La.App.2d Cir. 2/26/97), 690 So.2d 922; Bullock v. Homestead Insurance Company, supra.

In Louisiana, the law regarding summary judgment is set forth in La. C.C.P. art. 966. Previously, the jurisprudence construing this article provided that summary judgments were not favored, were to be used only cautiously and sparingly and supporting documents of the mover were to be strictly construed by the courts while the documents submitted by the party opposing the motion were to be treated indulgently. Any doubt was to be resolved against granting the summary judgment and in favor of trial on the merits. Hayes v. Autin, 96-287 (La.App. 3d Cir. 12/26/96), 685 So.2d 691, writ denied 97-0281 (La.3/14/97), 690 So.2d 41.

In 1996, La. C.C.P. art. 966 was amended to legislatively overrule the jurisprudential presumption against summary judgment. The amendment "leveled the playing field" between the parties by allowing the supporting documents submitted by the two parties to be scrutinized equally and removing the overriding presumption in favor of trial on the merits. Hayes v. Autin, supra; La. Acts 1996 (First Ex. Session), No. 9.

As noted in Hayes v. Autin, supra, under the 1996 amendment, the initial burden of proof remained with the mover to show that no genuine issue of material fact exists. However, once the mover made a prima facie showing that the motion should be granted, the burden of proof shifts to the nonmoving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the [97-2146 La.App. 4 Cir. 5] nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Hayes v. Autin, supra; Dinger v. Shea, 96-448 (La.App. 3d Cir. 12/11/96), 685 So.2d 485; Tybussek v. Wong, 96-1981 (La.App. 4th Cir. 2/26/97), 690 So.2d 225.

* * * * * *

In 1997, La. C.C.P. art. 966 was again amended by Acts 1997, No 483. The act provides that the amendment is intended to further clarify Acts 1996, No. 9, Section 1 of the First Extraordinary Session of 1996, and to legislatively overrule all cases inconsistent with Hayes v. Autin, supra.

* * * * * *

The amended versions of the article are procedural in nature and therefore subject to retroactive application. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir. 8/21/96), 679 So.2d 477; Curtis v. Curtis, 28,698 (La.App.2d Cir. 9/25/96), 680 So.2d 1327; Short v. Giffin, 96-0361 (La.App. 4th Cir. 8/21/96), 682 So.2d 249, writ denied, 96-3063 (La.3/7/97), 689 So.2d 1372.

29,835 at pp. 4-8, 699 So.2d at 1151-1154.

Code of Civil Procedure Article 967 states, in part: "When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him." In accordance with these now settled procedural rules we now address and decide the merits of this appeal.

Plaintiff contends that the trial court erred in concluding that when The First National Bank of Chicago deposited the check with the restrictive endorsement, it constituted an accord and satisfaction of the entire debt owed by Grimaldi/Pittman to plaintiff. Plaintiff argues that there are genuine issues of [97-2146 La.App. 4 Cir. 6] unresolved material fact which require a trial on the merits. Plaintiff claims that Roberts' affidavit established that she intended to settle only the account Grimaldi/Pittman had with Rust Builders and that she did not have the authority to settle the Grimaldi/Pittman account with Rust Erection. Furthermore, plaintiff...