Amedee v. Aimbridge Hospitality LLC

Decision Date01 December 2021
Docket Number2020-CA-0590
Citation332 So.3d 212
Parties Stephen AMEDEE & Tanya Amedee v. AIMBRIDGE HOSPITALITY LLC d/b/a Embassy Suites New Orleans & the City of New Orleans
CourtCourt of Appeal of Louisiana — District of US

332 So.3d 212

Stephen AMEDEE & Tanya Amedee
v.
AIMBRIDGE HOSPITALITY LLC d/b/a Embassy Suites New Orleans & the City of New Orleans

NO. 2020-CA-0590

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 1, 2021


Joseph S. Piacun, Reid S. Uzee, GENNUSA PIACUN, 4405 North I-10 Service Road, Suite 200, Metairie, LA 70006, COUNSEL FOR PLAINTIFF/APPELLEE.

Renee Goudeau, Corwin M. St. Raymond, Donesia D. Turner, Sunni J. LeBeouf, CITY ATTORNEY, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE.

Ralph J. Aucoin, Jr., Guy Dugue Perrier, Kristopher M. Gould, PERRIER & LACOSTE, LLC, 365 Canal Street, Suite 2550, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT.

(Court composed of Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase, Judge Dale N. Atkins )

JUDGE SANDRA CABRINA JENKINS

Appellant, Premium Parking of South Texas, LLC ("Premium Parking"), appeals the trial court's August 3, 2020 grant of summary judgment in favor of appellee, the City of New Orleans (the "City"), dismissing the plaintiff, Stephen Amedee's claims against the City with prejudice. For the foregoing reasons, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND1

This suit arises from an alleged trip and fall incident that occurred on South Peters Street adjacent to the Embassy Suites Hotel on or about January 17, 2016. Mr. Amedee filed his petition for damages, naming Aimbridge Hospitality, LLC d/b/a Embassy Suites New Orleans and the City as defendants. Thereafter, in a second supplemental and amended petition, Mr. Amedee added Premium Parking, Block by Block, L.L.C., and Downtown Development Unlimited as defendants.

Mr. Amedee alleged that while he was walking on the sidewalk adjacent to the Embassy Suites Hotel, he tripped and fell on an uneven and raised brick, and his right hand struck a metallic object located within the driveway entrance.

On March 16, 2020, the City filed its motion for summary judgment arguing that it did not have actual or constructive notice of the sidewalk's alleged defect and that it was not responsible for metal debris

332 So.3d 214

in the driveway of the Embassy Suites Hotel. The motion was opposed by Premium Parking.

On March 20, 2020, Premium Parking filed its third motion for summary judgment arguing that it did not have actual or constructive notice of the alleged vice or defect. On July 31, 2020, the trial court held a hearing on the motions for summary judgment. On August 3, 2020, the trial court granted the City's motion for summary judgment and dismissed plaintiff's claims against the City with prejudice, and denied Premium Parking's motion for summary judgment. This appeal follows.

Following oral argument, this Court issued an order for the parties to submit post-argument briefs on the narrow issue of a co-defendant's right to appeal a trial court's judgment dismissing another co-defendant from the suit.

STANDARD OF REVIEW

"Appellate courts review summary judgments under the de novo standard of review, using the same standard applied by the trial court in deciding the motion for summary judgment; as a result, we are not required to analyze the facts and evidence with deference to the judgment of the trial court or its reasons for judgment." Smith v. State , 2018-0197, p. 3 (La. App. 4 Cir. 1/9/19), 262 So.3d 977, 980 (quoting Orleans Par. Sch. Bd. v. Lexington Ins. Co ., 2012-0095, p. 5 (La. App. 4 Cir. 8/28/13), 123 So.3d 787, 790 ). Accordingly, "[a]fter an opportunity for adequate discovery, 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).

DISCUSSION

On appeal, Premium Parking argues that the trial court erred in dismissing the City from the suit. Premium Parking asserts two assignments of error:

1) The trial court's finding regarding the absence of constructive notice is inconsistent with other rulings by the trial court on the same issue.

2) The trial court erred in dismissing the City based on undisputed facts and legal authority when the City was responsible for the condition of the property at issue.

We begin our discussion by addressing Premium Parking's right to appeal the judgment dismissing Mr. Amedee's claims against the City.

Co-Defendant's Right to Appeal

Premium Parking contends that if summary judgment is not reversed, it will be precluded from submitting evidence and referencing the fault of the City. We agree.

La. C.C.P. art. 966(G) provides:

When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or non-party is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non-party. During the course of the trial, no party or person shall refer directly or indirectly to any such fault, nor shall that party or non-party's fault be submitted to the jury or included on the jury verdict form.

(Emphasis added.)

When a judgment dismisses one of several claims by the plaintiff, the plaintiff must appeal the adverse judgment to obtain

332 So.3d 215

affirmative relief. (Emphasis added.) Nunez v. Commercial Union Ins. Co. , 2000-3062, p. 1 (La. 2/16/01), 780 So.2d 348, 349. "[O]nce a final judgment acquires the authority of the thing adjudged, no court has jurisdiction to change the judgment, regardless of the magnitude of the final judgment's error." Barrasso Usdin Kupperman Freeman & Darver, L.L.C. v. Burch , 2014-1020, p. 10 (La. App. 4 Cir. 3/18/15), 163 So.3d 201, 208.

Mr. Amedee did not appeal the summary judgment dismissing his claims against the City. Therefore, the judgment became final between Mr. Amedee and the City. In this instance, we find that Premium Parking does not have the right to appeal the City's dismissal on summary judgment. Further, this Court has no authority to determine whether the grant of summary judgment in favor of the City was correct on its merits because Mr. Amedee failed to appeal. See Dixon v. Gray Ins. Co. , 17-29, pp. 2-3 (La. App. 5 Cir. 6/15/17), 223 So.3d 658, 660.

Split Among the Circuits

Louisiana's jurisprudence has consistently held that a defendant does not have the right to appeal a co-defendant's dismissal on summary judgment when the plaintiff has failed to appeal. Prior to the revisions of La. C.C.P. art. 966, while a defendant did not have the right to appeal a co-defendant's dismissal absent the plaintiff's appeal, the defendant may have been entitled to a reduction in judgment if able to prove the fault of the dismissed party.

In Grimes v. Louisiana Medical Mutual Insurance Co....

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  • Varnado v. 201 St. Charles Place, LLC
    • United States
    • Court of Appeal of Louisiana — District of US
    • 29 Junio 2022
    ...must appeal the adverse judgment to obtain affirmative relief." Amedee v. Aimbridge Hosp. LLC , 20-0590, p. 3 (La. App. 4 Cir. 12/1/21), 332 So. 3d 212, 214-15, writ granted , 21-01906 (La. 4/5/22), 335 So. 3d 248. This Court determined that because the plaintiff did not appeal, then a co-d......
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    • United States
    • Court of Appeal of Louisiana — District of US
    • 1 Diciembre 2021
    ..., 432 So.2d 823, 824 (La. 1983) ; Dickens v. Commercial Union Ins. Co., 99-0698, p. 3 (La. App. 1 Cir. 6/23/00), 762 So.2d 1193, 1196 ; 332 So.3d 212 Kelly v. Kelly, 11-1932, p. 4 (La. App. 1 Cir. 6/13/12), 94 So.3d 179, 181. "The presence of the plaintiff in court is not essential in all c......

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