Crump v. Lake Bruin Recreation and Water Conservation District

• Decision Date: 10 April 2019
• Docket Number: No. 52,559-CA,52,559-CA
• Citation: 267 So.3d 1229
• Parties: Johnnie CRUMP, Plaintiff-Appellant v. LAKE BRUIN RECREATION AND WATER CONSERVATION DISTRICT, Defendant-Appellee
• Court: Court of Appeal of Louisiana — District of US

267 So.3d 1229

Johnnie CRUMP, Plaintiff-Appellant

v.LAKE BRUIN RECREATION AND WATER CONSERVATION DISTRICT, Defendant-Appellee

No. 52,559-CA

Court of Appeal of Louisiana, Second Circuit.

April 10, 2019

ANTHONY J. BRUSCATO, Monroe, Counsel for Appellant

GOLD, WEEMS, BRUSER, SUES & RUNDELL, By: Eugene J. SuesBrandon A. Sues, Alexandria, Counsel for Appellee Lake Bruin Recreation and Water Conservation District

BLAKE E. RYLAND, LEISA B. LAWSON, ASSISTANT ATTORNEY GENERALS, Counsel for Appellee La. Dept. of Culture, Recreation & Tourism

Before MOORE, PITMAN, and McCALLUM, JJ.

MOORE, J.

Johnnie Crump appeals a judgment that sustained two motions for summary judgment and dismissed his personal injury claims. For the reasons expressed, we affirm.

FACTS

In May 2015, Crump went to Lake Bruin State Park, in Tensas Parish, to go fishing. He entered the park, walked out on one of the piers, set down his tackle box, and turned around to get something out of his car. However, on his first step toward the car, his right foot went through a rotten plank. He fell backwards, his right leg going all the way through the hole, and the rest of him trapped on the surface of the pier until EMTs arrived. The incident cut and scraped his right leg, sprained his left wrist, and generally hurt his shoulder, neck and back.

PROCEDURAL HISTORY

Crump filed this suit against the Lake Bruin Recreation & Water Conservation District ("the Conservation District") on May 9, 2016, alleging that it was a political subdivision of the State of Louisiana and was either negligent or strictly liable for his injuries.

The Conservation District filed an exception of no cause of action as to any claim for strict liability; the district court sustained this, based on La. R.S. 9:2800C, and Crump did not seek review of that ruling. The court set trial for September 18, 2017. The State of Louisiana, though not named a defendant, filed an answer denying any liability.

Crump filed a supplemental and amending petition joining as defendant the State Department of Culture, Recreation & Tourism ("the State") on November 21, 2016. This alleged that the State maintained the park premises and failed to inspect or repair the pier. The State answered asserting the Recreational Use Immunity statute, La. R.S. 9:2795.

In April 2017, the Conservation District filed the instant motion for summary judgment asserting that it did not own, maintain, control, or have care or responsibility for the park; rather, the State did. In support, it attached the affidavit of its president, David McEacharn, who attested to these facts and that the Conservation District did not even have any employees at the park. The court set the MSJ for hearing on August 2.

In May 2017, the State filed a motion to substitute counsel. Within a few weeks, new counsel noticed a records deposition to Crump regarding his income for the three preceding years. On June 16, the State asked for a continuance of the trial, set for September 18, since counsel had just enrolled.

On the same date, June 16, the State filed this motion for summary judgment asserting R.S. 9:2795. In support, it attached the deposition of the program director of the Office of State Parks, Gary Ramsey, who asserted that Lake Bruin was a state park, not commercial, and was designed for recreational purposes; and that there had been no other accidents reported on its piers. The court set this MSJ for hearing also on August 2.

A month later, on July 17, the State filed an "unopposed" motion for continuance urging that discovery was not yet complete. The court reset both MSJs for hearing on November 9.

On October 25, Crump filed an opposition to the State's MSJ, arguing chiefly that R.S. 9:2795 provides no immunity for willful failure to warn or for gross negligence. In support he offered his own affidavit, in which he said that after the accident he talked to some park employees, and they told him that "everyone at the park had known for quite awhile [sic ] that pier boards had gotten old and weak" and "work orders had been put in" but the "maintenance work had not been authorized[.]" He also filed a motion for continuance arguing that he had sent discovery requests to the State on August 26, 2016, received no response till July 7, 2017, and he (the plaintiff) needed more time to find "key witnesses." The court continued the hearing on both MSJs without date.

On November 13, 2017, the court set both MSJs for hearing on April 4, 2018. In early March 2018, Crump noticed depositions of five fact witnesses, to be held on March 9, 2018 (26 days before the hearing). Crump's counsel received the transcripts of these depositions on March 29 (6 days before the hearing).

On April 2, 2018 (2 days before the hearing), Crump filed a motion for permission to file supplementary exhibits in opposition to the MSJs – specifically, the five depositions he just took. These, he argued, pointed to the need for additional written discovery. Crump also filed a motion for continuance asserting that discovery "remains incomplete."

The Conservation District and the State opposed both motions.

ACTION OF THE DISTRICT COURT

At the hearing on April 4, 2018, Crump's counsel argued that he had learned about the "work order" only one day before he took the depositions, but the pier was never closed, the work never done, and then Crump fell through it. The court denied Crump's motion to file supplementary exhibits, but allowed counsel to proffer them. The court also denied Crump's motion for continuance, noting that the MSJs had been pending for almost a year.

After hearing argument, the court granted both MSJs, finding no evidence or legal authority that the Conservation District owned Lake Bruin Park, and finding that the Recreational Use Immunity statute barred the claim against the State.

The court rendered one judgment sustaining both MSJs and certifying this action as final. Crump has appealed, raising four assignments of error.

DISCUSSION

Supplementary Opposition and Motion for Continuance

By his first assignment of error, Crump urges the court erred or abused its discretion in denying the plaintiff's motion to file a supplementary summary judgment opposition consisting of the March 9, 2018, depositions and attachments and plaintiff's memorandum containing pinpoint cites to the relevant deposition testimony. By his second assignment, Crump urges the court erred or abused its discretion in denying the plaintiff's motion to continue the hearing date.

Crump concedes that under La. C.C.P. art. 966, a defendant may move for summary judgment at any time; however, Crump considers it a "first strike" MSJ when a defendant files an MSJ shortly after being served and before any discovery has taken place. He contends that both of these MSJs were filed and set for hearing before he received any response to his written discovery requests. Specifically, in July 2017, both motions had been filed, but the plaintiff had just then learned the names of the witnesses, and had no other option than to move for continuance. (Crump suggests that he was being "too courteous" to defense counsel, and should have immediately moved for sanctions when the State failed to answer his discovery.) He also shows that he had difficulties scheduling the depositions: he asked for four deposition dates between July and November 2017, and by the time the State responded, the only available date was March 9, 2018; as the hearing was already set for April 4, this set up an "ambush." (Here, Crump reiterates that he was "too courteous" and should have simply subpoenaed the witnesses.) He concludes that in these circumstances, the denial of these motions was unfair and incentivizes bad and contentious behavior.

Motions for, and oppositions to, summary judgment are regulated by La. C.C.P. art. 966B:

B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:

(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.

(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.

(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.

(4) If the deadline for filing and serving a motion, an opposition, or a reply memorandum falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday.

A plain reading of this subsection is that summary judgment procedure will usually encompass three filings: a motion, an opposition, and a reply. There is no provision for a surreply or supplementary opposition. Baez v. Hospital Service Dist. No. 3 , 16-951 (La. App. 3 Cir. 4/5/17), 216 So.3d 98. A court may, in its discretion, permit a surreply to allow the opponent to contest matters presented for the first time in the mover's reply, if the surreply is filed within the delays of Art. 966B. Dufour v. Schumacher Group of La. Inc. , 18-20 (La. App. 3 Cir. 8/1/18), 252 So.3d 1023, writ denied , 2018-1456 (La. 11/20/18), 256 So.3d 991. A surreply may not be used to correct an alleged mischaracterization or to reiterate arguments already made. Id. , citing Nix El v. Williams , 174 F.Supp.3d 87 (D.D.C. 2016). Crump's motion for permission to file a supplementary memorandum in opposition to MSJ alleged only that counsel wished to provide pinpoint citations to key testimony and exhibits. There is no assertion that the State raised, in its reply memorandum, new issues requiring a response. Moreover, Crump's motion was filed a mere two days before...