Edgefield v. Audubon Nature Inst., Inc., 2017-CA-1050

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: LOBRANO, J.
• Parties: CARL EDGEFIELD v. AUDUBON NATURE INSTITUTE, INC., AUDUBON COMMISSION AND SCOTTSDALE INSURANCE COMPANY
• Docket Number: NO. 2017-CA-1050,2017-CA-1050
• Decision Date: 12 September 2018

CARL EDGEFIELD
v.
AUDUBON NATURE INSTITUTE, INC.,
AUDUBON COMMISSION AND SCOTTSDALE INSURANCE COMPANY

NO. 2017-CA-1050

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

September 12, 2018

LOBRANO, J. DISSENTS AND ASSIGNS REASONS.

I respectfully dissent. I would deny the Motion to Dismiss filed by the defendants/appellees, Audubon Nature Institute, Inc., Audubon Commissioners, and Scottsdale Insurance Company (collectively "Defendants") and find that, based on the record before me, this Court enjoys appellate jurisdiction to review the September 7, 2017 judgment, which granted Defendants' Motion for Summary Judgment ("September 7^th Judgment") and dismissed the entirety of the case filed by the plaintiff/appellant, Carl Edgefield ("Plaintiff"). Defendants argue that the issues for consideration in this appeal should be limited to the September 26, 2017 order, which summarily denied Plaintiff's Motion for New Trial without a contradictory hearing ("September 26^th Order"). I disagree.

In Wiles v. Wiles, 2015-1302, pp. 2-3 (La.App. 4 Cir. 5/18/16), 193 So.3d 397, 398, we stated:

It is well established that the denial of a motion for new trial is an interlocutory and non-appealable judgment. Habitat, Inc. v. Commons Condominiums, L.L.C., 11-1384, p. 6 (La.App. 4 Cir. 7/11/12), 97 So.3d 1126, 1131. However, our courts have consistently considered an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when, as here, it is clear from the appellant's brief that the intent is to appeal the merits of the case. See Clotworthy v. Scaglione, 11-1733, p. 3 (La.App. 4 Cir. 5/23/12), 95 So.3d 518, 520; Lozier v. Estate of Elmer, 10-0754, p. 4 (La.App. 5 Cir. 2/15/11), 64 So.3d 237, 239; McKee v.

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Wal-Mart, Stores, Inc., 06-1672, p. 8 (La.App. 1 Cir. 6/8/07), 964 So.2d 1008, 1013.

A review of the record reveals that Plaintiff is appealing the September 7^th Judgment for the following reasons.

The September 7^th Judgment reads in pertinent part as follows:

JUDGMENT
After considering the pleadings filed, the arguments of counsel, and the applicable law:

IT IS ORDERED, ADJUDGED AND DECREED that Defendants, Audubon Nature Institute, Inc., The Audubon Commission and Scottsdale Insurance Company's Motion for Summary Judgment be and is hereby GRANTED, and all claims asserted by Plaintiff, Carl Edgefield against Audubon Nature Institute, Inc., the Audubon Commission and Scottsdale Insurance Company in the above- captioned matter are hereby DISMISSED, with prejudice.
...
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff, Carl Edgefield's Petition for Damages filed in this matter is hereby DISMISSED, with prejudice.

...

JUDGMENT READ AND SIGNED, this 7^th day of September, 2017, at New Orleans, Louisiana.

The September 26th Order reads as follows:

ORDER
Considering the foregoing Motion;

IT IS ORDERED that the MOTION FOR NEW TRIAL is hereby set for hearing on the ___ day of __________, 2017 at __________ o'clock A.M.

New Orleans, Louisiana, this 26^th day of September 2017.

The order was stamped DENIED and signed by the district court judge.

In his Motion for Devolutive Appeal, Plaintiff moves to take "a devolutive appeal from the Judgment of the trial court rendered in this case" and "asks that he be granted an order of appeal to the Court of Appeal, Fourth Circuit."

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Plaintiff's motion clearly states that he is appealing the judgment of the district court. On October 30, 2017, the district court granted Plaintiff's Devolutive Appeal, and the order signed by the district court judge, reads as follows:

ORDER
Considering the foregoing Motion;

IT IS ORDERED that the plaintiff, Carl Edgefield, is hereby granted a devolutive appeal.

IT IS FURTHER ORDERED that no security is required of plaintiff for this Devolutive Appeal and that said Appeal is returnable to the Court of Appeal, Fourth Circuit, as provided by law.

The order, without specification, grants Plaintiff's devolutive appeal. I find that the district court judge granted the devolutive appeal from the judgment on the merits, as appeals can only be taken from final appealable judgments. The September 26^th Order denying Plaintiff's Motion for a New Trial was not a final judgment, but interlocutory and non-appealable.

Additionally, in their Motion to Dismiss Appeal, Defendants argue that an appeal cannot be maintained as an attempt to appeal the final judgment on the record as Plaintiff has not shown his intention to appeal the September 7^th Judgment. However, in his Reply, Plaintiff argues that he had appealed from all of the rulings and the judgment of the district court by his Motion for Devolutive Appeal. And, in his appellant brief, he was able to address those rulings and judgment of the district court, with which he disagreed, and wanted this Court to reverse.

The majority fails to address the Plaintiff's briefs as a whole. In his appellant brief, Plaintiff lists various "Issues presented for Review" as follows in pertinent part:

1. "Is an owner/operator of a restaurant who allows grease to escape from its grease traps unto its sidewalk liable to a delivery man invited unto its premises and slips in said grease?"

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2. "Isn't the owner/operator of the restaurant and its premises and the party in control of the grease clean out and the sidewalk and stairs leading to its kitchen responsible for keeping the sidewalk safe and free of grease?"

3. "Isn't the legal criteria for defeating a 'Motion for Summary Judgment' a simple showing that there exist a question of material fact?"

The first two issues are directly related the part of Defendants' Motion for Summary Judgment wherein Defendants argue that Plaintiff cannot prove any negligence on their part. Plaintiff argues that Defendants as "the owner is responsible for the unsafe condition of his premises that causes an injury." Plaintiff particularly states on appeal:

"The merchant created this condition by overflowing his grease trap which grease trap was under his exclusive control. The merchant by allowing his grease trap to overflow into the main sidewalk created an unreasonably dangerous walking surface. He failed to exercise reasonable care."

Therefore, Plaintiff is discussing in his brief the issues considered in Defendants' Motion for Summary Judgment, namely the negligence of Defendants.

The third issue in Plaintiff's brief is of particular importance in determining Plaintiff's intention to appeal the judgment on the merits, and states as follows:

3. "Isn't the legal criteria for defeating a 'Motion for Summary Judgment' a simple showing that there exist a question of material fact?"

In support of this issue, Plaintiff asked this Court "to grant him this appeal and give him a chance to present his evidence at a trial on the merits" and further stated that "Plaintiff did not have the benefit of a trial on the merits.... A motion for summary judgment should be denied when evidence is presented that creates an issue of material fact. At the Motion for Summary Judgment, Carl Edgefield's deposition was placed in evidence wherein he said he slipped due to grease on his shoes." Additionally, Plaintiff notes that evidence at the summary judgment hearing showed that "the cleanouts for the grease trap were in the middle of the

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sidewalk that led to the porch steps." Plaintiff prays "that this Motion to Dismiss Appeal be denied and his appeal granted, and that the Summary Judgment be reversed and that he be granted a trial on the merits, which he did not ever have in this case."

I find that Plaintiff intended to appeal the merits of the case seeking the reversal of the September 7^th Judgment, and, alternatively, requested that, at the least, he be afforded a contradictory hearing on his Motion for New Trial and that the September 26^th Order be vacated. The issues for consideration in this appeal should not be limited to Plaintiff's Motion for New Trial.¹ Accordingly, I will consider the appeal from the judgment on the merits,² and I would reverse the September 7^th Judgment finding that the district court erred in granting Defendants' Motion for Summary Judgment. I find that Plaintiff put forth sufficient contradictory facts to establish the existence of genuine issues of material fact and that Defendants failed to point out to the court the absence of factual support for Plaintiff's claim.

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Plaintiff alleges that, on December 15, 2004, shortly before noon, as he was delivering a box of frozen seafood, he slipped on grease and fell while walking on painted wooden steps on the pathway to the kitchen of Defendants' golf course clubhouse restaurant. Defendants acknowledge that an underground grease trap covered by two large metal grates was located on the pathway leading to the kitchen and adjacent to the steps. The grease from the grease trap would periodically be sucked out of the grease trap by removing the grates from the grease trap then using a hose to pump the grease into a truck. Grease was also manually removed from the kitchen at night. Defendants' staff would walk down the steps from the kitchen onto the pathway and empty grease into containers in the parking lot. Every morning, Defendants' staff would hose down the pathway with hot water and a degreaser solution.

Plaintiff claims that he slipped due to grease on the pathway caused by Defendants' grease removal system, noting that the cement pathway near the grease trap was discolored with grease stains. When Plaintiff fell, the box he was carrying hit the ground and broke open, scattering smaller packages of frozen shrimp on the ground. Two men helped him to pick up the shrimp. Plaintiff then carried the box inside the kitchen. He did not know the names of the men who helped him or if they actually saw the fall. Within the year after the incident, Plaintiff was forced to evacuate for Hurricane Katrina and lived elsewhere while his house was repaired after sustaining eight feet of flood water.

On December 22, 2005, Plaintiff...