Kennett v. Dep't of Pub. Works

• Decision Date: 27 December 2013
• Docket Number: NUMBER 2013 CA 0824
• Parties: LINDA R. KENNETT v. DEPARTMENT OF PUBLIC WORKS, THROUGH THE CITY OF BOGALUSA, JAMES HALL IN HIS CAPACITY AS DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS, XYZ EMPLOYEE(S), AND XYZ INSURANCE COMPANY
• Court: Court of Appeal of Louisiana — District of US

LINDA R. KENNETT v. DEPARTMENT OF PUBLIC WORKS, THROUGH THE CITY OFBOGALUSA, JAMES HALL IN HIS CAPACITY AS DIRECTOR OFTHE DEPARTMENT OF PUBLIC WORKS, XYZ EMPLOYEE(S),AND XYZ INSURANCE COMPANY

NUMBER 2013 CA 0824

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Judgment Rendered: December 27, 2013

NOT DESIGNATED FOR PUBLICATION

Appealed from the

Twenty-Second Judicial District Court

In and for the Parish of Washington

State of Louisiana

Docket Number 102,596

The Honorable Allison H. Penzato, Judge Presiding

William H. Burris

Franklinton, LA

Counsel for Plaintiff/Appellant,

Linda R. Kennett

Willie G. Johnson, Jr.

Baton Rouge, LA

Christopher M. Moody

Albert D. Giraud

Hammond, LA

Counsel for Defendants/Appellees,

James Hall and Department of Public

Works

BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, J.J.

WHIPPLE, C.J.

This matter is before us on appeal by the plaintiff, Linda R. Kennett, from a judgment of the trial court denying her motion for partial summary judgment and granting summary judgment in favor of the defendants, the Department of Public Works through the City of Bogalusa.

For the reasons that follow, we reverse in part, affirm in part, and remand.

FACTS AND PROCEDURAL HISTORY

On April 7, 2011, Kennett exited the Bogalusa City Hall building, where she had been paying her water bill. While walking to her car, she purportedly tripped and fell on a sidewalk located directly outside of City Hall. On May 12, 2011, Kennett filed a petition for damages contending that the area of the sidewalk where she tripped and fell was uneven, and thus defective, and that, as a result of her fall, she sustained injuries to her face, wrists, and teeth. Named as defendants were the Department of Public Works through the City of Bogalusa ("the City") and James Hall, the Director of the Department of Public Works. By first and second supplemental and amending petitions, Kennett also named Risk Management, Inc. ("RMI") and Louisiana Municipal Risk Management Agency, Group Self Insurance Fund for Public Liability Risk Sharing as defendants.

RMI filed a motion to dismiss, contending: (1) that the City is a member of an interlocal risk management agency and participates in an intergovernmental agreement pursuant to LSA-R.S. 33:1343, and (2) that RMI is the administrator of the self-insurance fund. RMI contended that pursuant to LSA-R.S. 33:1345, an interlocal risk management agency is not an insurance company or an insurer under the laws of this state, and thus, was not subject to direct action as an insurer. Thus, RMI contended, as the third-party administrator of the self-insurance fund, it was not a proper defendant in this suit. The trial court granted the motion, dismissing Kennett's claims against RMI.

Louisiana Municipal Risk Management Agency ("LMRMA") likewise responded by filing an exception of no right of action and request for sanctions pursuant to LSA-C.C.P. art. 863. Therein, LMRMA contended that pursuant to LSA-R.S. 33:1345, LMRMA is unmistakably not an insurance company or insurer, that its actions do not constitute participation in an insurance business, and thus, no direct action existed against it under Louisiana's Direct Action Statute.¹ LMRMA further contended that Kennett/Kennett's attorney were made aware of this at a mediation on January 4, 2012, and also via the pending motion to dismiss filed by RMI, but, despite having knowledge of the statutory bar to recovery, Kennett/Kennett's attorney filed a second amending and supplemental petition naming LMRMA as a defendant in these proceedings. After hearing the matter, by separate judgments both signed on May 22, 2012, the trial court denied LMRMA's motion for sanctions and granted LMRMA's exception of no cause of action.²

In the interim, on March 8, 2012, Kennett filed a motion for sanctions due to spoliation. Therein, she contended that at some point between September 22, 2011 and November 29, 2011, the City had repaired the section of the sidewalk where she had fallen. Kennett contended that she had retained Darryl Fussell,P.E. of Arrow Engineering & Consulting for the purpose of conducting and performing an analysis of the subject premises, but that he was unable to do so because the premises had been altered. Contending that the defendants had intentionally destroyed significant evidence, which presumes that the structure of the sidewalk was damaging to their defense and additionally suggests that the sidewalk was defective, Kennett also sought to have the court apply an adverse presumption that the evidence would have been detrimental to the City of Bogalusa's case. On May 22, 2012, the trial court signed a judgment denying Kennett's motion for sanctions.

On August 22, 2012, the City filed a motion for summary judgment contending that Kennett could not establish that the sidewalk crack at issue herein created an unreasonable risk of harm, which was necessary to prevail on a liability claim against public entities under LSA-R.S. 9:2800. Thus, the City sought dismissal of Kennett's claims with prejudice. On September 26, 2012, Kennett likewise filed a motion for partial summary judgment as to the City's liability under LSA-R. S. 9:2800.

The cross-motions for summary judgment were heard by the trial court on October 22, 2012,³ and November 29, 2012, At the conclusion of the hearings, the trial court issued oral reasons, denying Kennett's motion for partial summary judgment, maintaining the City's motion for summary judgment, and dismissing Kennett's case with prejudice. The trial court signed a written judgment to that effect on November 29, 2012.

Kennett now appeals, contending that the trial court erred in: (1) maintaining LMRMA's exception of no cause of action; (2) denying Kennett's motion for sanctions due to spoliation of evidence; (3) granting the City's motionfor summary judgment; and (4) denying Kennett's motion for partial summary judgment.

DISCUSSION

Assignment of Error Number One

In her first assignment of error, Kennett contends that the trial court erred in maintaining the exception of no cause of action urged by LMRMA. At the outset, we will address the City's contention that Kennett's appeal of the trial court's grant of LMRMA's exception is untimely, and thus, not properly before us for review.

The trial court maintained the exception in favor of LMRMA by judgment dated May 22, 2012, which provides as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the exception of no cause of action on behalf of LMRMA is hereby granted, and costs of this proceeding to be cast against the plaintiff, for reasons orally decreed.

Although the judgment maintained LMRMA's exception and assessed costs, it did not dismiss a party from the litigation or dismiss any of Kennett's claims.

This Court's jurisdiction extends to final judgments. See LSA-C.C.P. art. 2033. A judgment must be precise, definite, and certain. Vanderbrook v. Coachmen Industries. Inc., 2001-0809 (La. App. 1^st Cir. 5/10/02), 818 So. 2d 906, 913. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruing is ordered, and the relief that is granted or denied. Johnson v. Mount Pilgrim Baptist Church, 2005-0337 (La. App. 1^st Cir. 3/24/06), 934 So. 2d 66, 67. A judgment that grants an exception of no cause of action, yet fails to contain decretal language, cannot be considered as a final judgment for purpose of an immediate appeal. See Johnson v. Mount Pilgrim Baptist Church, 934 So. 2d at67. Because the May 22, 2012 judgment does not contain proper decretal language, it is defective and cannot be considered as a final appealable judgment for purposes of an immediate appeal. See LSA-C.C.P. art. 1915(B).

However, as this Court has previously held, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Judson v. Davis, 2004-1699 (La. App. 1^st Cir. 6/29/05), 916 So. 2d 1106, 1112-1113, writ denied, 2005-1998 (La. 2/10/06), 924 So. 2d 167. Thus, since plaintiff's entire suit was ultimately dismissed by the trial court in the November 29, 2012 appealable judgment before us on review, she is entitled to seek review of all adverse interlocutory judgments prejudicial to her. As such, her challenge to the trial court's granting of LMRMA's exception of no cause of action is properly before us in this appeal.

With regard to Kennett's contention that the trial court erred in maintaining LMRMA's exception, we note that the objection that a petition fails to state a cause of action is properly raised by the peremptory exception. LSA-C.C.P. art. 927(A)(5). The purpose of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged in the pleading. Ourso v. Wal-Mart Stores. Inc., 2008-0780 (La. App. 1^st Cir. 11/14/08), 998 So. 2d 295, 298, writ denied, 2008-2885 (La. 2/6/09), 999 So. 2d 785.

Generally, no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. However, as set forth in City National Bank of Baton Rouge v. Brown, 599 So. 2d 787, 789 (La. App. 1^st Cir.), writ denied, 604 So. 2d 999 (La. 1992), the jurisprudence has recognized an exception to this rule, which allows the court toconsider evidence which is admitted without objection to enlarge the pleadings. Treasure Chest Casino. L.L.C. v. Parish of Jefferson, 96-1010 (La. App. 1^st Cir. 3/27/97), 691 So. 2d 751, 754, writ denied, 97-1066 (La. 6/13/97), 695 So. 2d 982. Otherwise, the exception is triable on the face of the pleadings, and, for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. The court must determine if the law affords plain...