Rivarde v. City of New Orleans

• Decision Date: 09 March 2016
• Docket Number: No. 2015–CA–0655.,2015–CA–0655.
• Citation: 190 So.3d 400
• Parties: Kenneth RIVARDE, et al. v. CITY OF NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

190 So.3d 400

Kenneth RIVARDE, et al.
v.
CITY OF NEW ORLEANS.

No. 2015–CA–0655.

Court of Appeal of Louisiana, Fourth Circuit.

March 9, 2016.

190 So.3d 401

Clarence Roby, Jr., Law Offices of Clarence Roby, Jr., APLC, New Orleans, LA, for Plaintiff/Appellant.

Elizabeth Robins, Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, Cherrell R. Simms, Senior Chief Deputy City Attorney, Sharonda R. Williams, City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN ).

EDWIN A. LOMBARD, Judge.

Kenneth Rivarde, individually and in his capacity as the natural tutor of minor child, Kenneth Rivarde, Jr., and Kennitia Rivarde, seek review of the March 19, 2015 judgment of the district court granting the motion for summary judgment of the City of New Orleans. However, having determined that the wording of the March 19, 2015 judgment lacks the required decretal language, we convert this appeal to a writ application. The writ application of the Rivardes is granted, but the relief sought is denied.

Facts and Procedural History

Channelda Rivarde (“Mrs. Rivarde”), the wife of Kenneth Rivarde, died as a result of fatal injuries she sustained in a motor vehicle accident on July 9, 2002, at the intersection of North Rocheblave St. and A.P. Tureaud Blvd. in New Orleans. On that date, Mrs. Rivarde was riding as a passenger in a vehicle, a 1988 Chrysler New Yorker, being operated by Linda Williams (“Ms. Williams”). Several New Orleans Police Department (“NOPD”) officers in three separate patrol units were pursuing fleeing felon Gerald Nickles (“Nickles”), when he ran a stop sign and struck Ms. Williams' vehicle causing her death and the death of Mrs. Rivarde. Nickles was cited with reckless operation of a vehicle and arrested at the scene. He was charged for the following offenses: 1) two counts of negligent homicide; 2) resisting

190 So.3d 402

arrest by flight; 3) possession of stolen property; and 4) felon in possession of a firearm. Nickles eventually pled guilty to two counts of manslaughter. Additionally, an overheated police unit was towed from the accident scene.¹

On June 6, 2003, Kenneth Rivarde (“Mr. Rivarde”) filed a Petition for Wrongful Death and Survival, individually and “in his capacity as the natural tutrix”² of his minor children, Kennitia Rivarde and Kenneth Rivarde, Jr., against the City of New Orleans (“the City”). The Rivardes recount that they encountered several setbacks in advancing this matter toward trial including:

• Hurricane Katrina;

• The unavailability of witnesses, including former NOPD officers, and loss of documentation post-Hurricane Katrina;

• Mayoral administration changes;

• Re-assignment of this matter to various presiding judges; and

• Most importantly, approximately five different City Attorneys as well as various Assistant and Deputy City Attorneys assigned to this matter over its decade plus history.

Ultimately, after various motions for status conference were filed by the Rivardes, and jointly by both parties, the City filed a motion for summary judgment on November 7, 2014, asserting that no genuine issues of material fact exist to show that the City is responsible for the accident that caused Mrs. Rivarde's death and maintaining that the matter is abandoned. Moreover, the City raised exceptions of no right of action and no cause of action within its motion.³ At the time the City filed its motion for summary judgment and pursuant to the September 8, 2014 Notice of Trial, the discovery cut-off was November 10, 2014 and trial was set for December 9, 2014. The district court later held a telephone conference with the parties wherein the trial date was reset for May 26, 2015, and the discovery cut-off date was extended to April 16, 2015. The district court further set the hearing on the City's motion for summary judgment for February 6, 2015. The record does not reveal why the trial date and the discovery deadline were reset.

After the February 6th summary judgment hearing, the district court rendered judgment granting the City's motion for summary judgment, but denying its exceptions. Thereafter, the Rivardes timely moved for an appeal. The judgment at issue, however, is not a final appealable judgment because of the absence of decretal language specifying that the Rivardes claims are dismissed as a result of the grant of the City's motion for summary judgment. However, the Rivardes moved for an appeal within 30 days of the judgment at issue; therefore, we invoke our supervisory jurisdiction and convert their appeal to a writ application as it is timely

190 So.3d 403

pursuant to Rule 4–3, Uniform Rules—Courts of Appeal.⁴

Assignments of Error

The Rivardes raise three assignments of error:

1. The district court erred in granting summary judgment in favor of the City prior to the completion of adequate discovery, particularly considering that at the time of the February 6, 2015 hearing on the motion for summary judgment, more than two (2) months remained before the April 16, 2015 discovery cut-off deadline;

2. The district court's grant of the City's motion for summary judgment was premature and in violation of La.Code Civ. Proc. art. 966(C)(1), which requires adequate discovery before a motion for summary judgment can be granted; and

3. The district court erred in granting summary judgment in favor of the City when genuine issues of material fact exist as to whether the City breached its duty by engaging in a high-speed chase, causing the accident that killed Mrs. Rivarde.

Premature Consideration of the City's Motion for Summary Judgment

We address the Rivardes' first and second assignments of error jointly as both relate to their assertion that the district court's consideration of the City's motion for summary judgment was premature because the discovery deadline was two months after the summary judgment hearing.

In their first assignment of error, the Rivardes assert that the district court prematurely heard the City's motion for summary judgment because discovery was still ongoing. They assert that at the time of the summary judgment hearing it was a little over two months before the April 16, 2015 discovery deadline.

A district court's decision to hear a motion for summary judgment where discovery is alleged to be incomplete is reviewed under an abuse of discretion standard. Newsome v. Homer Memorial Medical Center, 10–0564, p. 3 (La.4/9/10), 32 So.3d 800, 802. Thus, the Rivardes assert that the district court abused its discretion in granting the motion for summary judgment when genuine issues of material fact were still discoverable. They contend that La.Code Civ. Proc. art. 966(C) provides that summary judgment may only be granted after adequate discovery or after a case is set for trial. They further rely upon La.Code Civ. Proc. art. 967(C) which provides that:

If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

190 So.3d 404

They assert that the grant of summary judgment is premature where the request for additional time is to conduct additional discovery for information pertaining to the issues raised in the motion for summary judgment. They contend that their attempts to advance this matter were thwarted by the City's allegedly dilatory actions coupled with the effects of Hurricane Katrina.

The Rivardes aver that they informed the district court that there was inadequate discovery conducted despite their attempts to depose several officers identified as participants in the alleged high-speed chase that led to Mrs. Rivarde's demise. They further assert the City admitted in August 2013, that it faced setbacks in conducting discovery post-Katrina, including locating witnesses and former NOPD officers and recovering relevant documentation.

We note that at the time that the City filed its motion for summary judgment on November 7, 2014, only three days remained before the expiration of the then-existing discovery deadline of November 10, 2015. The discovery deadline was only extended after the City filed its summary judgment motion. The Rivardes do not assert that the deadline was extended at their request or because the district court decided to allow for further discovery to be...