Stevens v. City of Shreveport & Centerpoint Energy Res. Corp.
| Decision Date | 08 January 2015 |
| Docket Number | No. 49,437–CA.,49,437–CA. |
| Citation | 152 So.3d 1071 |
| Parties | Doris STEVENS, Plaintiff–Appellant v. CITY OF SHREVEPORT and CenterPoint Energy Resources Corp., Defendants–Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Doris Stevens, In Proper Person.
Law Offices of Ronald F. Lattier, LLC by Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, Senae D. Hall, for Appellee City of Shreveport.
Barham Warner Stroud, LLC, Shreveport, by Richard G. Barham, for Appellee, CenterPoint Energy Resources Corp.
Before MOORE, PITMAN and GARRETT, JJ.GARRETT, J.
The plaintiff, Doris Stevens, appeals from the trial court's grant of summary judgments in favor of the defendants, City of Shreveport (“City”) and CenterPoint Energy Resources Corp. (“CenterPoint”), dismissing her claims. For the following reasons, we affirm.
FACTS
On April 11, 2013, the plaintiff, represented by counsel, filed a petition for damages against the City and CenterPoint. Stevens alleged that on April 17, 2012, she was riding a bicycle on a sidewalk on Lakeshore Drive when she rode into a section where the concrete was missing. Stevens claimed her bicycle flipped and she was injured. Stevens asserted that people in the neighborhood told her CenterPoint had been doing work on the sidewalk. She alleged that the defendants knew or should have known of the defective condition of the sidewalk. Both defendants answered and denied any liability.
Discovery was undertaken. Stevens and representatives from the City and CenterPoint were deposed. On September 13, 2013, the matter was set for a jury trial on February 24, 2014. On October 31, 2013, the plaintiff's attorney sent her a withdrawal letter, candidly stating that the cost of litigation outweighed any potential settlement that might be received for her claim. The withdrawal letter advised that the matter was set for jury trial on February 24, 2014, and there were no motions pending before the court. A motion to withdraw was filed on November 5, 2013, and the order allowing the withdrawal was signed by the trial court on November 7, 2013.
On November 20, 2013, CenterPoint filed a motion for summary judgment. On January 3, 2014, the City filed its motion for summary judgment. The legal bases for these motions and the evidence submitted in support of them are discussed below. Stevens then applied for in forma pauperis status, which was granted by the trial court on January 16, 2014.
Both motions for summary judgment were considered on February 3, 2014. Stevens had not hired new counsel and proceeded pro se. Although Stevens was served with the motions, it appears that she erroneously thought that she was appearing in court for a trial.1 No written response or opposition to the motions for summary judgment was filed by Stevens. The trial court granted the summary judgments in favor of the defendants. Stevens appealed.
SELF REPRESENTATION
Stevens is representing herself on appeal. She states in her brief that she requested a continuance on February 3, 2014, in order to secure a new attorney, but her request was omitted from the transcript of the hearing. The record shows that Stevens was personally notified on October 31, 2013, that her attorney was withdrawing, that her case was set for a jury trial on February 24, 2014, and at that point no motions were pending. The hearing on the motions was held on February 3, 2014. As noted by the trial court, Stevens had three months to hire another attorney to represent her in this matter and she failed to do so. The record shows that the trial court had carefully reviewed the motions for summary judgment, together with the evidence submitted in support of the motions, prior to the hearing. The court noted its review of the suit indicated that no opposition had been filed. The court also patiently listened to the plaintiff's comments in court. Contrary to the assertions in her brief, the record does not reflect that Stevens ever requested a continuance. Under the circumstances presented in this case, we find no error on the part of the trial court in proceeding to consider the defense motions for summary judgment.2
The City urges that, because Stevens failed to list any assignments of error in this appeal, under URCA 2–12.4, she has abandoned any and all potential assignments of error. Pursuant to La. C.C.P. art. 2129, an assignment of errors is not necessary in any appeal. La. C.C.P. art. 2164 gives the appellate court authority to render any judgment which is just, legal, and proper upon the record on appeal. Based upon these authorities, the Louisiana Supreme Court has held that an appellate court has the authority to consider an issue even when there is no assignment of error. Merrill v. Greyhound Lines, Inc., 2010–2827 (La.4/29/11), 60 So.3d 600.
Where pro se litigants are concerned, in the interest of justice, this court will read pro se filings indulgently and attempt to construe a brief as though assignments of error were properly made. See Greenwood Cmty. Ctr. v. Calep, 48,737 (La.App.2d Cir.1/15/14), 132 So.3d 470; In re Succession of Taylor, 44,471 (La.App.2d Cir.6/24/09), 13 So.3d 1253; Graham v. Nissan, 39,656 (La.App.2d Cir.6/29/05), 907 So.2d 213. In this matter, Stevens essentially argues that the trial court erred in granting summary judgments in favor of the defendants, dismissing her suit against them. We decline to reject the brief for noncompliance and will consider whether the summary judgments were properly granted.
However, even with the leeway or patience extended to a pro se litigant in the form of liberally construed pleadings, the pro se claimant is still required to meet his burden of proof. Greenwood Cmty. Ctr. v. Calep, supra. The pro se litigant assumes all responsibility for his own inadequacy and lack of knowledge of procedural and substantive law. Dixon v. Shuford, 28,138 (La.App.2d Cir.4/3/96), 671 So.2d 1213; Murray v. Town of Mansura, 2006–355 (La.App.3d Cir.9/27/06), 940 So.2d 832, writ denied, 2006–2949 (La.2/16/07), 949 So.2d 419, cert. denied, 552 U.S. 915, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007); Cutler v. McGee, 2009–1290 (La.App.3d Cir.5/5/10), 38 So.3d 481, writ denied, 2010–1879 (La.11/19/10), 49 So.3d 393; Gray v. State, 2005–617 (La.App.3d Cir.2/15/06), 923 So.2d 812; Williams v. Jefferson Parish Credit Union, 13–1005 (La.App.5th Cir.6/24/14), 145 So.3d 491; Dronet v. Dronet, 96–982 (La.App.5th Cir.4/9/97), 694 So.2d 426, writ not cons., 97–1263 (La.9/5/97), 699 So.2d 82.
SUMMARY JUDGMENT PRINCIPLES
Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007–1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, 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(B). The burden of proof remains with the movant.
However, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to provide factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967; Samaha v. Rau, supra.
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup'rs of La. State Univ., 591 So.2d 342 (La.1991); Lewis v. Coleman, 48,173 (La.App.2d Cir.6/26/13), 118 So.3d 492, writ denied, 2013–1993 (La.11/15/13), 125 So.3d 1108.
CENTERPOINT
CenterPoint argues that the trial court ruling granting summary judgment in its favor was proper where the motion, with supporting evidence, had been pending for more than two months and the plaintiff failed to submit any opposition to the motion. It claims there was a complete lack of evidence that it had any care, custody, or control over the sidewalk or that it created the hole where Stevens allegedly fell off her bicycle. According to CenterPoint, this was an essential element of the plaintiff's claim against it and she failed to produce sufficient factual support to establish that she would be able to satisfy her evidentiary burden at trial. Therefore, it claims that the grant of summary judgment in its favor was proper.
Discussion
Regarding the liability for the damage caused by things, La. C.C. art. 2317 provides:
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
La. C.C. art. 2317.1 states:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have...
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