Varnado v. 201 St. Charles Place

• Decision Date: 29 June 2022
• Docket Number: 2022-CA-0039,2022-CA-0038
• Parties: ALLEN VARNADO v. 201 ST. CHARLES PLACE, LLC, HOWE GREEN, LTD., AND FF SYSTEMS, INC. ALLEN VARNADO v. 201 ST. CHARLES PLACE, LLC, HOWE GREEN, LTD., AND FF SYSTEMS, INC.
• Court: Court of Appeal of Louisiana (US)

ALLEN VARNADO
v.
201 ST. CHARLES PLACE, LLC, HOWE GREEN, LTD., AND FF SYSTEMS, INC.

ALLEN VARNADO
v.
201 ST. CHARLES PLACE, LLC, HOWE GREEN, LTD., AND FF SYSTEMS, INC.

Nos. 2022-CA-0038, 2022-CA-0039

Court of Appeals of Louisiana, Fourth Circuit

June 29, 2022

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-01500, DIVISION "E" Honorable Omar Mason, Judge

Terrence L. Brennan Kelly E. Theard Brian S. Schaps DEUTSCH KERRIGAN, L.L.P., COUNSEL FOR APPELLEE/DEFENDANT/THIRD-PARTY DEFENDANT, MATHES BRIERRE ARCHITECTS, A PROFESSIONAL CORPORATION

John W. Martinez MARICLE &ASSOCIATES COUNSEL FOR APPELLEE/DEFENDANT/THIRD-PARTY DEFENDANT, RYAN GOOTEE GENERAL CONTRACTORS, LLC.

Pierre M. Legrand LEGRAND LAW FIRM L.L.C, COUNSEL FOR APPELLANT/INTERVENOR, COX COMMUNICATIONS LOUISIANA, LLC

Matthew C. Nodier NODIER LAW, LLC COUNSEL FOR DEFENDANT/APPELLANT, 201 ST. CHARLES PLACE, LLC

(Court composed of Chief Judge Terri F. Love, Judge Edwin A. Lombard, Pro Tempore Judge Madeline Jasmine)

Terri F. Love, Chief Judge.

TFL

EAL

MJ

This appeal arises from injuries sustained while plaintiff was performing work for his employer at defendant's building. The architect and contractor hired to complete the restoration work on the outside of the building for defendant filed motions for summary judgment contending that no duty was owed to plaintiff. The trial court agreed and granted the motions for summary judgment, dismissing plaintiff's claims against the architect and contractor.

After reviewing, we find that the architect and contractor owed no duty to plaintiff, as a third-party, months after renovation work was completed. There were no genuine issues of material fact remaining, which would preclude summary judgment. Therefore, the trial court did not err by granting the motions for summary judgment and the judgments of the trial court are affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

201 St. Charles Place, LLC ("St. Charles") sought to improve the exterior of Place St. Charles, which included upgrading the vault lid on an underground utility vault. St. Charles hired the architecture firm of Mathes Brierre Architects, A Professional Corporation "to design and implement the improvements." Ryan Gootee General Contractors, L.L.C. was hired as the contractor to perform the work.

1

In April 2015, almost one year after completion of the renovations, Allen Varnado was working for Cox Communications Louisiana LLC outside of Place St. Charles in the Central Business District of New Orleans when he attempted to open an underground utilities vault. He was unable to lift off the vault lid and allegedly sustained back injuries as a result.^[1]

Mr. Varnado filed suit against St. Charles; David Norman, a maintenance worker of St. Charles who handed over the vault lid keys; Howe Green, Ltd., the manufacturer of the vault lid; and FF Systems, Inc., a lift jack distributer. Cox, as Mr. Varnado's employer, then filed a Petition of Intervention seeking subrogation to Mr. Varnado's rights against defendants based on payments made to Mr. Varnado pursuant to Louisiana Worker's Compensation laws. Cox named the following parties as defendants-in-intervention: Mr. Varnado, Mr. Norman, St. Charles, Howe Green, and FF.

St. Charles and Mr. Norman filed a Motion for Summary Judgment asserting that no duty was owed to Mr. Varnado and that they did not select or "directly purchase" the vault lid. Howe Green also filed a Motion for Summary Judgment seeking dismissal. The trial court denied St. Charles and Mr. Norman's Motion for Summary Judgment, but then noted that Mr. Norman was dismissed without prejudice unless evidence of an intentional act or gross negligence emerged. The trial court granted Howe Green's Motion for Summary Judgment and dismissed Mr. Varnado's claims against Howe Green with prejudice.

St. Charles then filed a third-party demand against Gootee and Brierre seeking indemnity and defense for Mr. Varnado's claims. Cox filed an Amended and

2

Supplemental Petition of Intervention to add in third-party defendants, Gootee and Brierre. Mr. Varnado also filed an Amended Petition to add third-party defendants, Gootee and Brierre, as defendants in the principal demand.^[2]

Brierre filed an exception of prematurity or alternatively, a motion to stay St. Charles' third-party demand based on an arbitration clause contained in the contract. The trial court granted the exception of prematurity and stayed all of St. Charles' claims against Brierre.^[3]

St. Charles filed a second Motion for Summary Judgment seeking the dismissal of Mr. Varnado's claims because "the facts and evidence prove St. Charles had no actual or constructive notice of the alleged condition prior to the instant incident." The trial court denied St. Charles' second Motion for Summary Judgment.

Gootee filed an exception of no right of action and, alternatively, Motion for Summary Judgment seeking to dismiss Mr. Varnado's claims and Cox's intervention claims. Gootee contended that it did not have custodial control over the vault lid

3

and that it had no actual or constructive knowledge of the alleged defective condition. Gootee then filed an exception of no right of action, and, alternatively, Motion for Summary Judgment regarding St. Charles' third-party demand. Then, Brierre filed a Motion for Summary Judgment seeking the dismissal of all of Mr. Varnado's claims, as it "did not install the access cover at issue and had no obligation or duty to clean or maintain the access cover at issue."

The hearing for consideration of the Motions for Summary Judgment in March 2021 was continued, the case was re-allotted, and the matters were reset. After the hearing was reset, St. Charles filed a Motion to Continue, alleging that Hurricane Ida and scheduling delays had prevented St. Charles from conducting discovery.

The trial court denied St. Charles' Motion to Continue, and, following a hearing in October 2021: 1) granted Gootee's Motion for Summary Judgment; 2) dismissed Mr. Varnado's and Cox's claims against Gootee with prejudice; 3) granted Brierre's Motion for Summary Judgment; and 4) dismissed Mr. Varnado's and Cox's claims against Brierre with prejudice. The judgments were designated as final and appealable pursuant to La. C.C.P. art. 1915.

St. Charles filed Motions for Devolutive Appeal seeking to appeal the granting of both Gootee's and Brierre's Motions for Summary Judgment. Cox also filed Motions for Devolutive Appeal for review of the same judgments. This Court consolidated St. Charles' and Cox's appeals.

St. Charles avers the trial court: 1) erred by denying the Motion to Continue; 2) erred by granting Brierre's Motion for Summary Judgment because genuine issues of material fact exist regarding whether special maintenance of the vault lid was required and that Brierre failed to inform St. Charles of same; 3) erred by

4

granting Brierre's...