The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
07-1154 c/w 07-1155
SHANNON J. CLEMENT
VERSUS
DUSTY J. REEVES, LAFAYETTE PARISH
CONSOLIDATED GOVERNMENT,
ALLSTATE INSURANCE COMPANY,
AND ABC INSURANCE COMPANY
CONSOLIDATED WITH
JESSICA VIDRINE
VERSUS
LAFAYETTE PARISH CONSOLIDATED
GOVERNMENT AND ABC INSURANCE
COMPANY
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. 200336572 c/w 20033716 c/w 20031906
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE
**********
J. DAVID PAINTER
JUDGE
**********
Court composed of Glenn B. Gremillion, Elizabeth A. Pickett, and J. David Painter,
Judges.
AFFIRMED.
Randall L. Guidry
Attorney at Law
P.O. Box 3828
Lafayette, LA 70502
Counsel for Plaintiff-Appellant:
Jessica Vidrine
G. Frederick Seeman
Attorney at Law
401 Audubon Blvd., Suite 103A
Lafayette, LA 70503
Counsel for Plaintiff-Appellant:
Jessica Vidrine
Matthew J. Ungarino
Robin L. Jones
Ungarino & Eckert, L.L.C.
315 South College Road, Suite 239
Lafayette, LA 70503
Counsel for Defendant-Appellee:
Lafayette City-Parish Consolidated Government
D. Keith Wall
Marcantel, Marcantel, Wall, Pfeiffer
& Stretcher
P.O. Box 1366
Jennings, LA 70546
Counsel for Plaintiff-Appellant:
Shannon J. Clement
PAINTER, Judge.
This matter was previously before us on remand from the Louisiana Supreme
Court for briefing, argument, and opinion after Plaintiffs successfully sought
supervisory writs regarding our initial finding that the trial court erred in denying
summary judgment in favor of Defendant, Lafayette City-Parish Consolidated
Government (LCG). On remand, we denied LCG’s writ application, finding that a
genuine issue of material fact existed such that summary judgment was improper. See
Clement v. Reeves, 05-616 (La.App. 3 Cir. 6/28/06), 935 So.2d 279. Following that
opinion, LCG filed a second motion for summary judgment which was granted by the
trial court. Plaintiffs appeal. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We adopt the following statement of facts from our previous opinion:1
This litigation stems from a December 20, 2002 automobile
accident, which occurred in the 7200 block of Landry Road, located in
a rural area of Lafayette Parish, at approximately 10:45 p.m. Shannon
Clement, Jessie Vidrine, and Christina Chau were passengers in a truck
driven by Dusty Reeves. Reeves, who was unfamiliar with Landry
Road, lost control of his vehicle and crashed into a ditch when he failed
to safely negotiate a ninety-degree turn. As a result, Clement, Vidrine,
and Chau (plaintiffs) filed suit against LCG alleging that it failed to
maintain the advance turn warning sign which would have warned
Reeves of the approaching turn. These three suits were consolidated by
the trial court. (Docket Number 2003-1906, consolidated with Docket
Numbers 2003-3716 and 2003-6576).
In response, LCG sought summary judgment arguing that the
plaintiffs could not prove that it had constructive notice of the downed
sign prior to the accident or that it had a reasonable amount of time in
which to repair the sign. It further argued that it was immune from
liability under the Louisiana Homeland Security and Emergency
Assistance and Disaster Act, as a state of emergency had been declared
for the State of Louisiana and Lafayette Parish on October 1, 2002, in
anticipation of Hurricane Lili. This state of emergency was extended
1
We do note that following the decision on remand, Plaintiff, Christina A. Chau, filed a joint
motion and order of dismissal, and her claim was dismissed in its entirety by order signed April 17,
2007.
1
statewide for an additional forty-five days by Governor Mike Foster on
October 31, 2002.
Following argument, the trial court denied LCG’s motion finding
“too many loose facts floating around to be amenable to summary
judgment at present.” A judgment denying the motion was rendered on
April 21, 2005. Based on the trial court's judgment, LCG sought and
was granted supervisory writs from this court. A five judge panel
granted the writ and made it peremptory using the following language:
We find that the trial court erred in its determination
that there were genuine issues of material fact as to the
knowledge element of the claim against the
defendant-relator, Lafayette City-Parish Consolidated
Government (LCG). The testimony offered by LCG was
sufficient to shift the burden of proof to the
plaintiffs-respondents, Shannon Clement, Jessica Vidrine,
and Christina Chau. Clement provided one statement made
by Terry Rabon, an LCG department of transportation
employee, that could be construed as inconsistent with
Rabon's other testimony that the sign was up and visible at
the time of the survey. No other factual support was
provided by the plaintiffs. The one seemingly inconsistent
statement by Rabon on which plaintiffs rely, falls well
short of the showing of factual support required to avoid
summary judgment. Accordingly, summary judgment is
hereby granted and all claims against LCG are dismissed,
with prejudice, at plaintiffs’ cost.
See unpublished writ Clement v. Reeves, 05-616 (La.App. 3 Cir.
8/19/05) (Thibodeaux, C.J., and Ezell, J., dissenting). Thereafter, the
plaintiffs sought and were granted supervisory writs from the supreme
court, with the matter being remanded to this court for briefing,
argument, and opinion. See Clement v. Reeves, 05-2475, 05-2479,
05-2481 (La.3/31/06), 925 So.2d 1249, 1250.
Id. at 280-81.
On remand, we found as follows:
Although summary judgment is favored and should be construed
to accomplish the just, speedy, and inexpensive determination of every
action subject to it, all doubt must be resolved in favor of the party
opposing the motion. La.Code Civ.P. art. 966(A)(2); Willis v. Medders,
00-2507 (La.12/8/00), 775 So.2d 1049. Here, we have Rabon’s
testimony that he had no independent recollection of the sign in
question, as well as the October 30, 2002 work order indicating that
reinstallment of the sign was necessary. Opposing this, we have further
testimony from Rabon that the sign was leaning only slightly when he
surveyed it, because if it had been down he would have called the sign
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truck to replace the sign that day. Thus, we find that Rabon’s statements
present a genuine issue of material fact in that reasonable persons could
reach different conclusions based on them. As LCG relies on these
statements to absolve itself of liability, we think that it should be left to
the trier of fact in a trial on the merits to determine whether he is
credible. As the grant of summary judgment would be harsh in this
instance, we find that it was properly denied.
....
Clearly, LCG was provided with immunity from negligence in its
efforts to remedy the effects of Hurricane Lili during the state of
emergency absent a showing of willful misconduct. Castille v. Lafayette
City-Parish Consol. Gov’t, 04-1569 (La.App. 3 Cir. 3/2/05), 896 So.2d
1261, writ denied, 05-0860 (La.5/1305), 902 So.2d 1029. However, at
the time the state of emergency ended, LCG was no longer afforded
immunity by the Louisiana Homeland Security and Emergency
Assistance and Disaster Act. Therefore, we find that the trial court
properly denied its motion for summary judgment on this issue.
Id. at 284-285.
Following that decision by this court, LCG filed a second motion for summary
judgment in the trial court. This motion alleged that LCG was entitled to immunity
for any personal injuries that occurred as a result of LCG’s response to Hurricane Lili
pursuant to La.R.S. 29:723 and La.R.S. 29:725 because the state of emergency had
been extended by the parish president pursuant to La.R.S. 29:727 on November 27,
2002, which would encompass the date of the subject accident. In support of its
motion, LCG filed, along with other evidence, copies of extensions of the state of
emergency signed by the parish president and dated, October 1, 2002, October 29,
2002, November 27, 2002, and December 26, 2002. Based in part on these
extensions, the trial court found that an actual emergency and a declaration existed
such that LCG was entitled to immunity. The trial court, therefore, granted the
motion for summary judgment. Plaintiffs now appeal.
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DISCUSSION
Law of the Case
Plaintiffs allege that the law of the case doctrine is applicable such that the trial
court should not have entertained LCG’s second motion for summary judgment.
Plaintiffs argue that this court’s previous opinion found that there must be not only
a valid declaration of emergency in effect at the time of the accident, but also an
actual existing emergency. LCG argues that this court addressed only the issue of
whether a statewide state of emergency was still in effect on December 20, 2002, and
found that it was not but that this is different than the issue which is currently before
the court; i.e., whether the parish-wide extensions were validly extended even after
the statewide state of emergency had lapsed.
Our prior opinion did state: “Thus the subject accident occurred after the state
of emergency expired; moreover, the ‘actual or threatened condition’ of Hurricane
Lili had obviously long been over by December 20.” Clement, 935 So.2d at 285.
However, at that time, we did not have the parish president’s extension of the state
of emergency for the parish before us. And, we also noted that “LCG was provided
with immunity from negligence in its efforts to remedy the effects of Hurricane Lili
during the state of emergency absent a showing of willful misconduct.” Id.
The law of the case doctrine is a discretionary rule:
Typically, following the “law of the case” doctrine, reargument
of a previously decided point will be barred where there is simply a
doubt as to the correctness of the earlier ruling. However, the law of the
case principle is not applied in cases of palpable error or where, if the
law of the case were applied, manifest injustice would occur. Ward v.
Hermitage Ins. Co., 28,236 (La.App.2d Cir.4/3/96), 671 So.2d 1229,
writ denied, 96-1141 (La.9/3/96), 678 So.2d 554; Richard v. Wal-Mart
Stores, Inc., 29,926 (La.App.2d Cir.10/31/97), 702 So.2d 79, writ
denied, 97-3002 (La.2/6/98), 709 So.2d 744.
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Rogers v. Horseshoe Entertainment, 32,800, p. 5-6 (La.App. 2 Cir. 8/1/00), 766 So.2d
595, 600-01, writ denied, 00-2894, 00-2905 (La. 12/8/00), 766 So.2d 463, 464.
In the Rogers case, the second circuit noted that:
[B]ased on the additional discovery, the additional arguments and
authorities raised in the Weems motion, as well as the potential for
manifest injustice by virtue of incongruent results created by the Weems
motion, we conclude that the trial court's decision to permit the Rogers
to refile their motion for summary judgment was based on more than
doubt; as such, the law of the case doctrine is inapplicable. . .
Moreover, we find no authority supporting Horseshoe’s argument that
a trial judge cannot entertain a motion for summary judgment a second
time.
Id. (citation omitted).
We find that the law of the case doctrine is inapplicable because we did not
previously consider the existence, applicability, or validity of the parish president’s
extensions of the parish-wide state of emergency.
Summary Judgment
We review the trial court’s grant of summary judgment in favor of LCG de
novo, using the same criteria as the trial court. Hines v. Garrett, 04-806 (La.
6/25/04), 876 So.2d 764. We must determine whether any genuine issues of material
fact exist and whether the movant is entitled to judgment as a matter of law. La.Code
Civ.P. art. 966(B) and (C).
The initial burden of proof remains with the mover to show that
no genuine issue of material fact exists. However, if the mover will not
bear the burden of proof at trial, he need not negate all essential
elements of the adverse party's claim, but rather he must point out that
there is an absence of factual support for one or more elements essential
to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met
his initial burden of proof, the burden shifts to the non-moving party to
produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden at trial. Id.
Butler v. DePuy, 04-101, p. 3 (La.App. 3 Cir. 6/9/04), 876 So.2d 259, 261 (citing
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730).
5
As we noted in our prior opinion in this matter: “Here, the plaintiffs will bear
the burden of proof at trial; thus, LCG is only required to point out that there is a lack
of factual support for one or more elements essential to their claim.” Clement, 935
So.2d at 282.
In denying the prior summary judgment in these proceedings, we recognized
that “[t]he accident in question occurred on December 20, 2002,” that “Governor
Foster’s declaration of emergency expired on December 14, 2002,” and that “the
subject accident occurred after the state of emergency expired.” Id. at 285. We also
noted that “the ‘actual or threatened condition” of Hurricane Lili had obviously long
been over by December 20.” Id. Based on this, we found that “at the time the state
of emergency ended, LCG was no longer afforded immunity by the Louisiana
Homeland Security and Emergency Assistance and Disaster Act” and denied the
motion for summary judgment. Id. However, a review of the record now before us
indicates that the state of emergency had not, in fact, expired for the parish as it had
been extended by the parish president.
Louisiana Revised Statutes 29:724 provides, in pertinent part, as follows:
A. The governor is responsible for meeting the dangers to the
state and people presented by emergencies or disasters, and in order to
effectuate the provisions of this Chapter, the governor may issue
executive orders, proclamations, and regulations and amend or rescind
them. Executive orders, proclamations, and regulations so issued shall
have the force and effect of law.
B. (1) A disaster or emergency, or both, shall be declared by
executive order or proclamation of the governor if he finds a disaster or
emergency has occurred or the threat thereof is imminent. The state of
disaster or emergency shall continue until the governor finds that the
threat of danger has passed or the disaster or emergency has been dealt
with to the extent that the emergency conditions no longer exist and
terminates the state of disaster or emergency by executive order or
proclamation, but no state of disaster or emergency may continue for
longer than thirty days unless renewed by the governor.
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(2) The legislature, by petition signed by a majority of the
surviving members of either house, may terminate a state of disaster or
emergency at any time. This petition terminating the state of emergency
or disaster may establish a period during which no other declaration of
emergency or disaster may be issued. Thereupon, the governor shall
issue an executive order or proclamation ending the state of disaster or
emergency.
Louisiana Revised Statutes 29:727 provides, in pertinent part, as follows:
D. A local disaster or emergency may be declared only by the
parish president, except as otherwise provided in this Chapter. In that
event, the state of emergency shall continue until the parish president
finds that the threat of danger has been dealt with to the extent that
emergency conditions no longer exist. The state of emergency may be
terminated by executive order or proclamation, but no state of
emergency may continue for longer than thirty days unless extended by
the parish president. The state of emergency or disaster may be
terminated by the governor, a petition signed by a majority of the
surviving members of either house of the legislature, or a majority of the
surviving members of the parish governing authority. The document
terminating the state of emergency or disaster may establish a period
during which no other declaration of emergency or disaster may be
issued. All executive orders or proclamations issued under this
Subsection shall indicate the nature of the emergency, the area or areas
which are or may be affected, and the conditions which brought it about.
Any order or proclamation declaring, continuing, or terminating a local
disaster or emergency shall be given prompt and general publicity and
shall be filed promptly with the office of emergency preparedness and
the office of the clerk of court.
Reading these two provisions together, we conclude that a parish president may
extend a state of emergency for his parish, when the threat of danger continues to
exist, even if the governor has not extended the state of emergency statewide so long
as the governor has not issued an order or proclamation terminating the state of
emergency and established a period during which no other declaration of emergency
or disaster may be issued. In this case, the governor merely allowed the declaration
of a statewide state of emergency resulting from Hurricane Lili to lapse while the
parish president continued to extend the parish’s declaration of a state of emergency.
LCG has submitted evidence to show that the parish’s declaration of a state of
emergency was in effect on October 30, 2002, when LCG employees surveyed the
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sign in question and on December 20, 2002, when the subject accident occurred.
LCG has also submitted evidence to show that clean-up, repair, and recovery efforts
were ongoing at the time of the accident. Plaintiffs contend that the language in the
extension to the effect that the “imminent threat of damage, injury and/or loss of
property resulting from Hurricane Lili has abated” renders the extension invalid.
However, La.R.S. 29:727 clearly states that “the state of emergency shall continue
until the parish president finds that the threat of danger has been dealt with to the
extent that emergency conditions no longer exist,” and the extensions signed by the
parish president in this case do indicate that the threat of damage, injury, and/or loss
of property resulting from the aftermath of Hurricane Lili” still existed. Plaintiffs
also contend that there is no proof that the publicity and filing requirements
applicable to the extensions were met; however, no evidence was submitted in this
regard.
In sum, Plaintiffs have failed to successfully rebut Defendant's showing on its
motion for summary judgment. Our review of the record shows that there is no
remaining question of fact regarding the existence of an extension of the state of
emergency effective at the time of this accident. We again recognize that “Clearly,
LCG was provided with immunity from negligence in its efforts to remedy the effects
of Hurricane Lili during the state of emergency absent a showing of willful
misconduct. Castille v. Lafayette City-Parish Consol. Gov’t, 04-1569 (La.App. 3 Cir.
3/2/05), 896 So.2d 1261, writ denied, 05-0860 (La. 5/1305), 902 So.2d 1029.”
Clement, 935 So.2d at 285. Thus, we find that the trial court properly granted LCG’s
motion for summary judgment regarding its immunity from civil liability in this
instance.
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DECREE
For the above reasons, the trial court’s grant of summary judgment in favor of
Defendant, Lafayette City-Parish Consolidated Government, and the dismissal of
Plaintiffs’ claims with prejudice are affirmed. Costs of this appeal are assessed
equally to Plaintiffs, Shannon Clement and Jessica Vidrine.
AFFIRMED.
9