66 So. 3d 1230
La. Ct. App.2011Background
- FMI subcontracted with Harmon for removing an existing foundation and driving piles for a new foundation at a Home Depot project; Harmon was under White-Spunner Construction as general contractor.
- FMI claims total contract sums of $110,820 with $40,345 already paid, leaving $70,475 due.
- FMI sued Harmon in Nov. 2007; Harmon answered in Apr. 2008; FMI sought partial summary judgment Aug. 2008, supported by an unsworn affidavit.
- The trial court granted FMI’s first summary judgment, which the Fourth Circuit reversed for lack of prima facie evidence (unsworn documents).
- In Dec. 2009 FMI submitted a revised affidavit of Paul Tassin authenticating contract documents (Demo Proposal, Piling Proposal Agreement, and related invoices) in support of a second partial summary judgment motion; Harmon opposed with a flawed affidavit and did not raise genuine issues of material fact.
- The trial court granted FMI’s second summary judgment; Harmon appeals arguing lack of prima facie evidence, improper affidavit, and discovery/notice issues; the appellate court affirms the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FMI established a prima facie entitlement to summary judgment. | FMI (Foundation) argues Tassin’s affidavit authenticates the contracts, establishing a valid obligation. | Harmon contends the evidence does not create a genuine issue of material fact due to defective opposing affidavit. | Yes; FMI established a prima facie case via authenticated contract documents. |
| Whether Harmon's opposing affidavit complies with personal-knowledge requirements. | N/A | Harmon argues the affidavit shows personal knowledge and should defeat summary judgment. | No; the opposing affidavit failed to show personal knowledge and was disregarded. |
| Whether Harmon raised genuine issues of material fact with other documents. | NMI; FMI contends no genuine issues were raised beyond the flawed affidavit. | Harmon claims other pleadings raise issues of performance and breach. | No; Harmon did not create genuine issues of material fact. |
| Whether the trial court properly granted FMI’s second motion for summary judgment. | N/A | N/A | Affirmed; FMI awarded $70,475 plus interest, fees, and costs. |
Key Cases Cited
- Foundation Materials, Inc. v. Carrollton Mid-City Investors, L.L.C., 17 So. 3d 513 (La. App. 4th Cir. 2009) (reversed summary-judgment ruling for lack of prima facie evidence; need for proper authentication)
- Barnes v. Sun Oil Co., 362 So. 2d 761 (La. 1978) (affidavits must be based on personal knowledge; competence shown with specifics)
- Hibernia Nat. Bank v. Rivera, 996 So. 2d 534 (La. App. 5th Cir. 2008) (affidavits must show personal knowledge; unsourced beliefs rejected)
- King v. Parish National Bank, 885 So. 2d 540 (La. 2004) (summary-judgment standard and checks under Article 966)