Reno v. SCAFCOReno v. SCAFCO
Grant S. RENO
v.
SCAFCO, L.L.C., et al.
Court of Appeal of Louisiana, Third Circuit.
David Dalia, New Orleans, LA, for Plaintiff/Appellant: Grant S. Reno.
Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Baton Rouge, LA, for Defendant/Appellee: Scafco, L.L.C.
Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judgеs.
PETERS, J.
Grant S. Reno appeals a summary judgment dismissing his suit for damages against Scafco, L.L.C. (Scafco), for injuries allegedly sustained when a large piece of wood fell from scaffolding owned by Scafco and struck Mr. Reno. For the following reаsons, we affirm.
DISCUSSION OF THE RECORD
On July 1, 1996, Mr. Reno filed suit for damages against several defendants, including Scafco, in connection with injuries he allegedly sustained on July 1, 1995. It is undisputed that Mr. Reno was employed by R & H Quality Refractory Services at that time and that in connectiоn with his employment he was sent to a Venco, Inc. plant located in Carlyss, Louisiana, in Calcasieu Parish. Mr. Reno alleged that he *312 sustained severe injuries when he was struck by a large piece of wood that fell thirty or forty feet from scаffolding owned by Scafco while he was working at the Venco plant. He asserted theories of negligence and strict liability against Scafco. Ultimately, all defendants except Scafco were dismissed from the suit.
On January 18, 2000, Scafco filed a motion for summary judgment seeking dismissal of Mr. Reno's suit against it on the basis that Mr. Reno had no evidence that Scafco was "legally liable" for Mr. Reno's injuries. On May 10, 2001, the trial court denied the motion. Specifically, the court cited
On October 11, 2002, Scafco again filed a motion for summary judgment on the ground that there was no evidence as to its liability for the alleged accident. The court minutes reflect that on January 10, 2003, the motion for summary judgment was taken up, at which time the court denied the motion but granted counsel "the opportunity to prepare briefs to inform the Court of their interpretation of 2315 and 2317 regarding strict liability and negligence." Additionally, the court informed the parties "that a Motion for Reconsideration can be filed if counsel feel it applies." A transcript of the hearing is not contained in the record on appeal.
Although no "formal decree" was prepared by Mr. Reno's attorney as ordered by the court at the January 10, 2003 hearing, on February 6, 2003, Scafco filed a Motion for Clarification and Reconsideration of Judgment and/or Re-urged Motiоn for Summary Judgment and Request for Expedited Hearing. In this motion, Scafco asserted that at the January 10, 2003 hearing, the court "granted Scafco permission to move for reconsideration of whether
On March 6, 2003, a month after Scafco filed its latest motion, Mr. Reno's attorney faxed a note to the court to the effect that he needed to attend a family funeral scheduled for the next day, which was the date of the hearing on Scafco's motion, and would waive his court appearance. He additionally faxed a copy of his memorandum in opposition to the motion. In the memorandum in opposition to the motion, Mr. Reno chаllenged Scafco's interposition *313 of
On March 7, 2003, the hearing was held on Scafco's motion for summary judgment, which the court described as "more of an extrapolation or a continuance of the second [motion for summary judgment], which only continues аnd furthers the argument with regard to the issues of strict liability, as well as continuing to establish that the plaintiff will not be able to bear his burden of proof at the trial." At this hearing, the court made an express determination that
Mr. Reno has appealed, asserting the following assignments of error:
1.
2. The Louisiana Attorney General is an indispensable рarty when a court rules on the constitutionality of a statute and the court should immediately notice his presence.
3. The statute violates the constitutional guarantee of Equal Protection under the Law because it completely lacks any rational basis.
4. The Original Trial Court Opinion at Exhibit "A" should be treated as the "law of the case".
5. The statute in question is irrational and represents very poor public policy.
OPINION
Initially, we observe that Mr. Reno has not appealed the dismissal of his claims based on negligence/strict liability on the grounds that there exist genuine issues of material fact or that Scafco is not entitled to judgment as a matter of law other than to challenge the constitutionality of
Rather, we have before us on review only Mr. Reno's assignments of error numbers one, two, and three, which involve сonstitutional issues/procedure. Basically, *314 in these assignments of error, Mr. Reno challenges
We note that "[i]rrespective of how the constitutionality of a statute is challenged, the attorney general is not an indispensable party." Vallo v. Gayle Oil Co., 94-1238, p. 7 (La.11/30/94),
When the constitutionality of a statute, ordinance or franchise is assailed in a declaratory judgmеnt action the attorney general must be served with a copy of the proceeding and he is entitled to be heard and/or, at his discretion, to represent or supervise the representation of the interests of the state in the proceeding.LSA-R.S. 49:257(B) ; LSA-C.C.P. art. 1880. In all other proceedings in which the constitutionality of a statute, ordinance or franchise is assailed, the attorney general should be served notice and/or a copy of the pleading and, at his discretion, bе allowed to be heard and to represent or supervise the representation of the interests of the state in the proceeding.LSA-R.S. 49:257(B) ; see alsoLSA-R.S. 13:4448.
Id.
Additionally, the court in Vallo went on to explain:
Our Code of Civil Procedure does not require a single procedure or type of proсeeding for challenging or assailing the constitutionality of a statute. However, the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA-C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings.
Id. at 864-65 (citations omitted) (footnotes omitted) (emphasis added).
As set forth above, Mr. Reno did not attack the constitutionality of
We might well decline to consider the constitutiоnal issue as having been actually raised for the first time on appeal. See Uniform RulesCourts of Appeal, Rule 1-3; Vallo. In any event, even considering that Mr. Reno actually raised the issue at the trial court level, because he raised it in an opposition memorandum and not in а pleading, the issue was not properly before *315 the trial court in the first instance such that the court did not err in failing to address the issue. Further, Mr. Reno did not serve the attorney general or notify him of the challenge to the constitutionality of the statute at the trial court level so that the attorney general could have elected whether or not to exercise his right to represent the state's interests in the proceedings.
Accordingly, any constitutional issues regarding
DISPOSITION
For the foregoing reasons, we affirm the judgment below and assess costs of this appeal to Grant S. Reno.
AFFIRMED.
NOTES
Notes
[1] The apparent advantage to Mr. Reno in the use of
[2] Mr. Reno asserts in his reply brief to this appellate court that the attorney general has been served "with copies of these pleadings," apparently the briefs, "and should be notified of the oral argument date." Nevertheless, the attorney general was not notified at the trial court level.