author: CARAWAY, J.

text:
    SHEETS FAMILY PARTNERS-LOUISIANA, L.T.D., Plaintiff v. INNER CITY REFUGE ECONOMIC DEVELOPMENT CORPORATION, et al., Defendants.
    No. 47,156-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Billy R. Pesnell, J. Whitney Pesnell, W. Alan Pesnell, Shreveport, LA, for Plaintiff-Appellant, Sheets Family Partners-Louisiana, Ltd.
    Charles L. Harris, Jr., In Proper Person Third Party Defendant-Appellant.
    Charles J. Neupert, Jr., Shreveport, LA, for Defendants-Appellees, Inner City Refuge Economic Development Corporation and Bishop Larry L. Brandon.
    Before STEWART, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

| iThis controversy arose during the time that a financially distressed proprietary business school was being acquired by ap-pellees. Appellees entered into an agreement with the mortgage creditor of the school in the form of a six-month lease attempting to stave off a possible foreclosure so that the transfer of the school’s ownership might be completed. Appellees eventually failed to make the final two monthly payments for the lease, and the creditor instituted this suit for those rents. Appellees made a third party demand upon the owner of the school and his business entities involved in the business. After trial, the trial court rendered judgment in appellees’ favor denying the creditor’s rent claim and granting appellees a $20,000 judgment against the owner of the school. For the following reasons, we reverse the trial court’s rulings.

Facts

The American School of Business is a proprietary business school located at 702 Professional Drive North in Shreveport. In 2007, the school was owned by America’s Business School, Inc. (“ABS”), while the immovable property on which the school operated was owned by America’s Properties, Inc. (“AP”). The sole shareholder of both corporations was Charles Harris, a Maryland resident and one of the appellants. The immovable property was burdened with a mortgage held by the other appellant, the plaintiff, Sheets Family Partners-Louisiana, Ltd. (“Sheets”).

| gDavid and Linda Sue Hale gratuitously ran the school in Harris’s absence. Due to Harris’s illness, he requested that David Hale pursue a buyer for the school in 2007. Hale approached Bishop Larry Brandon about a sale. Bishop Brandon serves as the Senior Pastor of Praise Temple Full Gospel Baptist Church in Shreveport and as the Regional Bishop for the Reformation and Full Gospel Baptist Church Fellowship.

On July 30, 2007, ABS sold “all of the assets, movable, tangible and intangible” of the business school to Inner City Refuge Economic Development Corporation (“Inner City”). Bishop Brandon is the president of Inner City. The sale was made for the price of:

1) $10,000 in cash paid at the time of execution of this document.
2) Full satisfaction of the balance owing on a Forty-five Thousand and No/100 Dollars ($45,000) line of Credit with the Regions Bank, Shreveport, Louisiana; full satisfaction on the balance of an equipment lease with the Regions Bank, Shreveport, Louisiana;
3) Assumption of those outstanding obligations made in the normal course of business at the time of transfer; and
4) Other good and valuable consideration.

The $10,000 payment was made by check drawn on Praise Temple Full Gospel Baptist Church, Inc., general fund account, and dated July 30, 2007. The $10,000 was deposited in the American School of Business General Fund, for use by Inner City as they worked toward obtaining licensing approval required by the State of Louisiana. A memo on the check explained that the money was a loan to Inner City by Praise Temple for a business acquisition.

In August of 2007, Bishop Brandon and David Hale traveled to Baton Rouge to meet with the Louisiana Board of Regents, Proprietary Schools Section, the licensing agency. They submitted a draft of a change of 1 ¡¡ownership form, a requirement in the licensing process. Bishop Brandon was informed that it would be necessary to obtain updated audited financial statements for both American School of Business and Inner City. On August 17, 2007, Inner City obtained a certificate of occupancy for the business school and by October of 2007 had engaged the services of a local accounting firm to prepare the required financial statements. At that time, however, the accounting firm was unable to prepare the necessary financial information. Bishop Brandon also unsuccessfully attempted to obtain a required bond for the school from a local bonding company.

There were two transactions regarding AP’s ownership of the immovable property where the school was located. On August 10, 2007, a $10,000 check payable to AP was drawn on Praise Temple’s general fund account. The check notation described a “Property Acquisition Down Payment” for the purchase of the property at 702 Professional Drive North. Later, by a February 1, 2008 Bill of Sale, AP transferred “3000 shares of common stock $.01 par value per share of America’s Properties, Inc.,” or “100% of the authorized and outstanding stock of America’s Properties, Inc.,” to Brandon Group International, LLC (“Brandon Group”), a second corporation established by Bishop Brandon for the purchase of the property. On that same day, Harris sent notice to Brandon Group of his resignation as a member of the board of directors, the office of President/Secretary and registered agent of AP.

In March of 2008, Inner City hired two consultants to assist with the transition of the school into the control of Inner City. John Lewis and Ora|4Bedford spent time with David and Linda Sue Hale at the school learning about the day-to-day activities and administration of the facility.

On April 3, 2008, Sheets, represented by Jerry Wood, entered into a March 31, 2008 “letter agreement” (hereinafter the “Lease”) with Inner City. In this lease agreement, Inner City agreed to lease the immovable property on which the school operated and on which Sheets had its mortgage. The Lease noted that the mortgage was “currently in default and Sheets Family Partners is in the process of reacquiring ownership of the Property.” Sheets agreed to lease to Inner City:

[T]he buildings and improvements located at 702 Professional Drive North, Shreveport, Louisiana, for the operation of a proprietary school and for a rental of Seven Thousand and No/100 Dollars ($7,000.00) per month payable in advance on the first day of each month for a period of six (6) months, beginning April 1, 2008, through September 30, 2008, both inclusive. It is understood and agreed that:
(a) Lessee accepts the buildings and improvements in their present condition “as is” and will keep the buildings and improvements in good condition throughout the term of this lease and make all necessary repairs at its cost and expense;
(b) Lessee will pay all utilities during the term of this Lease; and
(c) Lessee will pay one-twelfth (1/12) of the annual premiums of Three Thousand Nine Hundred Ninety And No/100 Dollars ($3,990.00) being paid annually by Sheets Family Partners, or Three Hundred Thirty-Two And 50/100 dollars ($332.50) per month, as premiums for fire and extended coverage and public liability insurance on the Property each month during the term of this Lease.

The Lease required Inner City to pay $14,665 at the time of its execution, which represented the rent for the first and last months of the Lease. An acceleration clause was provided in the event of Inner City’s failure to pay rent timely. The Lease included these final two clauses:

| ^Lessee’s obligations under this lease are personally guaranteed by Bishop Larry L. Brandon, who hereby binds himself in solido with Lessee for the performance of Lessee’s obligations.
It is expressly understood and agreed that Lessee Bishop Larry L. Brandon will not become personally liable for the obligations of America’s Properties, Inc., and Charles Harris, Jr. under the aforesaid Note and Mortgage by executing and performing this Lease and by occupying the Property pursuant to this Lease.
The parties have executed this Lease with the expectation that a long-term lease will be executed by the parties prior to the expiration of this Lease.

In accordance with the Lease, Inner City paid Sheets the sum of $14,665 on April 3, 2008. Inner City also paid the May and June rental payments.

In May of 2008, Inner City sought a second audited financial statement of its business. The audit report did not include American School of Business in Inner City’s assets. Inner City had no license to operate a proprietary school and the accounting firm considered that the failure of certain conditions indicated that the sale of the assets had not been completed.

In early July of 2008, according to Lewis, David Hale informed him and Bedford that the sale of the business was not going to happen and there was no need for them to remain or return to the school. Lewis further testified that no representative of Inner City returned to the school after that time and Inner City ceased paying rent. David Hale denied that these facts occurred.

Through Wood’s testimony, the record shows that the immovable property was conveyed back, by a dation en paiement, to Sheets sometime | fiin 2009 or 2010. No copy of the dation en paiement was submitted into evidence. In a supplemental brief submitted to the court, Inner City contends that during 2009 or 2010, American School of Business was sold by Charles Harris to a third party purchaser and that the immovable property was transferred to Sheets by “America’s Properties, Inc./Charles Harris” through a dation en paiement. However, no testimony or evidence establishes these facts or demonstrates how Harris regained ownership of the school and the encumbered property from Inner City and Brandon Group.

On July 11, 2008, Sheets sent a demand letter to Inner City seeking payment of the July rent or acceleration of the remaining balance on the lease in the amount of $14,665. When no further payments materialized, Sheets filed this suit against Inner City and Bishop Brandon on July 21, 2008, seeking the July and August lease payments. By amended answer to the action, Inner City and Bishop Brandon raised the defense of Sheets’ breach of the Lease resulting' from the interruption of Inner City’s peaceful possession of the property in July 2008. Inner City and Bishop Brandon also filed a third party demand against ABS, AP, Linda Sue Hale, and Charles Harris.

Trial of the case occurred in May 2011. After hearing the testimony of witnesses and considering the documentary evidence, the court granted an involuntary dismissal in favor of Linda Sue Hale, dismissing her from the action on May 19, 2011. On the main demand, the court ruled in favor of Inner City and Bishop Brandon, rejecting Sheets’ claim for unpaid rent. On |7the third party demands, the court ruled in favor of Inner City and Bishop Brandon granting judgment against Harris only for the sum of $20,000. The judgment failed to dispose of the third party claims against ABS and AP.

In oral reasons for judgment the court noted as follows:

This is a confusing and convoluted case upon which the plaintiff, Sheets has the burden of proof. When the lease was entered Sheets did not own the property; Charles Harris, and/or his business entity owned it and Sheets was in the process of reacquiring it as the holder of a promissory note and as mortgagee. In July and August, 2007, Inner City and Bishop Brandon ultimately paid $20,000 to Americas Properties, Inc., corporations in which Charles Harris owned 100% of the stock, and Inner City and Bishop Brandon paid Sheets $29,330.00; thus a total of $49,330.00 was paid by Inner City and Bishop Brandon. In return, Inner City and Bishop Brandon received what appears to be worthless stock and little, if any, use of the leased premises.... In light of the most peculiar circumstances of this case, the Court concludes that Sheets has not carried its burden of proof as to Inner City and Bishop Brandon. The Court believes that Bishop Brandon and Inner City were constructively dispossessed and disturbed of the peaceful possession of the leased premises by the actions of the Hales, both of whom curiously work without compensation and maintain an unusual loyalty to Charles Harris as well as Sheets. In light of the substantial amount of money paid to Harris for which Bishop Brandon received little or no value and in light of the dation en paiement from Harris and/or his corporation to Sheets extinguishing the obligation, the Court concludes that under these unusual circumstances it would be an injustice to render judgment against Bishop Brandon and Inner City. Stated differently, the Court finds Bishop Brandon credible and believes he was an innocent victim in a bizarre transaction. Accordingly on the main demand, a formal Judgment shall be rendered in favor of Inner City and Bishop Brandon against Sheets.

On the third party demand, the Court stated as follows:

[T]he court heard testimony from Bishop Brandon but, because Mr. Harris purposely absented himself from these proceedings, the Court received no evidence from the third party defendants (with the exception of Mrs. Hale, who is dismissed). There is sufficient unrebut-ted and unchallenged evidence from Inner City and Bishop Brandon entitling these third party plaintiffs to judgment against third party defendant Charles Harris. Although counsel for Inner City and Bishop Brandon have sought the amount of $49,330.00, the Court is of the view that third party plaintiffs are entitled to $20,000.00, | ^representing the total amount paid by third party plaintiffs to Mr. Harris.

Appeal of this matter by both Harris and Sheets ensued.

Discussion

I.

On appeal, Sheets argues that the trial court erred in concluding that the interruption of Inner City’s peaceable possession of the leased property amounted to a breach of the Lease, defeating Sheets’ claim for unpaid rent. Sheets asserts that Inner City along with the other Brandon-related entities owned the school and the property encumbered by its mortgage and could not be disturbed in possession of the school under the facts asserted by Inner City.

The lessor is bound to deliver the thing to the lessee, to maintain the thing in a condition suitable for the purpose of which it was leased; and to protect the lessee’s peaceful possession for the duration of the lease. La. C.C. art. 2682. A lease of a thing that does not belong to the lessor may nevertheless be binding on the parties. La. C.C. art. 2674. The lessor warrants the lessee’s peaceful possession of the leased thing against any disturbance caused by a person who asserts ownership, or right. to possession of, or any other right in the thing. La. C.C. art. 2700. The Lessor is bound to take all steps necessary to protect the lessee’s possession against any disturbance, as soon as the lessor is informed of such a disturbance. If the lessor fails to do so, the lessee may, without prejudice to his rights against the lessor, file any appropriate action against the person who caused the disturbance. La. C.C. art. 2701. The lessee is bound to 19notify the lessor -without delay when his possession has been disturbed by a third person. La. C.C. art. 2688.

The term disturbance of possession of the lessee as set forth in Civil Code Articles 2700 and 2701 is intended to have the same meaning as that set forth in La. C.C.P. art. 3659 which states in relevant part as follows:

A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.

See Revision Comments, La. C.C. art. 2700; McCurdy v. Bloom’s Inc., 39,854 (La.App.2d Cir.6/29/05), 907 So.2d 896.

The parties have presented the controversy concerning the Sheets/Inner City agreement in the context of the law of lease. The trial court correctly described the parties’ dealings as somewhat “convoluted.” Its ruling placed some emphasis on the fact that Sheets did not own the property at the time of the Lease. The Lease stated that Sheets was “in the process of reacquiring ownership of the Property.” There was no evidence of any actual foreclosure and no copy of Sheets’ alleged mortgage was produced. However, Sheets’ mortgagor status as discussed in the Lease is an accepted fact by the parties.

With Sheets’ assertion of the pending foreclosure as stated in the Lease, the agreement shows that its substance also involved aspects of a forbearance agreement, making the contract somewhat inno-minate and not merely a lease. See La. C.C. art. 1914. At the time of the execution of the Lease, Bishop Brandon and Inner City either owned and controlled, or had the right to control, all movable assets of the school and the school land | ^subject to Sheets’ rights as the mortgage creditor. Bishop Brandon bound himself personally to the obligations of the Lease. There was no dispute raised in this action by Inner City, Bishop Brandon, or the corporations controlled by Bishop Brandon, AP and Brandon Group, that Sheets violated its rights as creditor in extending forbearance from foreclosure in exchange for the obligation for the rental payments under the Lease. We therefore do not find that this contract between the parties is subject to attack because Sheets did not own the property. From the principles for lease which the parties assert, Civil Code Article 2674, supra, also confirms that the agreement was binding.

Turning to the issue of the disturbance of Inner City’s possession under the Lease, we find that Inner City’s assertion that Hale prevented its possession and continued operation of the school to be insufficient to nullify its obligations to Sheets under the Lease. Regardless of any statements made by David Hale in early July 2008 informing Inner City’s representative that the “deal” for the school would not materialize, the transfer of the assets of the school had already occurred. Harris, who controlled the school through his two corporations, ABS and AP, had conveyed his control and ownership to Inner City and Brandon Group in 2007 and early 2008 before Hale’s alleged eviction statements to Lewis. There was no showing that despite Harris’s transfer of the school, he somehow retained legal control or ownership over the property. There was | „no evidence of any communication by Harris to Inner City or Bishop Brandon to cease Inner City’s involvement with the school. Most importantly, there is no evidence demonstrating that Sheets acted through either Hale or Harris in July 2008 to dispossess Inner City of its occupancy rights to the property.

At best, the evidence of July 2008 reveals difficulty in the transition of the school into Inner City’s complete control because of nonapproval by the state licensing board and Hale’s actions. This difficulty involved Inner City and Bishop Brandon’s effort in acquiring the school, which was a transaction separate from Sheets’ agreement for forbearance. Inner City never asserted to Sheets that the transition problems with its acquisition of the school amounted to its eviction from the property. The uncertainty of that transfer process was present upon Inner City’s execution of the Lease and its receipt of Sheets’ forbearance. That uncertainty cannot be now asserted well after the filing of Sheets’ action as a defense to Inner City’s obligations to Sheets. La. C.C. art. 2688.

Accordingly, we reverse the trial court’s ruling that Sheets breached the Lease. Any statements by David Hale did not amount to a dispossession of Inner City’s rights to the school properties as neither Hale nor Harris had a legal right to occupancy and possession of the property. Sheets’ claim for the remaining rents under the Lease is granted.

_b II.

Harris appealed the trial court’s $20,000 judgment against him in favor of Inner City and Bishop Brandon (hereinafter collectively the “Third Party Plaintiffs”).

Third Party Plaintiffs filed a third party demand against ABS, AP, Linda Sue Hale and Charles Harris on the grounds of unjust enrichment. Third Party Plaintiffs initially sought repayment of $29,330, representing taxes, rents and insurance paid by them on behalf of the defendants during the months of April, May, June and July of 2008. Third Party Plaintiffs alleged that the property was leased from Sheets “only as an accommodation” and “in reliance on the promises and representations” of the third party defendants to “eventually turn over operation of the business school, and complete the sale of the school” to Third Party Plaintiffs. Third Party Plaintiffs alleged that they would not have made the lease payments to Sheets except for their reliance on the representations of the third party defendants. They claimed that those defendants were unjustly enriched as a result of “any and all payments made on its behalf’ by Third Party Plaintiffs. Third Party Plaintiffs alleged that Charles Harris personally benefited from the rental payments “by retaining a tenant in his property and receiving payment of a portion of the taxes and insurance he is required to maintain on the property.”

In a post-trial brief, Third Party Plaintiffs claimed for the first time entitlement to an additional $20,000, representing the two $10,000 payments made to ABS and AP. Specifically, they asserted in brief that 11s“Mr. Charles L. Harris Jr. and his corporations, America’s Properties Inc. and America’s Business School, Inc. received Twenty Thousand Dollars ($20,-000.00)” from Inner City, and Harris was “enriched by this amount at the expense” of Inner City. Third Party Plaintiffs argued that in return for the $20,000 payments, Inner City was “basically allowed to shadow Mr. David Hale and attempt to meet his demands” until the transaction was terminated.

The provisions of La. C.C. art. 2298 read as follows:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.
The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.

Prior to the enactment of the above article, the Louisiana Supreme Court established five requirements for proving unjust enrichment, as follows: (1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and the resulting impoverishment; (4) there must be an absence of justification or cause for the enrichment and impoverishment; and (5) there must be no other remedy at law available to the plaintiff. Hall v. James, 43,263 (La.App.2d Cir.6/4/08), 986 So.2d 817. See Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207.

The trial court’s ruling appears to have rejected the Third Party Plaintiffs’ claim for the amounts paid under the Lease, totaling $29,330. In any event, we do not find that these payments for rent and taxes for which Third Party Plaintiffs became contractually obligated to Sheets are recoverable under our unjust enrichment law. There was a contractual cause for the Third Party Plaintiffs’ impoverishment. The enrichment to the school resulting from Sheets’ six-month forbearance was a direct benefit to Inner City and Bishop Brandon who were the owners of the school assets and land.

To the extent that the $20,000 represents the payments made for Inner City’s acquisition of the school assets from ABS and Brandon Group’s acquisition of AP, any claim for the breach of those two purchase contracts was outside the pleadings, and there was no expansion of the pleadings at trial by evidence specifically asserting such breach. Moreover, ABS and AP, who were made third party defendants, were not cast in judgment. When a judgment is silent as to a claim or demand, it is presumed that the claim or demand has been denied. Bell Foundry Co. v. Lonnie McCurry’s Four Wheel Drive Center, Inc., 46,553 (La.App.2d Cir.10/5/11), 75 So.3d 529, writ denied, 11-2467 (La.1/20/12), 78 So.3d 145; Action Revenue Recovery, L.L.C. v. eBusiness Group, L.L.C., 44,607 (La.App.2d Cir.8/19/09), 17 So.3d 999. Because no appeal of that portion of the judgment has been taken, it is final.

| ^Accordingly, we do not find that Third Party Plaintiffs are entitled to recovery from Harris under a theory of unjust enrichment. The judgment against him is reversed.

Conclusion

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is rendered in favor of Sheets on the main demand for the full sum of $14,665, together with legal interest as provided by law. Costs of this appeal are assessed to Inner City and Bishop Brandon. ■

REVERSED AND RENDERED.

      . The testimony indicates that the general partner of Sheets sold the business school to ABS in 2002.

      . In Inner City documentation included in the record, Bedford was referred to as the Executive Director of the American School of Business.

      . The trial court’s written ruling indicated that when the Lease was executed in April of 2008, Harris or his businesses owned the school. The record of the earlier transactions is to the contrary.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    CAPITAL ONE, NA, Plaintiff-Appellee v. Joy Carleta Ellis WALTERS and Darrel DeWayne Walters, Defendant-Appellants.
    No. 47,157-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Joy Carleta Ellis Walters and Darrel DeWayne Walters, In Proper Person.
    McMichael, Medlin, D’Anna, Wedge-worth & Lafargue, Shreveport, LA, by Norman I. Lafargue, for Appellee.
    Before WILLIAMS, MOORE and SEXTON (Pro Tempore), JJ.
   MOORE, J.

hJoy Carleta Ellis and Darrel DeWayne Walters, pro se, appeal a summary judgment ordering them to pay the balance due on a promissory note and recognizing a mortgage on their real property. We affirm.

Factual and Procedural Background

In July 1997, the Walterses took out a home equity loan from Hibernia National Bank. They executed an “Equity Prime-line” note for $50,000 at an APR of 8.5% (the first six months at 6.99%), payable in 120 monthly installments of $50.00 each, a balloon payment for the balance due upon maturity, and attorney fees of 25% if the account is terminated or the balance accelerated. At the same time, they executed a home equity mortgage encumbering their house, Lot 3, Willow Point Townhouses Unit # 3, subject to a maximum indebtedness of $1 million.

In June 2009, Capital One N.A. filed this suit to collect the balance due on the note and for recognition of the mortgage. The petition alleged that Capital One was formerly known as Hibernia National Bank; the Walterses had executed the equity primeline; as of February 10, 2009, they still owed $18,603.24, plus accrued interest of $1,355.50, late charges of $362.18, and 25% of the principal plus interest as attorney fees. The petition also sought recognition that the money judgment was secured by the home equity mortgage affecting the property.

Darrel Walters filed a pro se affidavit alleging that Capital One was a “debt collector” to which he had sent a notice of dispute, in accordance with a private administrative remedy, but Capital One never provided him a certified proof of claim; he therefore considered the debt extinguished and 12discharged. He also requested damages of $1.5 million, but he never filed a reconventional demand.

Apparently unaware of this affidavit, Capital One took a preliminary default which it confirmed on August 10, 2009. Joy Walters responded with her own “affidavit to extinguish and discharge notice of judgment.”

Over a year later, in November 2010, Capital One filed the instant motion for summary judgment, conceding that because Darrel Walters’s affidavit could be construed as an answer, the default judgment was granted in error. Capital One therefore sought summary judgment for the same relief: the unpaid balance of $18,603.24, accrued interest of $1,355.50, late charges of $362.18, “collectible fees” of $25.00, attorney fees of 25% of principal and interest, and recognition of the mortgage. In support, it attached an affidavit and verification of debt from Susan Bellin-ski, Capital One’s “Collections Lead,” confirming these amounts, and a certified copy of the mortgage.

The Walterses responded with a pro se memorandum, alleging chiefly that the default judgment was absolutely null. They also argued that because the default was null, the court could not simply “ratify” it by summary judgment. However, they attached no affidavits, depositions or certified documents in opposition.

At the hearing on April 18, 2011, Capital One’s counsel offered certified copies of the note and mortgage, along with Ms. Bellinski’s affidavit, and prayed for summary judgment. Joy Walters complained that service of the preliminary default was defective, but the court advised her Rthat because they had filed responsive pleadings, insufficiency of service was waived. The Walterses offered no summary judgment evidence in opposition, and the court granted Capital One’s motion as prayed for.

The Parties’ Positions

The Walterses have appealed, pro se, urging by one assignment of error that summary judgment was improper because “questions of material fact exist as revealed in the timely answer to the law suit.” They contend that (1) “Exhibit ‘A’ (In Globo)” proved their answer was timely; (2) they “contested whether or not the debt legally existed [at] the point in time Capital One N.A. filed suit”; (3) they contested “whether or not Darrel Walters’s signature legally appears on any document purporting to be for purposes of advancing credit on his property.” By supplemental brief, they restate the genuine issues as follows: (1) Darrel Walters did not make a loan or establish a line of credit with Capital One N.A.; (2) the signature which is purported to be that of Darrel Walters is in fact not that of Darrel Walters; (3) the property described in the judgment is not the correct property address alleged to be that of Joy Walters who may have a debt with Capital One N.A.; and (4) the property description is not correct. They also assert, “The record is void of any attempt by the District Court to remedy the fact that Joy Walters (the main defendant) was not present in court for the summary judgment hearing.” They strongly urge this court to read their pro se filings indulgently, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and pray for a “full evidentiary hearing on the merits.”

14 Capital One submits that the Walterses failed to identify or provide evidence of any genuine issue of material fact, but raised only “vague and unsubstantiated arguments.” It suggests that certified copies of the note and mortgage, with the affidavit of correctness, are sufficient to support the summary judgment. JPMorgan Chase Bank NA v. Jones, 42,396 (La.App. 2 Cir. 12/5/07), 972 So.2d 1172. With the motion made and supported, the burden shifted to the Walterses to set forth specific facts showing a genuine issue for trial, but they merely rested on the allegations and denials of their pleadings. La. C.C.P. art. 967 B. As both the note and mortgage are notarized, the court should not have to guess whether Darrel Walters’s signature “legally appears” on either. Capital One also argues that the numerous uncertified documents attached to the Walterses’ earlier affidavits show only that they demanded 32 different “proof of claims,” and not that the debt was extinguished. Capital One seeks affir-mance.

Discussion

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 sought 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 on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The mover need not negate every essential element of the opponent’s claim, action or defense; he need only point out the absence of factual support for |sone or more essential elements. La. C.C.P. art. 966 C(l).. If the opponent then fails to produce support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2); Babin v. Winn-Dixie La., 2000-0078 (La.6/30/00), 764 So.2d 37; Citibank (South Dakota) NA v. Mayo, 45,945 (La.App. 2 Cir. 1/26/11), 58 So.3d 960. 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 B; Samaha v. Rau, supra; Brooks v. Transamerica Financial Advisors, 45,833 (La.App. 2 Cir. 2/2/11), 57 So.3d 1153.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein; sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. La. C.C.P. art. 967 A; Samaha v. Rau, supra.

Appellate review of summary judgment is de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sensebe v. Canal Indem. Co., 2010-0703 (La.1/28/11), 58 So.3d 441; Citibank (South Dakota) NA v. Mayo, supra.

On de novo review, we find that Capital One supported its motion for summary judgment with the original “equity primeline” (promissory note) and a certified copy of the home equity mortgage, both attached to the 1 (¡original petition, and the affidavit and verification of debt of its collection agent, Ms. Bellinski, attached to the motion for summary judgment. This kind of evidence has repeatedly been found sufficient to support the lender’s motion for summary judgment. JPMorgan Chase Bank NA v. Jones, supra; Sears, Roebuck & Co. v. Richardson, 32,951 (La.App. 2 Cir. 4/5/00), 759 So.2d 190; First Nat’l Bank of Commerce v. Houston, 605 So.2d 1 (La.App. 2 Cir.1992). With this showing, the burden shifted to the Walterses to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial. La. C.C.P. art. 967 C(2).

Even with an indulgent reading of the Walterses’ pleadings, this court cannot find that they satisfied their burden. True, Darrel Walters’s initial affidavit, which the district court construed as an answer, and their memorandum in opposition to the motion for summary judgment, both contested the petition on various grounds. However, these raise only conclusory claims. Neither one is supported by the kind of documentation required by Art. 966 B — no depositions, answers to interrogatories, admissions on file, or affidavits asserting material facts — that would be competent summary judgment evidence under Art. 967. They merely rested on the allegations of their pleadings, a showing inadequate to defeat a properly supported motion for summary judgment.

The main thrust of the Walterses’ argument, that Darrel Walters’s signature does not “legally appear” on any of the instruments of debt, is unavailing. When the motion for summary judgment is properly supported, the debtor cannot defeat the motion with a general denial that his signature [7is valid or authorized; he must raise specific facts. Wesla Fed’l Credit Union v. Henderson, 26,984 (La.App. 2 Cir. 5/10/95), 655 So.2d 691; Citibank (South Dakota) NA v. Mayo, supra. We find no specific facts sufficient to defeat Capital One’s motion.

We have also examined the attachments to Darrel Walters’s initial affidavit to see if they set forth any possible issue for trial. These show only that the Walterses pursued debt evasion tactics by sending Capital One a long and at times incomprehensible string of requests for proof of claim. Considering that the Walterses paid over $30,000 on the $50,000 note signed by them, thereby acknowledging the validity of the debt, such requests do not show that the note was invalid or discharged. This argument lacks merit.

Finally, we must correct an assertion made in the Walterses’ rebuttal brief: “The record is void of any attempt by the District Court to remedy the fact that Joy Walters (the main defendant) was not present in court for the summary judgment hearing.” The transcript clearly shows that both Joy and Darrel Walters were present at the hearing and Ms. Walters addressed the court several times. This argument lacks merit.

Conclusion

For the reasons expressed, the summary judgment is affirmed. Costs are to be paid by the defendants, Joy Carleta Ellis Walters and Darrel DeWayne Walters.

AFFIRMED.


author: COOKS, Judge.

text:
    Theresa ST. JULIEN v. Julie Walters LANDRY.
    No. 12-100.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 2012.

      Steven Diebold, Champagne and Brum-baugh, Lafayette, LA, for Plaintiff/Appellant, Theresa St. Julien.
    Patricia K. Penny, Bolen, Parker, Brenner, Lee & Engelsman, Ltd., APLC, Alexandria, LA, for Defendant/Appellee, Julie Walters Landry.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

h FACTS AND PROCEDURAL HISTORY

Theresa St. Julien (Plaintiff) was allegedly injured when she was knocked down by a dog that came onto her property from her neighbor, Julie Walters Landry’s (Defendant), yard. The dog allegedly had been tied with a leash in the neighbor’s yard but suddenly came upon Plaintiffs property knocking her to the ground. Plaintiff sued Defendant alleging in her original petition that the dog was either owned by Defendant or by others present at her home as either guests or invitees. Plaintiff also alleged in her original petition that Defendant’s fault or negligence was the proximate cause of her injuries resulting from Defendant’s (1) failure to secure the animal; (2) failure to prevent the animal from coming onto Plaintiffs property; (3) failure to control the animal in a manner which would have prevented the harm to Plaintiff; (4) failure to do what a reasonable person would do to avoid injury to Plaintiff from the animal; and (5) failure to refrain from what Defendant should reasonably have refrained from to avoid injury to Plaintiff. Defendant answered the suit denying Plaintiffs allegations and setting forth affirmative defenses alleging Defendant’s negligence was the sole, proximate cause of her injuries or alternatively was a contributing cause. Defendant alleged Plaintiffs negligence included (1) failing to keep a proper lookout; (2) failing to see what she should have seen; (3) failing to take appropriate measures for her safety; (4) failing to act reasonably and prudently under the circumstances; (5) inattentiveness; and (6) carelessness.

The original Petition, Request for Admissions of Fact, and Interrogatories were filed November 29, 2010. The record does not contain any response by Defendant to Plaintiffs Request for Admissions of Fact. On July 14, 2011, Defendant filed a Motion for Summary Judgment alleging Defendant was Lnot the owner of the dog and, therefore, was not liable for any injuries allegedly suffered by Plaintiff. Defendant attached her affidavit averring that she was (1) not the owner of the dog; (2) “did not secure the dog;” and (3) had no knowledge that the dog ever displayed “any propensity toward viciousness prior to the date alleged in Plaintiffs petition.” On July 28, 2011, Defendant filed an unopposed motion to continue the hearing on summary judgment. The court granted the motion and reset the hearing for September 12, 2011.

Plaintiff filed an amended and supplemental petition on August 31, 2011, adding Desiree Landry (Desiree) as an additional Defendant, alleging she occupied the home located at 115 Sunset Drive, Lafayette, LA 70501, at the time the dog allegedly injured Plaintiff, and that the dog was owned by either her or Defendant, or both, or was owned by occupants of the house present as guests or invitees of her and/or Defendant. The amended petition further set forth the same allegations of fault and negligence contained in the original petition made applicable to Desiree. The amended petition was accompanied by a copy of the same interrogatories which accompanied the original petition.

Defendant did not send her response to Plaintiffs interrogatories until July 21, 2011, a week after Defendant filed her Motion for Summary Judgment. The affidavit, submitted by Defendant in support of her motion for summary judgment, was executed two months before Plaintiff received Defendant’s discovery responses. Plaintiff and Defendant entered the pleadings and several letters and “GMails” as well as response to interrogatories into evidence. After hearing argument of counsel, the trial court granted Defendant’s Motion for Summary Judgment stating in the written judgment: “The court finds that Julie Walters Landry was not the owner of the dog at issue.” Plaintiff appeals alleging three assignments of error:

|sl. The 15th Judicial District Court committed reversible error in granting summary judgment before adequate discovery was conducted or before the case was set for trial.
2. The 15th Judicial District Court committed reversible error in finding that Julie Walters Landry did not own the dog.
3. The 15th Judicial District Court committed reversible error in granting summary judgment and effectively foreclosing the possibility of proving Julie Walters Landry’s liability due to negligence.

LAW AND DISCUSSION

Motions for summary judgment are governed by the provisions of La.Code Civ. P. art. 966 which provides in pertinent part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
B.The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is 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 14more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce 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.

We review the grants of a summary judgment de novo. In reviewing the case before us, we first note that the record does not contain any response filed by Defendant to Plaintiffs Requests for Admissions of Fact. Under the provisions of La.Code Civ.P. art. 1467(A), a fact is deemed admitted if the responding party fails to timely “serve[] upon the party requesting the admission” his written answer or objection. A responding party ordinarily has fifteen days to file his response or objection, however, La.Code. Civ.P. art. 1467(A) also provides that “a defendant shall not be required to serve answers or objections before the expiration of thirty days after service of the petition upon him.” Plaintiff filed suit on November 29, 2010, and attached to her Petition to be served upon Defendant a Request for Admissions of Facts and Interrogatories. Defendant did not file an Answer until April 6, 2011. From the record before us, we are able to determine that Defendant failed to timely answer or object to Plaintiffs Requests for Admissions of Fact and they are therefore deemed to be admitted. The trial judge should have considered these admissions of fact, as directed in La.Code. Civ.P. art. 966, when deciding whether to grant or deny Defendant’s motion for summary judgment. The facts deemed to be admitted by Defendant are contrary to Defendant’s representations in her affidavit. In her affidavit, Defendant asserts that she is not the owner of the dog and that she never attempted to “secure the dog.” The facts deemed to be admitted indicate Defendant admits she owned the residence located at 117 Sunset Drive, Lafayette, Louisiana 70501, and that “[o]n September 24, 2010,” she owned the dog present at that address. Defendant is further deemed to have admitted that Isshe was “aware that on occasions prior to September 24, 2010, your dog has entered the premises of your neighbor’s property located at 115 Sunset Drive, Lafayette, Louisiana, 70501[,] without the permission of the property owner.” Defendant also is deemed to have admitted that her dog knocked down Plaintiff causing her injury and that she was aware that the dog was not properly secured which allowed it to enter upon Plaintiffs property. The effects of any matter admitted or deemed to be admitted under La.Code Civ.P. art. 1467 are defined in La.Code Civ.P. art. 1468, which provides:

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Article 1551 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under Articles 1466 and 1467 is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

Thus, faced with the facts deemed to be admitted by Defendant and the contradictory facts asserted in her affidavit, the trial judge, in order to reach his decision, would have had to engage in weighing the facts. Such is not appropriate on summary judgment, as this by its very nature indicates there are genuine issues of material facts in dispute. Moreover, at this stage of the proceedings, Plaintiff, relying on the facts deemed to be admitted by Defendant, shifted the burden of proof on the Motion for Summary Judgment to Defendant. Defendant did not employ the proper procedural mechanism for withdrawing or amending her factual admissions, instead she simply filed a self-serving affidavit contradicting some of the facts deemed previously admitted. This alone precluded summary judgment as there clearly are many genuine issues of material fact. Defendant’s admission in her affidavit that she never “secured the dog” might well be interpreted as an | ^admission of negligence on her part as custodian of the dog, which may have proximately caused Plaintiffs injuries. Contrary to the trial court’s erroneous ruling, even if Defendant is not the owner of the dog that allegedly injured Plaintiff, Defendant may still be liable to Plaintiff under Louisiana’s tort laws regarding negligence and strict liability.

The record on appeal does not contain evidence of service upon Defendant and does not contain any written response or objection to Plaintiffs Request for Admissions of Fact. However, the record does contain a letter addressed to Mr. Steven Diebold from defense counsel dated April 4, 2011, identified as Exhibit P-2, in which defense counsel states, “Enclosed please find a copy of the Answers To Petition For Damages, as well as Responses to Request for Admissions in reference to the above matter. I have filed the answer to the petition with the clerk of court for Lafayette Parish.” The matter referenced in the letter is identified as “Civil Suit No. C-20107696B Theresa St. Julien v. Julie Walters Landry, et al.” The record also contains a copy of a “Gmail” sent from Plaintiffs counsel to Defendant’s counsel wherein he states Defendant was served with the initial pleadings on February 2, 2011. Thus it is clear Defendant did not timely file her response to Plaintiffs Request for Admissions of Fact nor did she file an objection thereto.

We begin our analysis of tort liability under Louisiana law with Louisiana Civil Code Article 2317: “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.”

Under these provisions an individual custodian of property, just as the owner of such property, may be liable for any damages to any person who is injured by [7the thing in their custody. Ownership, as solely relied upon by the trial court in this matter, is not solely determinative of who bears liability to the injured party. In Melerine v. State of Louisiana, 2000-162, p. 4 (La.App. 4 Cir. 11/08/00), 773 So.2d 831, 834, writs denied, 789 So.2d 595, 599 (La.4/12/01) (Emphasis added) the fourth circuit explained:

Under La. C.C. art. 2317, liability is imposed upon an individual as a custodian for damage caused by things in his custody. Loescher v. Parr, 324 So.2d 441 (La.1975).
To recover under La. C.C. 2317, a plaintiff must prove that he was injured by a thing which was in the care or custody of the defendant and that such thing was defective. Fonseca [v. Marlin Marine Corp.], supra [410 So.2d 674 (La.1981) ]; Loescher, supra.

Louisiana Civil Code Article 2317.1 provides:

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 been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In a recent case, the Louisiana fifth circuit court of appeal, in addressing the provisions of La.Civ.Code art. 2317 and 2317.1, noted:

Custody, distinct from ownership, refers to a person’s supervision and control (garde) over a thing. Hebert v. St. Paul Fire and Marine Ins, Co., 99-333, p. 4 (La.App. 4 Cir. 2/23/00), 757 So.2d 814, 816; Alford v. Home Ins. Co., 96-2430 (La.App. 1 Cir. 11/7/97), 701 So.2d 1375, 1377, writ denied, 97-3029 (La.2/13/98), 709 So.2d 749. Our Louisiana Supreme Court has used a two part test in determining whether the defendant has custody. First, the defendant should have a right of direction and control over the thing. Second, a court should examine what, if any, kind of benefit the defendant derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991); King v. Louviere, 543 So.2d 1327, 1329 (La.1989).

Marie v. American Alternative Ins. Co., 11-832, p. 3 (La.App. 5 Cir. 3/27/12), 97 So.3d 8,12.

In Holland v. Teague, 43,496, pp. 6-8 (La.App. 2 Cir. 9/17/08), 996 So.2d 325, 328-29 (emphasis added), the second circuit, determining the defendants’ liability for a stray dog which had been kept on their property and ventured onto a roadway causing a serious motorcycle accident, reasoned that:

In Rozell v. Louisiana Animal Breeders Coop., 434 So.2d 404 (La.1983), the court found the owners of a bull strictly liable for an accident that occurred when the bull was in the custody of Louisiana State University Dairy Improvement Center. In considering whether the defendants could escape liability by entrusting the animal to the custody of another, the court said:
One who entrusts his animal to the care of another is still the owner. Under Article 2321, he remains liable for damages inflicted by that animal. Ownership alone is the basis of liability.... By entrusting the animal to another custodian, the owner does not escape responsibility. As to damages inflicted by that animal, the custodian is a third person for whom the owner is answerable. LSA-C.C. art. 2317 [footnote omitted].

Id. at 408. In footnote 9 at the end of the above quote, the court said:

This does not preclude any independent cause of action against one who has an animal, a “thing, in his custody. LSA-C.C. art. 2317.
The Rozell statements therefore indicate that both Article 2317 (custody) and Article 2321 (ownership) may apply to impose strict liability upon a defendant with sufficient control or ownership of the dog.
The most recent case of our supreme court is Pepper v. Triplet, 03-619 (La.1/21/04), 864 So.2d 181. The case interprets Article 2321 after its amendment in 1996, but clearly involved a claim against a dog owner. In holding that the “unreasonable risk of harm” criterion still applies for the measure of strict liability for dog-related injuries, the court observed:
Given that Article 2317 and the first clause of former Article 2321, now the first sentence of revised Article 2321, seemingly impose liability without fault in all cases upon the owner or guardian of the defective thing or animal, the Loescher [v. Parr, 324 So.2d 441 (La.1975) ] and Boyer [v. Seal, 553 So.2d 827 (La.1989) ] cases effectively represented an attempt to limit the owner or guardian’s strict liability under the rationale that the owner should not ] fibe required to insure against all injury however small the risk might be.
This court and other Louisiana courts have addressed instances where the defendant was not the owner of the dog. Terral v. Louisiana Farm Bureau Cas. Ins. Co., 39,360 (La.App. 2 Cir.1/26/05), 892 So.2d 732; Thompson v. Sicard, 385 So.2d 334 (La.App. 1 Cir.1980), writ denied, 386 So.2d 355 (La.1980); Tillman v. Cook, 3 So.2d 230 (La.App.Orleans 1941). Without completely addressing the possible limitation imposed by the ownership requirement of Article 2321, and with no consideration of employing the concept of garde under Article 2317, these cases hold that strict liability may extend to persons who harbor dogs through possession and control of the animal.
Significantly, our ruling in Terral also briefly noted the Civil Code’s presumption of ownership of one who possesses a corporeal movable. A domestic animal is corporeal movable property.

In another case from our sister circuit, the fourth circuit, in Graubarth v. French Market Corp., 07-416, p. 4-5 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 664 examining the liability of a custodian of a “thing” under 2317 and 2317.1 noted:

[T]he courts have recognized the reality that custody or garde is a broader concept than ownership and custody or garde may be shared by multiple parties. To determine whether custody or garde is shared, the courts look to the parties’ actions and relationships to the thing causing injury. The test for determining custody or garde is two-fold: 1) whether the person bears such a relationship as to have the right of direction or control over the thing, and 2) what, if any, kind of benefit the person derives from the thing. Gallina, 2003-0331, at p. 5, 859 So.2d at 762, citing Dupree v. City of New Orleans, 99-3651, p. 7 (La.8/31/00), 765 So.2d 1002, 1009.

Thus, whether Defendant is the owner of the dog or not, is not dispositive of whether she is liable to Plaintiff for injuries allegedly caused by the dog which was kept on her property and allowed to wander off her property. Our courts define duty as one’s obligation to conform one’s conduct to that of a reasonable man in like circumstances. See Fox v. Board of Sup’rs of Louisiana State Univ. and Agr. And Mech. College, 576 So.2d 978 (La.1991). The test to determine whether Defendant breached her duty owed to Plaintiff in the management of her property | inis whether she acted as a reasonable person in relation to the probability of injury to others like Plaintiff. See Shelton v. Aetna Cas. and Sur. Co., 334 So.2d 406 (La.1976) and Ladner v. Firemen's Ins. Co. of Newark, 519 So.2d 1198 (La.App. 2 Cir.1988).

Clearly, there remain many unresolved genuine issues of material fact determinative of Defendant’s liability for Plaintiffs injuries. The trial court erred as a matter of law in concluding that if Defendant is not the owner of the dog she can bear no liability to Plaintiff for her injuries caused by a dog, kept on Defendant’s property and allowed to go onto Plaintiffs property causing her injury. Plaintiff has alleged facts, and Defendant is deemed to have admitted facts, which establish multiple possibilities under our law for Defendant’s liability to Plaintiff for her alleged injuries. Summary judgment was entirely inappropriate as there remained genuine issues of material fact in dispute.

For the reasons as stated, we reverse the trial court’s ruling and remand the case for further proceedings in accordance with law. All costs of this appeal are assessed against Defendant.

REVERSED AND REMANDED.

GENOVESE, J., concurs in the result.