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Eichelberger v. Sidney11/3/2000
the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Mixon v. Progressive Specialty Co., 29,698 (La. App. 2d Cir. 6/18/97), 697 So. 2d 662.
The burden is on the party seeking summary judgment to establish that there is an absence of factual support for one or more of the essential elements of the adverse party's claims. When a motion for summary judgment has been filed and supported by evidence, however, the adverse party may no longer rely on the mere allegations or denials of his pleadings, but, through affidavits or otherwise, must set forth evidence demonstrating there is a genuine issue for trial. La. C.C.P. art. 967; Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So. 2d 908 (La. 1986); Berzas v. OXY USA Inc., 29,835 (La. App. 2d Cir. 9/24/97), 699 So. 2d 1149. If the nonmoving party then fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden at trial, there is no genuine issue of material fact. La. C.C.P. art. 966; Berzas, supra. Although the burden of proof remains the same under the recent amendment to La. C.C.P. art. 966, summary judgment procedure is now favored to secure the just, speedy and inexpensive determination of all except certain disallowed actions. Acts 1996, 1st Ex. Sess., No. 9.
As a threshold matter, we note that Ms. Eichelberger argues that granting the motion for summary judgment was error because National filed no supporting documentation with the motion. Since no depositions were filed and no affidavits were attached to the motion, Ms. Eichelberger submits that National completely failed to carry its burden. We disagree.
National's motion for summary judgment states that "the pleadings on file in the record hereof and the attachments hereto show that there is no genuine issue as to a material fact and that mover is entitled to judgment as a matter of law." Attached to the motion was the memorandum in support thereof wherein National quoted the facts as alleged in Ms. Eichelberger's petition for damages, stating that " olely for the purpose of the instant Motion for Summary Judgment, National Hair Care assumes that the confrontation which occurred between Eichelberger and Sidney occurred in the manner described by Eichelberger in her Petition for Damages, as quoted above." We find that National's failure to file any supporting affidavits or depositions with its motion for summary judgment was not fatal to the motion for the simple reason that National did not dispute the facts as alleged by Ms. Eichelberger as stated in her petition.
Since National accepted as true the version of events as stated in the petition, our next inquiry is whether or not, in opposition to National's motion, Ms. Eichelberger produced factual support sufficient to survive summary judgment. As previously stated, as the nonmoving party, she must present specific facts showing that material facts are still at issue. In opposing National's motion, Ms. Eichelberger produced a portion of her deposition which substantially supports her version of events as alleged in her petition. Additionally, Ms. Eichelberger testified in her deposition that the VCR and videotapes were in the salon for the entertainment of its clients. Moreover, she testified that it was part of Ms. Sidney's duties as receptionist to assist the beauticians when necessary and to keep the customers satisfied. According to Ms. Eichelberger, this would include playing videotapes to entertain the children of clients who were having their hair done i
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