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Tauzier v. St. Patrick Parade Commitee of Jefferson1/29/2002
want of even slight care and diligence," "want of that diligence that even careless men are accustomed to exercise," "entire absence of care," "utter disregard of the dictates of prudence," "complete neglect of the rights of others," extreme departure from ordinary care or the want of even scant care"-it is plain that plaintiff failed to present factual support that she will be able to satisfy her evidentiary burden of proof at trial.
Therefore, the trial court did not err in granting summary judgment.
However, we note a defect in the judgment concerning one of the parties. At argument of the motion for summary judgment on June 26, 2001, counsel for the movers advised the court that defendant Mims had died. Counsel for plaintiff stated that he had discussed with defense counsel whether he should substitute Mims' estate in her place as a defendant, but he did not inform the court why he had not effected a substitution of parties.
Upon the death of a litigant, a proper party plaintiff must be substituted to allow the action to continue. La.C.C.P. art. 801; Gibson v. Leson Chevrolet Co., Inc., 94-804 (La.App. 5 Cir. 2/15/95), 652 So. 2d 69, 70. A judgment rendered against a deceased party is an absolute nullity. Akyar v. Lee, 99-806 (La.App. 5 Cir. 1/25/00), 751 So. 2d 411, 412, writ denied, 00-616 (La. 4/20/00), 760 So. 2d 348.
Accordingly, the judgment is null insofar as it concerns Darlene Mims.
Finally, plaintiff-appellant states in her appellate brief that the trial court granted summary judgment in favor of all defendants, "even the Parish of Jefferson who had not even joined in the motion." Although the court's oral ruling from the bench indicated that summary judgment was granted as to all defendants, that misstatement was corrected by the written and signed judgment, which granted summary judgment only as to the Parade Committee, Mims and TIG. The Parish of Jefferson was not party to the motion for summary judgment and the case still remains in its original posture with respect to the Parish.
For the foregoing reasons, the judgment is affirmed with respect to St. Patrick Parade Committee of Jefferson, Inc. and TIG Insurance Company, but it is vacated with respect to Darlene Mims. The matter is remanded for further proceedings. Costs of this appeal are assessed against the appellant.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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