Full Opinion (html_with_citations)

      CIRCLE, LLC                                  *        NO. 2022-CA-0381

      VERSUS                                       *        COURT OF APPEAL

      M&L ENGINE, L.L.C.                           *        FOURTH CIRCUIT

                                                   *        STATE OF LOUISIANA

                                                   *

                                                *
                                             *******



TFL   LOVE, C.J., DISSENTS AND ASSIGNS REASONS

            Although summary judgments are favored, in Marziale v. New Orleans

      Police Dept. C.C.M.S.I., 12-1713, p. 3 (La. App. 4 Cir. 9/18/13),
124 So.3d 1152, 1154
, this Court explained whether an issue is genuine for purposes of summary

      judgment as follows:

             However, “[i]n determining whether an issue is genuine, a court
            should not consider the merits, make credibility determinations,
            evaluate testimony or weigh evidence.” Suire v. Lafayette City–Parish
            Consol. Gov’t, 04–1459; 04–1460; 04–1466; p. 11 (La. 4/12/05),
907 So.2d 37, 48
. A fact is genuine and material if it “would matter at a
            trial on the merits.”
Id.
 “Any doubt as to a dispute regarding a
            material issue of fact must be resolved against granting the motion
            and in favor of trial on the merits.”
Id.

            In the present matter, I find that resolution of Appellants’ assigned errors—

      namely, that M&L’s alleged breaches of the original contract between the parties

      precludes its right to any recovery, and Appellants’ contention that the parties

      orally amended the original contract on January 27, 2020, to suspend Appellants’

      payment of the remaining $35,000.00 owed on the original contract— requires this

      Court to consider the merits, make credibility determinations, and weigh the

      evidence, functions specifically proscribed in
Marziale, supra,
 in determining

      whether material facts remain that favor or preclude summary judgment relief. In

      particular, the parties’ dispute over the modification of the original contract at the

      January 27, 2020 meeting presents a genuine issue of material fact that is germane
to M&L’s motion for summary judgment. Appellants aver that the fact of the

January 27, 2020 meeting itself and various e-mails submitted to M&L constitute

general corroborating evidence to support the contract’s amendment. On the other

hand, M&L acknowledges that a January 27, 2020 meeting occurred, however, its

representative only recalled that Appellants mentioned equipment costs due to the

late delivery of the meeting. The majority notes that the testimony of M&L’s

representative “did not negate or corroborate the alleged agreement’s existence.”

However, I find resolution of the conflict between Appellants’ contention that the

contract was amended and M&L’s denial and/or lack of recollection of an

amendment hinges on a credibility determination reserved for the fact finder at the

trial on the merits, not by an appellate court on summary judgment review. See

Stobart v. State through Dep’t of Transp. & Dev.,
617 So.2d 880, 882
 (La. 1993).1

       Moreover, the trial on the merits of Appellants’ action against M&L is

scheduled for a jury trial on January 17, 2023. The issues and evidence underlying

M&L’s motion for summary judgment and its related reconventional and third-

party demands are so intertwined with the merits of Appellants’ underlying action

that the interests of judicial economy would be best served by trying these claims

in one proceeding and referring the motion for summary judgment to trial on the

merits. See Short v. Griffin, 95-0680, p. 3 (La. 6/16/95),
656 So.2d 635,636
.

       Based on the foregoing, I find that genuine issues of material fact remain

that preclude summary judgment. Accordingly, I respectfully dissent and would

reverse the trial court’s grant of summary judgment in favor of M&L.




1 In the case sub judice, the trial court did not address Appellants’ claim that the original contract

was amended. Specifically, the trial court made no determination as to the sufficiency of
Appellants’ corroborating evidence in support of the amendment or weighed the credibility of
the parties as it pertained to the existence of any amended contract.