Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lopez v. Bellamare Development LLC

Court of Appeals of Mississippi

August 13, 2019

AGUSTIN MENDEZ LOPEZ, CONSERVATOR OF THE PERSON AND ESTATE OF JUAN MENDEZ APPELLANT
v.
BELLAMARE DEVELOPMENT LLC AND SANDEEP K. SETHI APPELLEES

          DATE OF JUDGMENT: 10/02/2017

          LINCOLN COUNTY CIRCUIT COURT HON. DAVID H. STRONG JR.

          ATTORNEYS FOR APPELLANT: NATHAN HENRY ELMORE BRYAN J. O'CONNOR JR. BRYAN J. O'CONNOR

          ATTORNEYS FOR APPELLEES: DONNA MARIE MEEHAN JUSTIN RONALD GLENN

          BEFORE BARNES, C.J., GREENLEE, TINDELL AND McCARTY, JJ.

          GREENLEE, J.

         ¶1. This is an appeal from the Lincoln County Circuit Court's grant of summary judgment under Mississippi Code Annotated section 11-1-66 (Rev. 2014). Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Bellamare Development LLC is a holding company that was founded in 2005 and is owned by Sandeep K. Sethi. It contracted with Certified Construction Company "to do all the work and provide all the materials, tools, machinery and supervision necessary for the completion of construction" of an 80-unit Holiday Inn in Brookhaven, Mississippi. Several months later, Certified Construction Company subcontracted with Varnell Framing Contractors to perform a portion of that work. The contracted work included rough carpentry, sheathing, roofing, and the installation of windows. To accomplish its obligation, Varnell Framing Contractors hired several laborers, including Juan Mendez.

         ¶3. Anthony Varnell-owner of Varnell Framing Contractors-and Mendez were at the Holiday Inn construction site in June 2012. Mendez was new to the job and had no training, but under Varnell's supervision he went to the building's third floor. Varnell remained on the ground and operated a telehandler that elevated an unsecured plywood box containing tools to the third-floor window where Mendez was located. Then Mendez, wearing a safety harness and lanyard but without an anchor point or other fall-protection system in place, entered the elevated box to collect the tools. This process had been completed without incident by Varnell's employees several times before-in fact, a later Occupational Safety and Health Administration investigation indicated that Varnell "had established a procedure with his employees that the employees would walk up to the upper floors and the first employee at the hoisted box was to enter the box and retrieve the tools."

         ¶4. But this time, the plywood box did not remain on the telehandler forks. It slid from the forks and, with Mendez inside, plummeted to the ground. Mendez fractured his spine and is now a quadriplegic.

         ¶5. Mendez reported the accident to the Mississippi Workers' Compensation Commission in September 2012. A workers' compensation action was filed against Certified Construction Company because Varnell Framing Contractors had let their workers' compensation insurance lapse.[1] He also filed a complaint in the United States District Court for the Southern District of Mississippi asserting diversity jurisdiction, which was voluntarily dismissed. Mendez then filed a complaint and amended complaint in the Lincoln County Circuit Court in July 2014, naming several defendants: Sethi, Bellamare Development, Varnell, Varnell Framing Contractors, Jackie's International, Certified Hospitality Corporation, Puckett Machinery Company, and Specialty Glass & Door Company. Certified Construction Company was not named a defendant in this circuit-court action.

         ¶6. Mendez moved for a default judgment against Varnell and Varnell Framing Contractors in December 2015 because "neither [party] [had] filed an [a]ppearance in this matter." The circuit court granted his motion. Jackie's International, Certified Hospitality Corporation, Puckett Machinery Company, and Specialty Glass & Door Company were all later dismissed from this suit. Only Sethi and Bellamare Development remained as defendants.

         ¶7. After several years of discovery, in August 2017, Sethi and Bellamare Development moved for summary judgment. The circuit court heard oral argument and granted their motion in October 2017. The court, however, did not address the discoverability of confidential documents from Bank First requested by Mendez, which the court had received over one year earlier. Then, in December 2017, the circuit court ruled on the document discovery and denied Mendez's motion for production of the Bank First documents. Mendez moved for reconsideration of summary judgment, which the court also denied.

         ¶8. He now appeals to this Court, arguing that (1) section 11-1-66 immunity does not apply; (2) the circuit court erred when it failed to address Mendez's negligence claims; (3) summary judgment was improper; and (4) the circuit court abused its discretion when it determined that the Bank First records were not discoverable.[2]

         STANDARD OF REVIEW

         ¶9. We review a trial court's grant of summary judgment de novo. Pigg v. Express Hotel Partners LLC, 991 So.2d 1197, 1199 (¶4) (Miss. 2008). "The movant is entitled to summary judgment if there is no genuine issue of material fact." Griffin v. Grenada Youth League, 230 So.3d 1083, 1087 (¶14) (Miss. Ct. App. 2017). "But the mere existence of disputed facts does not preclude summary judgment: 'The focal point of our standard for summary judgment is on material facts,' by which we mean those facts 'that matter in an outcome determinative sense.'" Id. (quoting Simmons v. Thompson Mach. of Miss. Inc., 631 So.2d 798, 801 (Miss. 1994)). "The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact." Id. (quoting Sanders v. Advanced Neuromodulation Sys. Inc., 44 So.3d 960, 965 (¶11) (Miss. 2010)).

         ¶10. "The evidence must be viewed in the light most favorable to the party opposing the motion." Adams v. Hughes, 191 So.3d 1236, 1239 (¶6) (Miss. 2016). Furthermore, "[t]he party opposing the motion must be diligent and, by allegations or denials, must set forth specific facts showing there are genuine issues for trial." Porter v. Grand Casino of Miss. Inc., 181 So.3d 980, 983 (¶4) (Miss. 2016).

         DISCUSSION

         I. Does section 11-1-66 immunity apply?

         ¶11. In its summary-judgment order, the circuit court found "that Bellamare Development, LLC was the owner, occupant, lessee, or managing agent of a construction project to build a Holiday Inn Express . . . ." The court further found that "Sethi was the managing member of Bellamare Development." It also noted that "the owner or occupier is under no duty to protect an independent contractor or its employees against risks arising from or intimately connected with defects of the premises, or of machinery or appliances located thereon, which the contractor has undertaken to repair." The court concluded that because Mendez "was unequivocally an employee of" Varnell Framing and because Varnell "clearly ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.