STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2023 CA 0839 DANIELLE ANN RAY, INDIVIDUALY AND ON BEHALF OF HER

MINOR CHILD, HUNTER WAYNE GARNER VERSUS y LYNX PRODUCTION SERVICES, INC. CONSOLIDATED WITH J'r NO. 2023 CA 0840

BRITTINI GARNER AND ANGELA SHARPE ON BEHALF OF THE

MINOR CHILD, BRIANNE GARNER

VERSUS SPECIALTY BOAT RENTALS, LLC, SCULLY' S ALUMINUM BOATS, INC., SCULLY' S ALUMINUM CRAFTS, INC., GULF COAST CHEMICAL, LLC,AND AMERICAN INTERSTATE INSURANCE CO. CONSOLIDATED WITH NO. 2023 CA 0841 DANIELLE ANN RAY, INDIVIDUALLY AND OBO HER MINOR CHILD, HUNTER WAYNE GARNER

VERSUS SPECIALTY BOAT RENTALS, LLC, SCULLY ALUMINUM BOATS, INC. SCULLY ALUMINIMUM CRAFTS, INC. AND GULF COAST CHEMICAL, LLC Judgment Rendered. 

## FEB2 3 2024 Appealed from the 32nd Judicial District Court In and for the Parish ofTerrebonne

State of Louisiana Case No. 168971 c/w 170285, c/w 171502 

### The Honorable Timothy C. Ellender,Jr.,Judge PresidingDominick F. Impastato, III



### Anthony J. Impastato Vincent P. Impastato New Orleans, Louisiana

and Tanner Magee Houma, Louisiana David M. Thorguson 

### Morgan City, Louisiana

and Lloyd T. Bourgeois, Jr. Bayou Vista, Louisiana Counsel for Plaintiffs/Appellants Brittini and Brianne Garner

Counsel for Defendants/Appellees 

### Scully'sAluminum Boats, Inc. and 

### Scully's Metal Fabrication, Inc.

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.

2THERIOT,J.



### Brittini Garner and Brianne Garner appeal the 32"d Judicial District Court's 

### February 9, 2023 judgment granting Scully's Aluminum Boats, Inc. and Scully's Metal Fabrication, Inc.'s motion forpartial summaryjudgment. Forthe following reasons,we affirm.

FACTS AND PROCEDURAL HISTORY 

### On February 9, 2013, David Wayne Garner (" Mr. Garner") was aboard a 

### vessel assigned to him by his employer, Lynx Production Services, Inc. (" Lynx"), in the navigable waters offthe coast ofTerrebonne Parish, Louisiana. The vessel, 

### which was allegedly owned by Specialty Boat Rentals, LLC, capsized and became submerged underwater, resulting in Mr.Garner'sdeath. 

### At the time of his passing, Mr. Garner had three children: Brittini Garner, Brianne Garner, and Hunter Garner.' This appeal involves only Appellants, 

### Brittini and Brianne Garner, and Appellees, Scully's Aluminum Boats, Inc. and Scully's Metal Fabrication, Inc. (collectively, "

### Scully' s" ). 2 

### Scully's allegedly sold the subjectvessel to Specialty Boat Rentals, LLC twoyears priorto the accident. On March 1, 2013, 

### Danielle Ann Ray filed a petition for damages individually and on behalf of her minor child, Hunter, which named Lynx as a defendant and contained state law claims and federal claims, 

### including claims based upon the Jones Act. On August 23, 2013, Brittini and Angela Sharpe, 

### individually and on behalf of then - minor child Brianne, filed a petition for damages against several defendants, 

### including Scully's. This petition was also 

### brought pursuant to the Jones Act and specifically alleged that Mr. Garner was a Jones Act seaman. 

### On February 7, 2014, Danielle Ann Ray filed another petition I When these legal proceedings began, Brianne and Hunter were underthe age of majority. On July 26, 2018, following a motion to substitute filed by Lynx and after Brianne reached the age ofmajority, the trial court ordered Brianne to appear and substitute herself as a plaintiff in this action. It is unclear from the record whether Hunter Garner has reached the age ofmajority. 2 Scully's Metal Fabrication, Inc. was initially misnamed as Scully's Aluminum Crafts, Inc. The plaintiffs in this matterfiled athird amended petition substitutingthe former forthe latter in September2018.

### for damages individually and on behalfofHunter. This petition, which contained



### negligence claims, also named Scully's as one ofseveral defendants. These three matters were consolidated on June 9, 2014. 

## In February 2016, the plaintiffs in this now - consolidated matter filed a first amended petition for damages wherein they asserted claims under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 (" LHWCA"). The 

### plaintiffs specifically alleged in their first amended petition for damages that Mr. Garner " could be classified as a longshoreman" under the LHWCA. The first amended petition also re -averred and realleged the allegations of the original petition. 

### Accordingly, at this stage in the proceedings, the plaintiffs had alleged that Mr.Garner was a Jones Act seaman or a longshoreman. 

### In June 2017, the plaintiffs filed a second amended petition wherein they asserted additional claims against Scully's based on the Louisiana Products Liability Act. This petition also re - averred and realleged the allegations of the original petition. 

### On September 4, 2018, Scully's answered the plaintiffs' original petition as 

### amended by the first amended petition and second amended petition. Relevantly, 

### Scully's admitted the plaintiffs' allegations relating to the Jones Act. 

### Scully's further admitted both parties' 

### longshoreman allegations insofar as they alleged liability by Lynx, 

### denied the amended petition insofar as it alleged liability by Scully's, and denied the remaining allegations for lack ofsufficient information to 

### justify a belieftherein. On November2, 2022, Scully's filed a motion for partial summaryjudgment 

### wherein it moved to dismiss all claims for nonpecuniary damages asserted by Brittini and Brianne Garner (" the Garners") against 

### Scully's, 

### including all 

### wrongful death and survival claims, pursuant to Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 ( 1996). 

### Scully's argued

4

### that the Garners had judicially confessed that Mr. Garner was either a Jones Act



### seaman or a longshoreman covered by the LHWCA, thus making him a seafarer under Yamaha. 

### Scully's argued that, as a result, the Garners could not assert 

### claims for nonpecuniary damages, nor could they supplement their general maritime wrongful death claims with Louisiana wrongful death or survival claims. 

### Scully's specifically sought to dismiss any claims for nonpecuniary damages and any state law claims filed by the Garners, highlighting their repeated allegations that Mr. Garner was either Jones Act seaman or a longshoreman at the time of his death.' 

### Scully's further asserted that it had admitted to Mr. Garner's Jones Act or LHWCA status in its previously - filed answer. 

### A hearing on Scully's motion for partial summary judgment was held on January 19, 2023. 

### At the conclusion ofthe hearing, the trial court ruled that the Garners had judicially confessed that Mr. Garner was a Jones Act seaman. 

### Specifically, the trial court noted that the Garners alleged that Mr. Garner was a seaman or a longshoreman for the entirety of the litigation, through multiple amendments to petitions and answers. 

### In ajudgment signed on February 9, 2023, 

### thetrial courtgranted Scully's motion forpartial summaryjudgment and dismissed

with prejudice " 

### all claims for non - pecuniary damages, including all wrongful - death and survival claims underthe Louisiana Civil Code." 

### This appeal bythe Garners followed. ASSIGNMENTS OF ERROR 

### The Garners assertthe following as error: 1) 

### The trial court erred in concluding that ajudicial confession was made. 

### 2) The trial court erred by failing to find that anyjudicial confession was withdrawn by an erroroffact.
3 Danielle Ann Ray,on behalfofHunter, filed a motion with this Court indicatingthatshe had settled all ofHunter's claims in this matter in 2018 and is no longer a party to this litigation. Although the record contains evidence of settlements with other defendants, there is no proof in the record of a settlement between Danielle Ann Ray, on behalfofHunter, and Scully' s. 53) 

### The trial court erred by concluding that a judicial confession

precluded the weighing of other evidence admitted on summary judgment. 4) 

### The trial court erred by concluding that a judicial confession precluded other evidence on the issue of David Garner' s status when there was no evidence ofdetrimental reliance provided. 5) 

### The trial court erred by denying the Garners' objections to 

### Scully's exhibits submitted on summaryjudgment. 6) 

### The trial court erred by failing to find that there were genuine 

### issues of material fact precluding the granting ofScully's motion for partial summaryjudgment. STANDARD OF REVIEW4 

### Summary Judgment 

### Summaryjudgment procedure is favored and " is designed to secure thejust, 

### speedy, and inexpensive determination ofevery action .... and shall be construed to accomplish these ends." La. Code Civ. P. art. 966(A)(2). 

### In reviewing the trial court's decision on a motion for summaryjudgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Bass v. Disa Glob. Sols., Inc., 2019- 

### 1145 (La. App. 1 Cir. 6/12/20), 305 So.3d 903, 906, writ denied, 2020-01025 ( La. 11/ 4/20), 303 So.3d 651. 

### After an opportunity 

### for adequate discovery, a motion 

### for summary 

### judgment shall be granted ifthe motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). 

### The only 

### documents that may be filed in support of or in opposition to the motion are

4 We note thatthe motion forpartial summaryjudgment at issue in this appeal was filed and decided under La.Code Civ. P. art. 966 prior to its amendment by 2023 La. Acts No. 317, § I, and 2023 La. Acts No. 368, § 1, which became effective on August 1, 2023. This court has determined that the 2023 amendments to La. Code Civ. P. art. 966, which expanded the exclusive list of documents that are considered competent evidence in support of or in opposition to a motion forsummaryjudgment and changed the duties ofparties in supporting and opposing motions for summaryjudgment, are substantive and therefore cannot be applied retroactively. See Ricketson v. McKenzie, 2023-0314, p. 7-9 (La. App. 1 Cir. 10/4/23), _ So.3d _, _; see also La. Civ. Code. art. 6 (" in the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unlessthere is a legislative expression tothe contrary."). 1. 1pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified

medical records, written stipulations, and admissions. La. Code Civ. P. art. 966(A)(4); Bass, 305 So.3d at 906. 

### The mover bears the burden of proving that he is entitled to summary judgment. However, ifthe mover will not bear the burden of proof at trial on the subject matter of the motion, 

### he need only demonstrate the absence of factual support for one or more essential elements of his opponent' s claim, action, or defense. La. Code Civ. P. art. art. 966(D)( 1). 

### Ifthe moving party points out that there is an absence of factual support for one or more elements essential to the 

### adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)( 1); Bass, 305 So.3d at 906. 

### In ruling on a motion for summaryjudgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue oftriable fact. A " genuine" issue is a triable issue, which means that an issue is genuine if reasonable persons 

### could disagree; ifon the state ofthe evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. A fact is " material" when 

### its existence or nonexistence may be essential to plaintiffs cause ofaction under the applicable theory ofrecovery. Bass, 305 So.3d at 906-07. The Jones Act and LHWCA The Jones Act grants " a seaman" a cause of action against his employer in 

### negligence; only seamen may sue thereunder. In contrast, Congress enacted the 

### LHWCA to establish a federal compensation remedy for injuries to certain landbased workers occurring on navigable waters. Generally, coverage under the LHWCA excluded " a master or member of a crew of any vessel." The LHWCA,

7therefore, limits the definition of "seaman" in the Jones Act so as " to confine the 

### benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery ... only such rights to 

### compensation asare given bythe LHWCA." Thus,the seaman's remedy is limited to rights granted bythe Jones Act,and rights granted to other maritime workers are provided exclusively by the LHWCA. The two remedies are mutually exclusive. Jackson v. Chem Carriers, L.L.C., 2022-0043 ( 

### La.App. 1 Cir. 11/4/22), 356 So.3d 403, 414, writ denied, 2022-01770 ( La. 2/ 14/23), 355 So.3d 618, citing Sanchez v. 

### Smart Fabricators ofTexas, L.L.C.,997 F.3d 564, 568-69 (5th Cir.2021).

DISCUSSIONS Assignment of Error #5 

### The Garners argue that the trial court erred by denying their objections to Scully' s exhibits submitted on summaryjudgment. Specifically, the Garners assert 

### that the pleadings attached to Scully's motion for partial summaryjudgment were

not admissible. 

### When this matter was decided by the trial court, La. Code Civ. P. art. 966 provided in pertinent part:

A)(4) 

### The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, 

### written stipulations, and admissions. The court may permit documents 

### to be filed in any electronically stored format authorized by court rules orapproved bythe clerkofthe court. ( Emphasis added.) 

### Scully's attachments to its motion for partial summary judgment, which are discussed in more detail below, consist of a petition, an amended petition, and an 

### answer. Because petitions and answers are types ofpleadings, Scully's attachments 

### clearly constitute documents which may be filed in support of a motion for summaryjudgment. See La. Code Civ. P. art. 852; see also La. Code Civ. P. art. 966(A)(4). This assignment oferror lacks merit. s Forease ofunderstanding,we addressAppellants' assignments oferrorout oforder. 8Assignment of Error #I



### The Garners argue that the trial court erred in concluding that a judicial

confession was made. 

### Ajudicial confession is a declaration made by a party in a 

### judicial proceeding. That confession constitutes full proof against the party who made it. La. Civ. Code art. 1853. 

### A judicial confession is a party's explicit 

### admission ofan adverse factual element and has the effect ofwaiving evidence as to the subject of the admission and of withdrawing the subject matter of the confession from issue. Cichirillo v. Avondale Indus., Inc., 2004-2894 ( La. 11/ 29/05), 917 So.2d 424, 429. 

### An admission in a pleading falls within the scope 

### ofajudicial confession and is full proofagainst the party making it. A judicial 

### confession must be explicit and not merely implied. Cola v. Cola, 2019-0530 ( La. 

### App. 1 Cir. 12/27/19), 294 So.3d 6, 11, writ denied, 2020-00344 (La. 6/3/20), 296 So.3d 1068; see also La. Civ. Code art. 1853. 

### Scully's attached the following to its motion for partial summaryjudgment: 1) the Garners' original petition for damages filed on August 23, 2013; ( 2) the Garners' 

### first amended petition for damages filed on February 10, 2016; and ( 3) 

### Scully's answer to the Garners' original petitions for damage as amended by the first amended petition and second amended petition filed on September 11, 2018. 

### In theiroriginal petition,which included Scully's as a defendant,the Garners alleged that Mr. Garner was a Jones Act seaman. In their first amended petition, the plaintiffs re -

averred and realleged all allegations from their original petition. The plaintiffs also amended their respective petitions to allege that Mr. Garner could be classified as a longshoreman. 

### In its September 11, 2018 answer, Scully's admitted the Garners' allegations relating to the Jones Act, including their allegation that Mr. Garner was a seaman.

6 The second amended petition, filed on June 14, 2017, was not attached to Scully's motion for partial summary judgment.

0

### Scully's further admitted both parties' longshoreman allegations insofar as they



### alleged liability by Lynx, denied the amended petition as it alleged liability by Scully's, 

### and denied remaining allegations for lack of sufficient information to justifya belieftherein. 

### Based on the attachments to Scully's motion for partial summaryjudgment,
we find the Garners' repeated allegations that Mr. Garner was a seaman or a 

### longshoreman fall within the scope of a judicial confession and constitute full proof against the Garners. See Cola, 294 So.3d at 11. Their judicial confession waives evidence as to the subject of the admission and withdraws the subject matter of the confession from issue. See Cichirillo, 917 So.2d at 429. The trial 

### court properly concluded that ajudicial confession was made. This assignment of

error lacks merit. Assignment of Error #4 

### The Garners argue that the trial court erred by concluding that a judicial confession precluded other evidence on the issue of David Garner' s status when there was no evidence of detrimental reliance provided. Relevant to the instant 

### matter is the established rule that a party who has made such an admission in a 

### previous suit is not barred from denying the facts contained in that admission in a subsequent suit,unless the adverse party has been prejudiced by his reliance upon that admission. Mayo v. Hutchison, 2016- 1642 ( 

### La. App. 1 Cir. 9/27/ 17), 232 So.3d 567, 573; see also Alexis v. Metro. Life Ins. Co., 604 So.2d 581, 582 ( La. 1992).The Garners cite Alexis, 604 So.2d 581 in support of their assertion that 

### Scully's must assert and prove detrimental reliance. However, unlike the alleged admission in Alexis, the Garners' admissions were made in the same, consolidated

suit. 

### We further notethatthe Garners' admissions were made repeatedly in several different pleadings over a five-year period and have remained unchanged since at

10least 2018. 

### We find that the trial court correctly concluded that a judicial

admission occurred. This assignment oferror lacks merit. Assip- nment of Error #2 

### The Garners argue thatthe trial courterred byfailing to findthatanyjudicial confession was withdrawn by an error offact. A judicial confession is indivisible 

### and it may be revoked only on the ground oferroroffact. La. Civ. Code art. 1853. The Garners attached portions of the deposition of Daniel Garner, Mr. Garner's brother who worked alongside Mr. Garner at Lynx, to their opposition to 

### Scully's motion for partial summary judgment. In the attached portions of the 

### deposition, Daniel Garner describes Mr.Garner'sjob position working for Lynx as

a " pumper" or " gauger."' The Garners assert that Daniel Garner's deposition 

### testimony contradicts their own statements of fact in the original and amended 

### petitions relating to Mr.Garner's status as aseaman or longshoreman. 

### Daniel Garner's deposition was taken on February 5, 2016. The Garners amended their petition twice after the deposition was taken —

### first on February 10, 2016 and again on September 6, 2018. In each ofthese amendments, the Garners 

### specifically re -

averred and realleged all allegations from their original petition as if copied in extensor. 

### Accordingly, despite the Garners' argument that Daniel Garner' s deposition contradicts the allegations in their original petition and amended petition, the Garners reiterated their claim that Mr. Garner was a Jones 

### Act seaman on at least two separate occasions afterthe deposition by re - averring and realleging all allegations from their original petition. The Garners further added their longshoreman claims ( and reiterated same) after the deposition took place. The Garners did not attempt to amend their petition to remove that claim 

### until the hearing atthe motion forpartial summaryjudgment, despite having ample time to do so. 

### Considering their failure to remove the purported erroneous According to Daniel Garner's deposition testimony, a " contract gauger takes care ofan oil and gas facility for an oil and gas producer" and makes surethe facility's equipment is " functioning properly."
11

### confession in the years following the 2016 deposition,theirargument rings hollow
at this stage ofthese proceedings. This assignment oferror lacks merit. Assignment of Error #3 

### The Garners argue that the trial court erred by concluding that a judicial confession precluded the weighing of other evidence ( namely, Daniel Garner' s 

### deposition testimony) admitted on summaryjudgment. The Garners cite Collins 

### v. Hill,52,457 (La.App. 2 Cir. 2/27/19), 265 So.3d 1202, 1209 in support oftheir 

### assertion that,when there is otherevidence in the record creating disputed issues of fact despite a judicial admission or confession, 

### it is proper to deny summary judgment. However, Collins is distinguishable from the present scenario because 

### of other genuine issues of material fact that had not been judicially confessed. Regarding the issue of material fact that was judicially confessed in Collins, the Second Circuit Court of Appeal noted that the dispute over that particular fact ( in that case, whether an agreement was a sale or a lease) was ended. Collins, 265 So.3d at 1208-09. 

### As stated above, ajudicial confession is a party's explicit admission of an adverse factual element and has the effect ofwaiving evidence as to the subject of the admission and ofwithdrawing the subject matter ofthe confession from issue. Cichirillo, 917 So.2d at 429. 

### By repeatedly asserting that Mr.Garnerwas a Jones Act seaman or longshoreman, the Garners have waived evidence as to the subject ofthat admission and withdrawn that subject matter (i.e. his status as a Jones Act
seaman or longshoreman) from issue. This assignment oferror lacks merit. Assignment of Error #6 

### The Garners argue thatthe trial court erred by failing to find that there were 

### genuine issues of material fact precluding the granting of Scully's motion for partial summaryjudgment. Considering our finding that ajudicial confession was made, we reiterate that the Garners' judicial confession waived evidence as to the

12

### subject of the admission and withdrew the subject matter of the confession from

issue. See Cichirillo, 917 So.2d at 429. Despite the Garners' argument to the contrary, we decline to find that the trial court's admission of evidence, as 

## authorized by La. Code Civ. P. art 966, creates a genuine issue of material fact when that evidence relates to a fact that has already been judicially admitted. 

### Therefore, forthe purposes ofScully's motion forpartial summaryjudgment,there 

### were no remaining issues of material fact as to whether the Garners judicially confessed that Mr. Garner was a Jones Act seaman or longshoreman. 

### Scully's motion for partial summaryjudgment was specifically intended to dismiss all claims for non - pecuniary damages asserted against Scully's by the Garners, 

### including all wrongful death and survival claims under the Louisiana Civil Code. 

### According to Scully's, Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 ( 

### 1996) is the controlling Supreme Court opinion. In Yahama, the Supreme Court considered whether federal maritime claims 

### for wrongful death supply the exclusive remedy in cases involving the deaths of nonseafarers in territorial waters, thus precluding the application of state laws. Yamaha, 516 U.S. at 205. The Supreme Court defined " nonseafarers" to mean 

### persons who are neither seamen covered by the Jones Act, nor longshore workers covered by LHWCA. Id. at 205, n. 2. 

### The Supreme Court ultimately concluded that the damages available for the death of a nonseafarer in territorial waters are 

### properly governed by state law. Id.at216. However, in the event ofthe death ofa seafarer in territorial waters, federal maritime law ( such as the Jones Act and LHWCA) applies. Id.at 202, 215. 

### Accordingly, the question of whether Mr. Garner was a seaman or longshoreman ( in other words, a seafarer) determines whether the Garners' claims 

### are governed exclusively by federal maritime law orwhetherstate statutes may be

13applied. 

### Having found that the Garnersjudicially confessed that Mr. Garner is a

seaman or longshoreman, we find thatthe Garners' claims are governed by federal maritime law. As a result, their state law claims for wrongful death and survival damages must be dismissed. Further, 

### nonpecuniary damages cannot be recovered for the death of a longshoreman injured in territorial waters. Welch v. Fugro Geosciences, Inc., 2000- 1231 ( 

### La. App. 1 Cir. 11/21/01), 804 So.2d 710, 717. The Supreme Court 

### held in Miles v. Apex Marine Corp., 498 U.S. 19, 32-33, 111 S.Ct. 317, 326, 112 L.Ed.2d 275 ( 1990) 

### that the Jones Act limits recovery to pecuniary loss. Accordingly, regardless ofwhether Mr. Garner was a seaman or a longshoreman, 

### the Garners' judicial confession bars any recovery for nonpecuniary damages and theirclaims fornon -

pecuniary damages must be dismissed. 

### Considering the foregoing, the trial court correctly found that there are no genuine issues ofmaterial fact as it pertains to those claims. The Garners' state law claims for wrongful death and survival damages, as well as the Garners' claims for 

### nonpecuniary damages, were properly dismissed. This assignment of error lacks

merit. DECREE 

### For the above and foregoing reasons, the 32nd Judicial District Court' s 

### February 9, 2023judgment on Scully's Aluminum Boats, Inc. and Scully's Metal 

### Fabrication, Inc.'s Motion for Partial SummaryJudgment is affirmed. Costs ofthis appeal are assessed to Appellants, Brittini Garner and Brianne Garner. AFFIRMED.

14STATE OF LOUISIANA FIRST CIRCUIT NO. 2023 CA 0839 

### DANIELLE ANN RAY, INDIVIDUALY AND ON BEHALF OF HER

MINOR CHILD, HUNTER WAYNE GARNER VERSUS LYNX PRODUCTION SERVICES, INC.

CONSOLIDATED WITH NO. 2023 CA 0840 BRITTINI GARNER AND ANGELA SHARPE ON BEHALF OF THE

MINOR CHILD, BRIANNE GARNER

VERSUS SPECIALTY BOAT RENTALS, LLC, SCULLY' S ALUMINUM BOATS, INC., SCULLY' S ALUMINUM CRAFTS, INC., GULF COAST CHEMICAL, LLC,AND AMERICAN INTERSTATE INSURANCE CO. CONSOLIDATED WITH NO. 2023 CA 0841 DANIELLE ANN RAY, INDIVIDUALLY AND OBO HER MINOR CHILD, HUNTER WAYNE GARNER

VERSUS SPECIALTY BOAT RENTALS, LLC, SCULLY ALUMINUM BOATS, INC. SCULLY ALUMINIMUM CRAFTS, INC. AND GULF COAST CHEMICAL, LLC. ENZATO, J.,

### dissenting. WY 

### I respectfully disagree with the majority and find merit in the Garners' assignment oferror no. 4. 

### The Garners correctlyassertthat Scully's failedto show that it relied on the Garners' admission to its detriment. Louisiana jurisprudence 

### establishesthatapartyseekingto provethatanotherpartymadeajudicial confession must show reliance to its detriment, even when the alleged admission was made in 

### the same proceeding. See Craft o/b/o Craft v. Ogunbor, 2023-0084 ( La. App. 1stCir. 11/ 9/23), writ denied, 2023-01599 ( La. 2/6/24); State, 

### Department of

Transportation & Development v. Restructure Partners, L.L.C, 2007- 1745 ( La. 

### App. 1st Cir. 3/26/08), 985 So.2d 212, 229, writ denied, 2008- 1269 ( La. 9/19/08), 992 So.2d 937; 

### and Macev. Turner,2018-40 (La.App.3d Cir.7/18/ 18), 2018 WL 3479226, *4 (unpublished). Therefore, 

### I find that Scully's had the burden of proving reliance to its detriment. 

### Because Scully's offered no evidence to establish this, I find, on ourde

novo review, 

### that Scully's failed to satisfy its summaryjudgment burden ofproof. 

### I would reverse the judgment, finding the trial court erred by granting Scully's motion forpartial summaryjudgment.

OA