Judgment rendered August 14, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 52,820-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
CATHERINE J. ESTIS, SAMUEL Plaintiffs-Appellants C. ESTIS, AND THUY P. ESTIS
versus
CLIFTON L. MILLS, KIMBERLY Defendants-Appellees M. MILLS, TWIN STALKS, INC., COLE MILLS PLANTING, INC., LITTLE ANGOLA PAYROLL PARTNERSHIP, AND CLAK, INC.
Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 45,956-B
Honorable Will R. Barham, Judge
BREAZEALE, SACHSE & WILSON, LLP Counsel for Appellants By: Steven B. Loeb John T. Andrishok Jacob E. Roussel
COTTON, BOLTON, HOYCHICK & Counsel for Appellees & DOUGHTY, L.L.P. By: John B. Hoychick
Before MOORE, PITMAN, and THOMPSON, JJ.
PITMAN, J., concurs in the result. THOMPSON, J.
This matter arises from the killing of a ten month old German
Shepherd puppy for which defendants allege immunity under the provisions
of La. R.S. 3:2654, as defendants assert the puppy was harassing his horses
when he shot and killed it. Plaintiffs, Catherine Estis, Samuel Estis, and
Thuy Estis (hereinafter “Plaintiffs”), appeal the trial court’s judgment
granting the motion for summary judgment filed by defendants, Clifton and
Kimberly Mills (hereinafter “Defendants”), asserting there remain genuine
issues of material fact and that Defendants waived any immunity by their
failing to affirmatively plead such in their answer or any subsequent
pleadings. For the reasons set forth below, we reverse and remand for
further proceedings.
FACTS AND PROCEDURAL HISTORY
On September 11, 2017, Plaintiffs filed suit in the 5th Judicial District
Court seeking damages arising out of the shooting, killing, and disposal of
their ten-month-old German Shepherd puppy, Bella. Specifically, Plaintiffs
allege that Defendant Clifton Mills shot the German Shepherd puppy, did
not disclose to them the dog had been shot, and dumped her body over ten
miles away in Bayou Lafourche. As a matter of procedural history of this
case but not currently before this Court, Plaintiffs also sought injunctive
relief claiming that Defendants were operating commercial activities on their
property in violation of property restrictions which limit the use of
Defendants’ property to residential purposes.
An exception of prescription as to the property restrictions and an
answer to all allegations were filed by Defendants on October 16, 2017. On January 26, 2018, the trial court granted the exception of prescription filed
by Defendants and an exception of no cause of action as to the other
defendants,1 resulting in the dismissal of Plaintiffs’ claims for property
restriction violations. The dismissal of those claims is not at issue in this
appeal.
On June 28, 2018, the Defendants filed a motion for summary
judgment. Arguments on the motion were heard on October 1, 2018, and the
trial court took the arguments of the parties under advisement. On
December 6, 2018, the trial court issued its judgment granting summary
judgment in favor of Defendants. There were no oral or written reasons for
judgment given by the trial court in support of judgment. Plaintiffs appeal
the trial court’s judgment.
DISCUSSION
Immunity is afforded to anyone killing a dog under the specific and
limited circumstances set forth under La. R.S. 3:2654, which provides:
Any person finding any dog not on the premises of its owner, harborer, or possessor, which is harassing, wounding, or killing livestock, may, at the time of finding the dog, kill him, and the owner shall not be able to sustain any action for damages against the person killing the dog.
The trial court granted the motion for summary judgment filed by
Defendants. In their motion for summary judgment, Defendants asserted
they fell within the immunity afforded by La. R.S. 3:2654 as it was alleged
the puppy was shot while harassing the horses owned by Defendants.
Plaintiffs argue the immunity afforded by La. R.S. 3:2654 must have been
1 In Plaintiffs’ petition, other named Defendants include Twin Stalks, Inc., Cole Mills Planting, Inc., Little Angola Payroll Partnership, and Clark, Inc. The aforementioned parties have since been dismissed from the suit.
2 affirmatively pled by Defendants and that any such immunity had been
waived by failing to assert the affirmative defense in either the original
answer or any subsequent pleading. As such, Plaintiffs contend in the
absence of the immunity protections asserted by Defendants the motion for
summary judgment could not otherwise have been granted and therefore
should be reversed. The Court agrees.
Plaintiffs contend that La. R.S. 3:2654 is an immunity statute by
comparing La. R.S. 3:2773(D), which provides that “[a]ny citizen or officer
may kill any dangerous or vicious dog.” Accordingly, the purpose of La.
R.S. 3:2773(D) is to provide “statutory immunity.” Hebert v. Broussard,
04-485 (La. App. 3 Cir. 11/10/04), 886 So. 2d 666, 670. Thus, Plaintiffs
claim that Defendants were barred from raising La. R.S. 3:2654 as a basis
for summary judgment
Immunity is an affirmative defense that must be specifically pleaded
by a defendant or it is deemed waived. Moresi v. State Through Dept. of
Wildlife & Fisheries, 90-0205 (La. 09/06/00), 567 So. 2d 1081, 1086; Walls
v. Am. Optical Corp., 98-0455 (La. 09/08/99), 740 So. 2d 1262, 1267. The
record does not include any request by Defendants to amend their pleadings
to assert La. R.S. 3:2654 as an affirmative defense. During oral arguments,
Defendants’ counsel conceded that he could have added the affirmative
defense set forth in La. R.S. 3:2654 but thought that he had pleaded enough
to “put them on notice . . . [and] at that point I did not know the statute
existed.”
La. C.C.P. art. 1005 requires that the answer set forth matters
constituting an affirmative defense. An affirmative defense is a defense to
3 the action which will have the effect of defeating plaintiff’s demand on its
merits. Webster v. Rushing, 316 So. 2d 111, 114 (La. 1975); Shrader v. Life
General Sec. Ins. Co., 588 So. 2d 1309, 1314 (La. App. 2 Cir. 1991), writ
denied, 592 So. 2d 1317 (La. 1992). Affirmative defenses must be
specifically pleaded. La. C.C.P. arts. 1003, 1005, as noted by this Court in
Cooper v. Borden, Inc., 30,292 (La. App. 2 Cir. 02/25/98), 709 So. 2d 878,
881 (a defendant must specifically plead affirmative defenses in its answer).
The purpose of the requirement for pleading an affirmative defense is to give
fair and adequate notice of the nature of the defense so that the plaintiff is
not surprised. Webster, supra at 114.
Defendants contend that La. R.S. 3:2654 is a negative defense rather
than an affirmative defense. An affirmative defense is distinguishable from
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Judgment rendered August 14, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 52,820-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
CATHERINE J. ESTIS, SAMUEL Plaintiffs-Appellants C. ESTIS, AND THUY P. ESTIS
versus
CLIFTON L. MILLS, KIMBERLY Defendants-Appellees M. MILLS, TWIN STALKS, INC., COLE MILLS PLANTING, INC., LITTLE ANGOLA PAYROLL PARTNERSHIP, AND CLAK, INC.
Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 45,956-B
Honorable Will R. Barham, Judge
BREAZEALE, SACHSE & WILSON, LLP Counsel for Appellants By: Steven B. Loeb John T. Andrishok Jacob E. Roussel
COTTON, BOLTON, HOYCHICK & Counsel for Appellees & DOUGHTY, L.L.P. By: John B. Hoychick
Before MOORE, PITMAN, and THOMPSON, JJ.
PITMAN, J., concurs in the result. THOMPSON, J.
This matter arises from the killing of a ten month old German
Shepherd puppy for which defendants allege immunity under the provisions
of La. R.S. 3:2654, as defendants assert the puppy was harassing his horses
when he shot and killed it. Plaintiffs, Catherine Estis, Samuel Estis, and
Thuy Estis (hereinafter “Plaintiffs”), appeal the trial court’s judgment
granting the motion for summary judgment filed by defendants, Clifton and
Kimberly Mills (hereinafter “Defendants”), asserting there remain genuine
issues of material fact and that Defendants waived any immunity by their
failing to affirmatively plead such in their answer or any subsequent
pleadings. For the reasons set forth below, we reverse and remand for
further proceedings.
FACTS AND PROCEDURAL HISTORY
On September 11, 2017, Plaintiffs filed suit in the 5th Judicial District
Court seeking damages arising out of the shooting, killing, and disposal of
their ten-month-old German Shepherd puppy, Bella. Specifically, Plaintiffs
allege that Defendant Clifton Mills shot the German Shepherd puppy, did
not disclose to them the dog had been shot, and dumped her body over ten
miles away in Bayou Lafourche. As a matter of procedural history of this
case but not currently before this Court, Plaintiffs also sought injunctive
relief claiming that Defendants were operating commercial activities on their
property in violation of property restrictions which limit the use of
Defendants’ property to residential purposes.
An exception of prescription as to the property restrictions and an
answer to all allegations were filed by Defendants on October 16, 2017. On January 26, 2018, the trial court granted the exception of prescription filed
by Defendants and an exception of no cause of action as to the other
defendants,1 resulting in the dismissal of Plaintiffs’ claims for property
restriction violations. The dismissal of those claims is not at issue in this
appeal.
On June 28, 2018, the Defendants filed a motion for summary
judgment. Arguments on the motion were heard on October 1, 2018, and the
trial court took the arguments of the parties under advisement. On
December 6, 2018, the trial court issued its judgment granting summary
judgment in favor of Defendants. There were no oral or written reasons for
judgment given by the trial court in support of judgment. Plaintiffs appeal
the trial court’s judgment.
DISCUSSION
Immunity is afforded to anyone killing a dog under the specific and
limited circumstances set forth under La. R.S. 3:2654, which provides:
Any person finding any dog not on the premises of its owner, harborer, or possessor, which is harassing, wounding, or killing livestock, may, at the time of finding the dog, kill him, and the owner shall not be able to sustain any action for damages against the person killing the dog.
The trial court granted the motion for summary judgment filed by
Defendants. In their motion for summary judgment, Defendants asserted
they fell within the immunity afforded by La. R.S. 3:2654 as it was alleged
the puppy was shot while harassing the horses owned by Defendants.
Plaintiffs argue the immunity afforded by La. R.S. 3:2654 must have been
1 In Plaintiffs’ petition, other named Defendants include Twin Stalks, Inc., Cole Mills Planting, Inc., Little Angola Payroll Partnership, and Clark, Inc. The aforementioned parties have since been dismissed from the suit.
2 affirmatively pled by Defendants and that any such immunity had been
waived by failing to assert the affirmative defense in either the original
answer or any subsequent pleading. As such, Plaintiffs contend in the
absence of the immunity protections asserted by Defendants the motion for
summary judgment could not otherwise have been granted and therefore
should be reversed. The Court agrees.
Plaintiffs contend that La. R.S. 3:2654 is an immunity statute by
comparing La. R.S. 3:2773(D), which provides that “[a]ny citizen or officer
may kill any dangerous or vicious dog.” Accordingly, the purpose of La.
R.S. 3:2773(D) is to provide “statutory immunity.” Hebert v. Broussard,
04-485 (La. App. 3 Cir. 11/10/04), 886 So. 2d 666, 670. Thus, Plaintiffs
claim that Defendants were barred from raising La. R.S. 3:2654 as a basis
for summary judgment
Immunity is an affirmative defense that must be specifically pleaded
by a defendant or it is deemed waived. Moresi v. State Through Dept. of
Wildlife & Fisheries, 90-0205 (La. 09/06/00), 567 So. 2d 1081, 1086; Walls
v. Am. Optical Corp., 98-0455 (La. 09/08/99), 740 So. 2d 1262, 1267. The
record does not include any request by Defendants to amend their pleadings
to assert La. R.S. 3:2654 as an affirmative defense. During oral arguments,
Defendants’ counsel conceded that he could have added the affirmative
defense set forth in La. R.S. 3:2654 but thought that he had pleaded enough
to “put them on notice . . . [and] at that point I did not know the statute
existed.”
La. C.C.P. art. 1005 requires that the answer set forth matters
constituting an affirmative defense. An affirmative defense is a defense to
3 the action which will have the effect of defeating plaintiff’s demand on its
merits. Webster v. Rushing, 316 So. 2d 111, 114 (La. 1975); Shrader v. Life
General Sec. Ins. Co., 588 So. 2d 1309, 1314 (La. App. 2 Cir. 1991), writ
denied, 592 So. 2d 1317 (La. 1992). Affirmative defenses must be
specifically pleaded. La. C.C.P. arts. 1003, 1005, as noted by this Court in
Cooper v. Borden, Inc., 30,292 (La. App. 2 Cir. 02/25/98), 709 So. 2d 878,
881 (a defendant must specifically plead affirmative defenses in its answer).
The purpose of the requirement for pleading an affirmative defense is to give
fair and adequate notice of the nature of the defense so that the plaintiff is
not surprised. Webster, supra at 114.
Defendants contend that La. R.S. 3:2654 is a negative defense rather
than an affirmative defense. An affirmative defense is distinguishable from
a negative defense in that a negative defense seeks to refute an essential
allegation of the plaintiff’s petition. Johnsa v. Edwards, 582 So. 2d 1280,
1283 (La. 1991); Keller v. Amedeo, 512 So. 2d 385, 386, 388 (La. 1987);
Alexander v. Cornett, 42,147 (La. App. 2 Cir. 07/11/07), 961 So. 2d 622,
631, writ denied, 07-1681 (La. 11/02/07), 966 So. 2d 603. By contrast, an
affirmative defense raises new matters which, assuming the allegations in
the petition to be true, constitute a defense to the action and will have the
effect of defeating plaintiff’s demand on its merits. Keller, supra at 387;
Webster, supra at 114; Cornett, supra at 631.
Defendants also argue that their answer clearly indicated that the
German Shepherd puppy was attacking Defendants’ horses, which was the
reason for killing the dog. Paragraph 15 of Defendants’ answer reads, “The
allegations . . . are denied, except to admit that Clifton L. Mills shot a
4 German Shepherd that was attacking his horses.” According to Defendants,
the brief “clearly apprised the plaintiffs of the reasons that he shot the dog –
because it was attacking his horses, which is the entire basis of RS [sic]
3:2654.” Furthermore, Defendants rely on the cases of Paxton v. Ballard,
289 So. 2d 85 (La. 1974), and Cox v. W. M. Heroman & Co., Inc., 298 So.
2d 848 (La. 1974), noting that it is not necessary to label the defense.
Defendants maintain that Plaintiffs were put on notice. We disagree that
such an assertion is tantamount to asserting the affirmative defense of the
immunity protection possible under the statute.
Defendants’ reliance on Paxton and Cox is misplaced, as Paxton
simply solved the decades-long split between the circuits of whether stating
that an accident “due solely to the negligence of the plaintiff” was enough to
plead contributory negligence as an affirmative defense. See Paxton, supra
at 87-88. The Cox case is factually specific surrounding subrogation and
extinguishment of debt and therefore not applicable. Cox, supra at 855.
In the absence of a viable immunity defense the trial court would have
before it a claim for damages for the killing and disposal of a family pet
against Defendants who admit to those allegations. As Defendants failed to
affirmatively plead La. R.S. 3:2654, those protections are waived. As such,
genuine issues of material fact remain relative to the motion for summary
judgment put forth by Defendants. We do not therefore reach the issue of
whether there were threshold actions by the German Shepherd puppy to
warrant its killing and any assertion of immunity in response thereto.
5 CONCLUSION
For the reasons set forth above, the trial court’s judgment is reversed,
and this matter is remanded for further proceedings consistent with this
opinion. Costs of this appeal are assessed to Defendants.