Cornay v. FMC Corp.

735 So. 2d 944, 98 La.App. 3 Cir. 1312, 1999 La. App. LEXIS 1760, 1999 WL 346210
CourtLouisiana Court of Appeal
DecidedJune 2, 1999
DocketNo. 98-1312
StatusPublished

This text of 735 So. 2d 944 (Cornay v. FMC Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cornay v. FMC Corp., 735 So. 2d 944, 98 La.App. 3 Cir. 1312, 1999 La. App. LEXIS 1760, 1999 WL 346210 (La. Ct. App. 1999).

Opinions

| ]AMY, Judge.

The plaintiff plantation owners filed suit against a neighboring farm and a chemical company alleging that a herbicide applied to an adjacent field migrated onto their property, damaging several oak trees. The defendants ’ filed exceptions of prescription asserting that the plaintiffs filed suit more than one year after they had sufficient knowledge that any damage to their property was caused by the herbicide application. Although originally referred to the merits,' the trial court granted a subsequently filed exception on this basis. The plaintiffs now appeal. For the following reasons, we affirm.

Factual and Procedural Background

Louis J. Cornay and his wife, Jeanne Williams Cornay, are the owners of Chretien Point, a plantation home near Sunset, Louisiana. In the petition instituting this matter, the Cornays alleged that a neighboring farmer, Berchman Lavergne, sprayed a herbicide on his soybean crop growing in a field directly across the road |2from their property. The plaintiffs alleged that these sprayings, which allegedly occurred in 1988 and 1989, utilized Command Herbicide, a herbicide manufactured by FMC Corporation (FMC).

The plaintiffs asserted in their petition that this application was negligently performed on a windy day causing a drift of the herbicide. According to the plaintiffs’ original petition, Lavergne’s negligent application of the herbicide ultimately “caused the death of one live oak tree and damage to eight other live oaks, a water oak, and a Southern magnolia.” Both Lav-ergne and FMC were named as defendants in the petition filed May 29, 1992. The plaintiffs sought recovery for property damage as well as mental anguish.

After the initial petition was filed, both defendants filed exceptions of prescription asserting that suit was filed in excess of one year after any cause of action stemming from the 1988 and 1989 applications arose. The record indicates that the original judge hearing the case referred the exceptions to the trial on the merits of the suit.

In June 1996, the plaintiffs filed a supplemental and amending petition alleging that “FMC Corporation through its agent, Mr. Henry Stefanski, assured Mr. Cornay on more than one occasion that Command could in no way cause the damages he claimed were done to his property.” Furthermore, the plaintiffs alleged that the herbicide was defective and presented an unreasonable risk of harm.

Thereafter, both defendants once again filed exceptions of prescription. Each was alternatively styled as a motion for summary judgment. In extensive reasons for ruling, the trial judge, different from the judge who referred the original exceptions lato the merits, found that additional evidence submitted by the parties indicated that prescription began to run on April 25, 1991. As suit was not filed until May 29, 1992, he maintained both of the defendants’ exceptions.

The plaintiffs appeal, asserting the following assignments of error:

1. The trial court committed manifest error in upholding defendants’ Exception of Prescription and should have upheld Judge Joseph LaHaye’s judgment referring the exception to the trial on the merits.
2. The trial court erred in apparently not considering the evidence presented in Mr. Jim Foret’s deposition.
3. The trial court erred in failing to apply the doctrine of contra non valen-tem with regard to its application of LSA-C.C. Article 3492; and,
4. The trial court erred in not applying C.C. Article 3493.

Discussion

Previous Ruling

In their first assignment of error, the plaintiffs argue that the trial court erred in maintaining the exceptions of pre[947]*947scription after they had been referred to the merits by the original trial judge. They contend that the subsequent exceptions were based upon the same evidence relied upon in the original exceptions.

In written reasons for ruling, the trial court found, in part, as follows with regard to the previous ruling of the original judge:

On September 3, 1993, Judge Joseph LaHaye, the writer’s predecessor to the Division B bench, considered defendants’ exception of prescription. Having considered both the arguments of counsel and the evidence, Judge LaHaye referred the exception to the merits. Defendants now re-urge their motion for the exception of prescription. A hearing was had on this re-urged exception on February 6,1998.
14While this Court gives great deference to its predecessor’s decisions, there has been more evidence adduced in this matter. The Court must now consider the following additional evidence. Specifically, the Court must consider defendants’ exhibits “Cornay F 1-7.”

Despite the parties’ styling of Judge La-Haye’s ruling upon the original exceptions of prescription, the record does not'indicate that Judge LaHaye denied the exceptions, only that they were referred to the merits of the trial. The exceptions, which had not been ruled upon, were merely reurged by the parties. Furthermore, as is evident from the trial court’s rulings, new evidence was presented and relied upon. We find no error in the trial court’s decision in this regard.

Prescription

The plaintiffs’ remaining assignments all relate to the appropriateness of the trial court’s maintenance of the exceptions of prescription. As such, we will address these assignments together. Principally, the plaintiffs contend that the court’s judgment was erroneous as the doctrine of contra non valentem is applicable and should have been found to suspend the prescriptive period until June-July of 1991, the time at which they had an arborist inspect their trees and advise that the damage was associated with chemical exposure. They contend that contra non valentum became operative due to statements from an FMC representative indicating that Command did not cause the type of damage of which they complained.

La.Civ.Code art. 3492 provides that “[djelictual actions are subject to a libera-tive prescription of one year. This prescription commences to run from the day | .¡injury or damage is sustained.” Furthermore, with regard to damage to immov-ables, as is alleged in the instant matter,1 Article 3493 provides:

When damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.

(Emphasis added.)

In the instant matter, the plaintiffs’ petition alleges that the harmful spraying of the FMC herbicide by Lavergne was performed in 1988 or 1989. The original petition instituting this matter was filed on February 29, 1992. Thus, the face of the petition indicates the cause of action has prescribed, a situation requiring the plaintiff to bear the burden of demonstrating that the claim has not prescribed. See Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993); Taussig v. Leithead, 96-960 (La.App. 3 Cir. 2/19/97); 689 So.2d 680.

[948]*948In the.instant matter, the plaintiffs attempt to meet their burden by urging that prescription was suspended due to the doctrine of contra non valentem.

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735 So. 2d 944, 98 La.App. 3 Cir. 1312, 1999 La. App. LEXIS 1760, 1999 WL 346210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornay-v-fmc-corp-lactapp-1999.