Dugas v. Works

61 So. 3d 826, 10 La.App. 3 Cir. 1211, 2011 La. App. LEXIS 406, 2011 WL 1267578

• Court: Louisiana Court of Appeal
• Decided: April 6, 2011
• Docket: No. 10-1211
• Status: Published

Opinions

PETERS, J.

liThe plaintiffs, Darren Dugas, Glen-ward Dugas, and Cheryl Dugas (sometimes hereinafter collectively referred to as “the Dugas plaintiffs”), brought suit against Bayou Teche Water Works, Inc. (Bayou Teche) and its insurer, American Alternative Insurance Company, seeking to recover damages they claim to have sustained as a result of Bayou Teche’s injection of brine water into an irrigation canal in Iberia Parish. The trial court granted Bayou Teche’s peremptory exception of prescription and dismissed the Du-gas plaintiffs’ demands against that defendant.¹ The Dugas plaintiffs appeal the trial court’s judgment sustaining the exception. For the following reasons, we reverse the trial court’s grant of the exception of prescription and remand the matter to the trial court for further proceedings consistent with this opinion.

DISCUSSION OF THE RECORD

We must begin by noting that while the record on appeal is rather large, the evi-dentiary record on the issue before us is exceedingly slight. Thus, most of the background available for this court’s review can only be found in the Dugas plaintiffs’ August 7, 2007 petition for damages.

That petition states that Glenward and Cheryl Dugas own eighty-five acres of land along a irrigation coulee in Iberia Parish, that Glenward Dugas leases an adjoining seventy-six acre tract of land from Darren Dugas, and that both tracts are used for crawfish and rice farming. According to the specifics of the petition, the irrigation coulee is the source of irrigation water for the farming operations. The petition asserts that Bayou Teche operates a potable water treatment plant in Iberia ^Parish and its continuous illegal discharge of brine into the irrigation coulee has caused damages to the farm operations as well as the land itself. In their petition, the Du-gas plaintiffs assert that Bayou Teche negligently caused their damages by:

(a)Failing to properly discharge its brine in accordance with the Louisiana Department of Quality rules and regulations;

(b) Improperly introducing brine into a waterway in a manner that exceeded safe limits;

(c) Failing to take steps to mitigate its brine discharge after being apprised of its harmful effects; and

(d) All other acts and or omissions as will be shown at the trial of this matter.

The Dugas plaintiffs amended their original petition on April 30,' 2010, asserting that they first became aware of Bayou Teche’s “illegal discharge” in September of 2006, and that they notified Bayou Teche’s Board of Directors of their complaints on October 5, 2006. They further asserted in their supplemental and amending petition that Bayou Teche continued its “illegal discharge” until November 1, 2007.

In its October 1, 2007 answer to the original petition, Bayou Teche denied all of the allegations of the Dugas plaintiffs’ original petition except to acknowledge that it “is a corporation organized under the laws of the State of Louisiana,” and that at all times, it had “complied with all statutes and regulations applicable to its operation.” Thereafter, the pleadings become voluminous, but primarily from various deposition notices and other procedural pleadings.²

Bayou Teche filed the exception of prescription now at issue before this court on October 19, 2009, and the exception came for trial on August 27, 2010. At the trial on the exception, the only evidence offered and accepted by the trial court was ^exhibits attached to a memorandum filed on behalf of Bayou Teche in support of its exception of prescription.³ The memorandum with ten exhibits attached was filed with the exception of prescription. The ten exhibits address only Bayou Teche’s affirmative defense that the Dugas plaintiffs’ own negligence was the legal cause of their damages and can be described as follows:

Exhibit 1 — Map of the general area in. question.

Exhibit 2 — Excerpts from a deposition of Glenward Joseph Dugas.

Exhibit 3 — Excerpts from a deposition of Robert P. Romaire.

Exhibit 4 — Copy of the Dugas plaintiffs’ original petition.

Exhibit 5 — Excerpts from a deposition of Kimberly B. Gardner.

Exhibit 6 — Excerpts from a publication entitled Fundamentals of Aquaculture. Exhibit 7 — Excerpts from a publication entitled Louisiana Crawfish Production Manual.

Exhibit 8 — Excerpts from a publication entitled 2009 Rice Varieties & Management Tips.

Exhibit 9 — Excerpts from a deposition of Thomas Hymel.

Exhibit 10 — Excerpts from a deposition of Mark Shirley.

Bayou Teche’s reply memorandum was filed on April 23, 2010, and contains no attachments.

While we do note that the above exhibits constitute the only evidence offered and accepted at the hearing, the record does contain a reference to an effort by counsel for the Dugas plaintiffs to file evidence into the record. In the exchange between counsel for the Dugas plaintiffs and the trial court, counsel suggested that he wanted “to make sure that we can introduce all the exhibits.” He stated that he had not done so because the exhibits were extremely voluminous, but that he wished to retain the opportunity to provide them to the trial court through its clerk. After a discussion concerning ways to reduce the size of the exhibits, the trial court stated it |4would leave the record open for counsel for the Dugas plaintiffs to submit the appropriate exhibits. Additionally, the trial court asked counsel exactly what exhibits would be offered and counsel suggested that they would include the depositions of Glenn Dugas and Ricky Frederick, a representative of Bayou Teche, and certain discovery responses from Bayou Teche. The record contains nothing to suggest that these exhibits were subsequently filed.

The trial court took the matter under advisement and, on June 22, 2010, issued written reasons for judgment explaining why it sustained the exception of prescription. On that same day, the trial court executed a judgment granting the exception of prescription and dismissing the Du-gas plaintiffs’ claims against Bayou Teche. The Dugas plaintiffs timely appealed this judgment.

OPINION

The peremptory exception of prescription is provided for in La.Code Civ. P. art. 927(A)(1). When the exception of prescription is tried before the trial on the merits, “evidence may be introduced to support or controvert [the exception] when the grounds thereof do not appear from the petition.” La.Code Civ.P. art. 931.

When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). However, if prescription is evident on the face of the pleadings, as it is in the instant case, the burden shifts to the plaintiff to show the action has not prescribed. Id.; Younger v. Marshall Ind., Inc., 618 So.2d 866, 869 (La.1993); Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993).

Eastin v. Entergy Corp., 03-1030, p. 5 (La.2/6/04), 865 So.2d 49, 54.

If evidence is introduced, the trial court’s findings of fact are then subject to a manifest error analysis. London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227. If no evidence is introduced, then the previewing court simply determines whether the trial court’s finding was legally correct. Dauzart v. Fin. Indent. Ins. Co., 10-28 (La.App. 3 Cir. 6/2/10), 39 So.3d 802.

In concluding that the Dugas plaintiffs’ claims had prescribed, the trial court relied on La.R.S. 9:5624, which provides that “[w]hen private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.” In reaching this conclusion, the trial court made factual findings which are not supported by the evi-dentiary record now before us. The trial court described Bayou Teche’s corporate structure, beginnings, purpose, and operating history; asserted that the waterway at issue traverses at least forty individual tracts of land; asserted a property ownership history of the Dugas plaintiffs’ properties; and asserted facts associated with the damage claims not in the evidentiary record.⁴ To the extent that these factual findings are manifestly erroneous, we must set them aside and review only the existing evidentiary record to see if Bayou Teche carried its burden of proof.

In identifying the issues raised by their single assignment of error that the trial court erred in granting the exception of prescription pursuant to La.R.S. 9:5624, the Dugas plaintiffs assert that the eviden-tiary record contains nothing to establish that Bayou Teche is a legal entity covered by the statute; and that even if Bayou Teche could be considered as covered by the statute, nothing in the evidentiary record establishes an “acceptance of a ‘public works’ project” or that the damages sustained were incurred for a “public purpose” or as a “necessary consequence” of the public |nwork. Thus, they argue, the trial court erred in concluding that their claims against Bayou Teche prescribed pursuant to La.R.S. 9:5624. We agree.

As previously stated, the only evidence introduced at the hearing on the exception addressed Bayou Teche’s affirmative defense relating to the Dugas plaintiffs’ own negligence in causing their damages. In its answer to the Dugas plaintiffs’ petition, Bayou Teche identified itself as nothing more than “a corporation organized under the laws of the State of Louisiana,” and denied all other allegations of the petition. Even the argument presented at the hearing on the exception of prescription did not address the particulars of the statute and how Bayou Teche may have met those particulars. Simply put, Bayou Teche failed in its evidentiary burden.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s grant of an exception of prescription in favor of Bayou Teche Water Works, Inc. and remand the matter to the trial court for further proceedings. We assess all costs of this appeal to Bayou Teche Water Works, Inc.

REVERSED AND REMANDED.

AMY, J., concurs in the result and assigns reasons.

1 . Although American Alternative Insurance Company is named as a defendant in its capacity as the liability insurer of Bayou Teche, it did not join in the filing of the peremptory exception of prescription, and the judgment on the exception awards relief only to Bayou Teche. Thus, American Alternative Insurance Company is not a party to this appeal.

2 . Other insurers have been named as third-party defendants by Bayou Teche, but the issues raised by the joining of those parties are not now before this court.

3 . At the trial on the exception, counsel for Bayou Teche stated that "[a]s an administrative matter, Your Honor, I’d like to offer, file and introduce all of the exhibits attached to our memorandum as well as our reply memorandum.” The record before us contains the reply memorandum, but no exhibits are attached to that filing.

4 . These facts may well be buried in the numerous other filings found in this voluminous record, but they do not appear as evidence in the trial on the exception.