Josie Stokes Weatherly v. Fonseca & Associates, LLC

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-495

JOSIE STOKES WEATHERLY

VERSUS

FONSECA & ASSOCIATES, L.L.C., ET AL.

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20086778 HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and James T. Genovese, Judges.

AFFIRMED.

Stan Gauthier, II Nichole Laborde Romero Attorneys at Law 1405 West Pinhook Road, Suite 105 Lafayette, La 70503 (337) 234-0099 Counsel for Plaintiff/Appellant: Josie Stokes Weatherly

Nancy A. Richeaux Sharon B. Kyle, A.P.L.C. 4960 Bluebonnet Boulevard, Suite A Baton Rouge, LA 70809 (225) 293-8400 Counsel for Defendant/Appellee: Manuel Builders, L.L.C. Sera Hearn Russell, III Attorney at Law P. O. Box 53866 Lafayette, LA 70505-3866 (337) 237-7171 Counsel for Defendant/Appellee: Manuel Builders, L.L.C.

Wayne Allen Shullaw Attorney at Law P. O. Box 4815 Lafayette, LA 70502-4815 (337) 266-2310 Counsel for Defendant/Appellee: Montagnet & Domingue

David J. Ayo Allen & Gooch 2000 Kaliste Saloom, Suite 400 Lafayette, LA 70508 (337) 291-1450 Counsel for Defendants/Appellees: Continental Casualty Company Fonseca & Associates, L.L.C. R. J. Fonseca, Jr. Standard Title, L.L.C. Mitchell R. Landry DECUIR, Judge.

This is a homeowner’s appeal of the trial court’s grant of summary judgment

in favor of the builder.

FACTS

Josie Stokes Weatherly (Weatherly) contracted with Manuel Builders, LLC

(Manuel) for the construction of a home on her land. Under the contract, Weatherly

was to provide a survey of the property and assumed responsibility for any concealed

condition. Despite having actual knowledge of the existence of a gas pipeline on her

property, Weatherly provided a survey that did not show the pipeline servitude nor

did she disclose its existence.

Construction commenced on the site at the same location where Weatherly’s

mobile home had previously been located. When construction was approximately

eighty percent complete, Manuel’s septic tank installation subcontractor called the

Louisiana One Call Center which came to the site and located the gas pipeline. At

that time, it was determined that the residence encroached on the pipeline servitude.

Weatherly halted construction. Weatherly was later presented with a waiver from the

pipeline company allowing construction to continue. Nevertheless, Weatherly did not

allow construction to continue. Instead, she filed this lawsuit alleging negligence on

the part of Manuel in failing to call Louisiana One Call before commencing

construction.

Manuel filed a motion for summary judgment which was granted by the trial

court. This appeal followed.

DISCUSSION

Weatherly contends that the trial court erred in granting summary judgment. Appellate courts review summary judgments de novo under the same criteria

that governed the trial court’s consideration of whether or not summary judgment was

appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991);

Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ

denied, 97-2737 (La. 1/16/98), 706 So.2d 979. Summary judgment is proper when

the pleadings, depositions, answers to interrogatories, and admissions on file, together

with affidavits, show that there is no genuine issue of material fact and that the mover

is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

The threshold question in reviewing a trial court’s grant of summary judgment

is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App.

3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882.

After which, we must determine whether reasonable minds could conclude, based on

the facts presented, that the mover is entitled to judgment. Id. Thus, summary

judgment is appropriate when all relevant facts are brought before the court, the

relevant facts are undisputed, and the sole remaining issue relates to the legal

conclusion to be drawn from the facts. Id.

In this case, Weatherly argues that by failing to call the Louisiana One Call

Center Manuel breached a duty owed to her under the Louisiana Underground

Utilities and Facilities Damage Prevention Law, La.R.S. 40:1749.11 et. seq. to

determine the location of the pipeline servitude. We disagree.

The Louisiana Underground Utilities and Facilities Damage Prevention Law

on its face designates that the public policy goal is to protect the public from damage

resulting from the underground utilities being damaged. Weatherly seeks to extend

that purpose to protect her from locating her home on a gas pipeline servitude. We

2 find that the Louisiana Underground Utilities and Facilities Damage Prevention Law

is not intended nor is it adequate to protect a homeowner from locating a residence

within a gas pipeline servitude. Accordingly, if Manuel breached a duty by failing

to call the Louisiana One Call Center, that duty did not encompass the risk that

Weatherly would construct her home on a gas pipeline servitude. This is particularly

true in this case where Weatherly had actual knowledge of the existence of the

pipeline and contractual responsibility for the disclosure of concealed dangers and the

site survey.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to appellant, Josie Stokes Weatherly.