Michael J. Romero v. City of New Iberia

• Court: Louisiana Court of Appeal
• Decided: December 12, 2012
• Docket: CA-0012-0666
• Status: Unknown

Opinion

NOT FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

12-666

MICHAEL J. ROMERO, ET AL.

VERSUS

CITY OF NEW IBERIA

********** APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, DOCKET NO. 116,329 HONORABLE CHARLES L. PORTER, DISTRICT JUDGE **********

SYLVIA R. COOKS JUDGE

**********

Court composed of Sylvia R. Cooks, Oswald A. Decuir and Shannon J. Gremillion, Judges.

AFFIRMED.

James W. Schwing, Sr. 411 Iberia Street New Iberia, LA 70560 (337) 365-2445 ATTORNEY FOR PLAINTIFF/APPELLEE Michael J. Romero

Karen Day White 700 North Tenth Street, Suite 440 Baton Rouge, LA 70802 (225) 332-7631 ATTORNEY FOR DEFENDANT/APPELLANT The City of New Iberia COOKS, Judge.

Defendant, the City of New Iberia, appeals the trial court‟s judgment finding

it liable in damages for a defect in its sewer line which led to flooding of Plaintiffs‟

property. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 23, 2010, Plaintiffs filed suit alleging property damages from

various instances of flooding. The commercial property at issue is located at 131

Main Street in the City of New Iberia. The property is known as La Petite Mall,

and was leased at the time of the flooding problems in question to the Academy of

Acadiana Nursing School. The property is owned by Michael Romero and his two

sons, Corey and Shaun Romero. Johnny Romero, who is Michael‟s father, and

Corey and Shaun‟s grandfather, stated he purchased the property as a future

investment for his son and grandsons. After suit was filed, Johnny Romero was

added as a party plaintiff. On August 2, 2011, Michael, Corey and Shaun assigned

all of their rights in the litigation to Johnny. Michael, Corey and Shaun were

subsequently dismissed upon their voluntary motion on August 11, 2011, leaving

Johnny Romero as the only remaining plaintiff.

Mr. Romero alleged that flooding problems began with the property in 2007,

and he immediately brought this to the attention of the City of New Iberia

Sewerage Department. He also stated he hired a plumber, Calvin Segura, to

investigate the sewer lines on his premises. Mr. Segura found no problems with

the sewer lines on Mr. Romero‟s property. Mr. Romero testified the damages

sustained in the 2007 flooding incident were relatively minor, and he absorbed the

costs.

Mr. Romero testified after the 2007 flooding problems he undertook a major

renovation on the property, creating numerous, separate, commercial rental spaces. He estimated the cost of this renovation was approximately $750,000.00.

In September of 2008, during Hurricane Ike, flooding from an apparent

sewerage back flow occurred on Mr. Romero‟s property. Ginger Barras, the

director of the Academy of Acadiana Nursing School (the major tenant of the

property), testified flood waters entered the building through toilets and flood

drains. She testified on several other occasions, both prior and after, the property

flooded due to sewerage back flow.

Mr. Romero testified he again hired Mr. Segura to find the cause of the

flooding after the September, 2008 flooding incident. Mr. Segura found no

obstruction in the property‟s sewerage system. The City of New Iberia Sewerage

Department was then contacted and attempted to find the property‟s sewer

connection to the City‟s main sewerage line. They were unable to locate the sewer

connection to the main line and could not determine the cause of the flooding

problems. The City of New Iberia acknowledged it did not possess any drawings

showing the sewerage connections between the main line and private plumbing

systems in that area.

Mr. Romero testified the property continued to suffer flooding incidents after

heavy rains. All parties confirmed the City attempted on several occasions to

determine the cause of the flooding problems. Several tests were performed,

including closed circuit camera inspections, water-dye flood testing, smoke testing

and visual inspections of the municipal sewerage system.

In March, 2009, a severe rain storm hit the area and there was a subsequent

sewerage system back flow which caused substantial damage to the property. Mr.

Romero testified the property suffered damages in the amount of $127,611.19.

Following this flood, Mr. Romero hired Wayne Labiche, a civil engineer, to

attempt to determine the cause of the sewer flood events. Mr. Labiche consulted 2 with Calvin Segura, Rodney Babineaux (another plumber who was hired by Mr.

Romero to inspect his sewer line for problems on the recommendation of Vince

Palumbo), and property owners/managers from the surrounding area. Mr. Labiche

issued a report which concluded the damages to Mr. Romero‟s property were

caused by an overflow of sewerage due to the inability of the City of New Iberia

Sewer Department‟s gravity system to handle normal sewage flow when combined

with the increased infiltration demand from heavy rainstorms. He also believed

due to the age of the City‟s pipes in the area, water gets into the sewerage system

because of cracks in the lines as well as broken or separated joints.

Mr. Labiche also indicated in his report it was his belief that the City had, in

the Spring of 2009, installed a backflow preventer on the sewer line to alleviate the

flooding problems. In conducting his interviews with owners and tenants in the

area, Mr. Labiche ascertained that the City had excavated two sections of piping in

the area of Mr. Romero‟s property in an attempt to locate Mr. Romero‟s service

line. Mr. Romero was unable to find out exactly what the City did or

accomplished with these excavations. However, Mr. Labiche concluded

“[s]tatements by the tenants about the difference noticed in the flushing of the

toilets and information passed along by Rodney Babineaux support the existence of

a backflow preventer. . . when they did their work on Mr. Romero‟s service line.”

Mr. Romero also presented the testimony of other owners or managers of

nearby property that experienced similar problems with sewerage back flow.

James Perez, who owns an insurance agency located at 105 West Main Street,

testified that he suffered several instances of flooding on his property due to

sewerage back flow during the last six years. Specifically, he stated on several

occasions after heavy rains he experienced back flow from floor drains and toilets

overflowing. He stated he contacted the City of New Iberia Sewer Department for 3 help with this problem.

Janet Faulk, the director of the New Iberia Chamber of Commerce located at

111 West Main Street, testified on May 5, 2008, this property suffered from a

“continuing problem” resulting from water intrusion. The Chamber installed a

new sewer line, which seemed to alleviate the problem. However, in September

2011, she told Mr. Labiche when he interviewed her, that after heavy rains the

water level in the toilets rose significantly, although they stopped short of

overflowing.

Lastly, Mr. Romero presented testimony and invoices from several repairmen

he hired to establish the damages he suffered and costs he expended as a result of

the water intrusion on his property. To counter this testimony, the City presented a

repair estimate from an adjuster which concluded the costs of repair and

remediation of the entire building was approximately one-third of what Mr.

Romero claimed.

The City also presented the testimony of Vince Palumbo, the Director of the

Waste Water Department for the City of New Iberia. He agreed that the City‟s

sewer pipes in the area of Mr. Romero‟s property were approximately 100 years

old. He confirmed dispatching City employees to the area in question on several

occasions to conduct various tests on the sewer lines. Mr. Palumbo acknowledged

the City employees were unable to locate the connection from Mr. Romero‟s

property to the City‟s sewer lines. He then told Mr. Romero he needed to hire a

plumber to find the location of the connection. Mr. Palumbo recommended

Rodney Babineaux to Mr. Romero, who hired him shortly thereafter.

According to Mr. Palumbo, Mr. Babineaux located the connection, left

markings on the ground to indicate where it was, and contacted the City with that

information. It was alleged by Mr. Labiche in his report that the City then installed 4 a backflow preventer, which largely eliminated the problems with flooding. Mr.

Palumbo did not confirm this action.

The trial court noted it was Mr. Romero‟s burden to prove, pursuant to

La.R.S. 9:2800, there was a defect in the City‟s sewerage system which presented

an unreasonable risk of harm and that the defect caused the damage. The trial

court found the testimony of Mr. Labiche “established the presence of an old,

faulty, fragile and defective New Iberia sewer system.” The trial court also noted

Mr. Romero‟s testimony of frequent sewer overflow instances was corroborated by

other business owners in the area. The trial court also found the City had notice of

the particular vice or defect in the sewerage system and failed to remedy said

defects. This failure to maintain and repair the sewerage system was the sole cause

of the damages Mr. Romero suffered, which the trial court found to amount to

$127,611.19. The judgment cast the City liable to Mr. Romero for that amount of

damages plus legal interest from the date of judicial demand. The City appealed

the trial court‟s judgment, asserting the following assignments of error:

(1) The trial court erred in finding Mr. Romero proved the existence of a particular defect in the City‟s sewer line and/or any causal link between any defect and alleged flooding;

(2) Mr. Romero is solely, or at a minimum, comparatively at fault for the flooding and any ensuing damages that occurred; and

(3) The amount of damages awarded was not proven at trial.

ANALYSIS

I. The Trial Court’s Findings as to Liability.

In Ambrose v. City of New Iberia, 08-1197, p. 2 (La.App. 3 Cir. 4/1/09), 11

So.3d 34, 36-37, this Court set out the applicable law in situations where a plaintiff

alleges a public entity is responsible for a defect which causes damage:

We recognize that La.R.S. 9:2800 requires actual or constructive notice of the defect as a prerequisite to claims against 5 public entities such as the City for damages caused by the condition of things within its care and custody. La.R.S. 9:2800 provides in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.

B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

As such, the plaintiff must prove (1) the defendant owned or had custody of the thing that caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual or constructive knowledge of the defect or unreasonable risk of harm and failed to take corrective action within a reasonable time; and (4) causation. Wilson v. City of New Orleans, 95-2129 (La.App. 4 Cir. 4/3/97), 693 So.2d 344, writ denied, 97-1701 (La.10/13/97), 703 So.2d 613. A municipal authority is deemed to have constructive notice if the defect existed for such a period of time that by exercise of ordinary care and diligence, the municipal authority must have known of its existence, and the municipal authority had a reasonable opportunity to guard the public from injury by remedy of the defect. Dawson v. City of Bogalusa, 95-0824 (La.App. 1 Cir. 12/15/95), 669 So.2d 451.

An appellate court may not overturn a jury‟s [or judge‟s] finding of fact “in the absence of „manifest error‟ or unless it is „clearly wrong.‟” Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Even if the court of appeal believes that its own findings are more reasonable, the finder of fact‟s “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Id. “Thus, where two permissible views of the evidence exist, the factfinder‟s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 883.

The City argues that the trial court manifestly erred in finding the existence of

a particular defect in the City‟s sewer line and any causal link if there was a defect.

The trial court relied on the testimony and report of Mr. Labiche to find there was a

6 defect with the City‟s sewer line. Mr. Labiche concluded the City‟s sewer gravity

system during periods of heavy rain was unable to handle normal sewage flow,

causing sewerage backflow which led to flooding of Mr. Romero‟s property. This

problem he believed was exacerbated by cracks in the City‟s century old sewer

lines as well as broken or separated joints which allowed increased water

infiltration into the City‟s sewer system. The trial court specifically found Mr.

Labiche‟s expert testimony “established the presence of an old, faulty, fragile and

defective New Iberia sewer system.”

The City attempted to counter Mr. Labiche‟s testimony with that of Vince

Palumbo, the Director of the Waste Water Department for the City of New Iberia.

It notes Mr. Palumbo testified Mr. Romero‟s private sewer lines were made of terra

cotta, which was extremely susceptible to cracks and failed joints. However, Mr.

Palumbo did acknowledge on cross-examination that the City‟s pipes were

approximately 100 years old, and thus also susceptible to cracks and faulty joints.

Mr. Palumbo also testified there were roof drains on the adjacent building, which

might be connected to Mr. Romero‟s private sewer line, which could create

increased water pressure on the private sewer line. The City hypothesized in its

brief that “[p]erhaps the simplest explanation is that in the 60 or 70 years since the

Romero‟s 245-foot terracotta pipes were installed, the integrity of those pipes has

collapsed, allowing infiltration and causing problems during periods of intense

rainfall.” Of particular note, when questioned as to Mr. Labiche‟s conclusions that

it was a defect in the City‟s sewer pipes which led to the flooding of Mr. Romero‟s

property, Mr. Palumbo stated:

Q: You heard our expert (Mr. Labiche) testify that he thought that the water coming into Mr. romero‟s building was from the City, from the street? You heard him say that?

A: I did hear him say that. 7 Q: And you don‟t agree with that?

A: I mean, it‟s his opinion.

Q: But you don‟t agree with that?

A: I don‟t disagree with it and - -

Q: And you don‟t disagree with it. Thank you.

The trial court also noted that other business owners in the same vicinity

corroborated the occurrence of frequent sewer overflow events in the area. The

City argued there was no specific testimony of any other flooding events in the

area on March 25, 2009, which was the flooding event which caused the majority

of Mr. Romero‟s damages. However, the trial court was not unreasonable in

concluding that various incidents of flooding in the area, whether on that specific

date or not, corroborated Mr. Romero‟s claim that a defect existed in the City‟s

sewer system.

In reaching its conclusion, the trial court considered the evidence before it on

the issue, primarily the testimony and evidence offered by Mr. Labiche and Mr.

Palumbo. Ultimately, the trial court found Mr. Labiche‟s conclusions the most

credible. Even were we to accept the City‟s arguments that Mr. Palumbo‟s

testimony supported its position that there was no proof its sewer pipes were the

cause of the flooding, it only served to create a conflict with Mr. Labiche‟s

testimony. Resolution of this conflict in the testimony is the sole province of the

finder of fact, and this court may not disturb that conclusion unless we find it to be

manifestly erroneous. After review of the record before us, we cannot say this

determination was manifestly erroneous.

The record also established that the trial court did not manifestly err in

finding the City had actual or constructive notice of defect and a reasonable

8 opportunity to repair the defect. The evidence was clear the City had been called

out on numerous occasions by Mr. Romero and other property owners in the area

concerning problems with flooding, toilets unable to flush and foul odor after

heavy rains. Mr. Palumbo confirmed the City responded on numerous instances to

these complaints, but was unable to locate the source of the problems.

There also is no merit to the City‟s argument that Mr. Romero failed to prove

a causal link between any defect and alleged flooding. The record contains ample

evidence tending to show that the City‟s failure to repair and/or maintain its sewer

system in the area caused flooding and extensive damage to Mr. Romero‟s

property.

Lastly, we find no evidence in the record establishing any comparative fault

on the part of Mr. Romero. The record shows Mr. Romero repeatedly contacted

the City in regards to his flooding problems. Further, when requested by the City

to inspect his own sewer lines he hired private plumbers to do so. In fact, Mr.

Romero followed the recommendation of Mr. Palumbo and hired Rodney

Babineaux to inspect his private sewer lines. The testimony of Mr. Palumbo also

indicated the City relied on the work of Mr. Babineaux to finally locate the

connection between Mr. Romero‟s private line and the City‟s sewer line.

II. Amount of Damages.

In its final assignment of error, the City contends the trial court abused its

discretion in awarding the full amount of damages claimed by Mr. Romero,

arguing he failed to establish same.

Mr. Romero presented the testimony and invoices from those

workers/companies who performed the repairs on his property. The City called

into question the credibility of some of the amounts claimed by Mr. Romero‟s

witnesses. The City also presented the testimony of Randy Vidrine, an adjuster 9 who performed a repair estimate for the work done on the property. He estimated

the repair and remediation of the entire building amounted to $42,071.79.

The trial court heard the conflicting testimony regarding the extent of

damage caused to Mr. Romero‟s property and the alleged costs of repair. The

court considered the evidence and weighed the credibility of the witnesses. The

trial court undoubtedly found Mr. Romero‟s witnesses were credible and accepted

the amounts charged for the repairs made by them. The law is well settled that the

factfinder‟s choice between two permissible views of the evidence cannot be

manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citing

Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Watson v. State Farm Fire

& Casualty Ins. Co., 469 So.2d 967 (La.1985)). Reasonable evaluations of

credibility and reasonable inferences of fact should not be disturbed upon review

where conflict exists in the testimony. Cole v. State Department of Public Safety

& Corrections, 01-2123 (La. 9/4/02), 825 So.2d 1134. Moreover, the trier of fact

is given much discretion in the assessment of damages, and upon appellate review,

damage awards will be disturbed only when there has been a clear abuse of that

discretion. La.Civ.Code art. 2324.1. Thus, we cannot say the trial court erred in

awarding damages based upon the testimony and invoices of Mr. Romero‟s

witnesses.

DECREE

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

costs of this appeal are assessed to defendant-appellant, the City of New Iberia.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2—16.3.