Nikolaus v. City of Baton Rouge/Parish

40 So. 3d 1244, 2009 La.App. 1 Cir. 2090, 2010 La. App. LEXIS 904, 2010 WL 2342656
CourtLouisiana Court of Appeal
DecidedJune 11, 2010
Docket2009 CA 2090
StatusPublished
Cited by7 cases

This text of 40 So. 3d 1244 (Nikolaus v. City of Baton Rouge/Parish) 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
Nikolaus v. City of Baton Rouge/Parish, 40 So. 3d 1244, 2009 La.App. 1 Cir. 2090, 2010 La. App. LEXIS 904, 2010 WL 2342656 (La. Ct. App. 2010).

Opinions

DOWNING, J.

|2The City of Baton Rouge/Parish of East Baton Rouge (City/Parish) appeals a judgment ordering it to pay damages to Emily Nikolaus, the appellee, for damages arising from flooding of her home. For the following reasons, we affirm the trial court’s judgment in part and we reverse in part.

PERTINENT FACTS AND PROCEDURAL HISTORY

Emily Nikolaus bought a home in Baton Rouge, Louisiana, in August 2005. The home is not located in a FEMA flood zone. In April 2006, however, Ms. Nikolaus arrived at her home after a strong rain and found that her house had flooded. Ms. Nikolaus’s mother reported the flooding to the City/Parish, which sent a crew out to [1246]*1246clear the drain pipes. Ms. Nikolaus later purchased flood insurance for her home.

At the end of December 2006, Ms. Niko-laus was home when another heavy rain caused her home and property to flood. Ms. Nikolaus filed a claim with her flood insurance carrier. She also filed a lawsuit against the City/Parish alleging that her flood damage was caused by the City/Parish’s failure to repair and maintain the drainage system. After a bench trial, the trial court rendered judgment in favor of Ms. Nikolaus and against the City/Parish. The trial court’s judgment awarded Ms. Nikolaus $3,500.00 for emotional trauma associated with the April 2006 flood; $5,500.00 for emotional trauma associated with the December 2006 flood; $26,750.63 in property damage for damage to her home and contents; $1,756.00 for the cost of the flood insurance Ms. Nikolaus purchased; interest; and costs, including expert witness fees.

The City/Parish now appeals, asserting five assignments of error:

1. The trial court erred by excluding the plaintiffs homeowner’s insurance policy on the basis the evidence constituted hearsay. Under the express terms of the Code of Evidence, the policy was not hearsay because it was an adoptive admission. Further, it was admissible because it was properly authenticated;
|s2. The trial court erred by awarding damages for the amount of the depreciation;
3. The trial court erred by awarding to the plaintiff damages in the form of the costs that she paid for her flood insurance premiums;
4. The trial court erred by awarding damages to the plaintiff for the emotional trauma associated with her damage to property from the April 2006 flood event because the law indicates that a plaintiff may recover such damages only when she is present to witness the destruction of her properly;
5.The trial court erred by finding in favor of the plaintiff because there is no record evidence to support a finding that the conduct in question was a cause-in-fact of the resulting harm.

DISCUSSION

Unauthenticated Insurance Policy Documents

The City/Parish first argues that an uncertified photocopy of a homeowners’ insurance policy that Ms. Nikolaus produced in response to a request for production of documents should have been admitted into evidence as an adoptive admission. The City/Parish sought admission of the document because it contained a subrogation clause that allegedly would control the outcome of this matter. The trial court sustained Ms. Nikolaus’s objection that the policy and an associated statement of loss document were hearsay and were not authenticated. We find no error in the trial court’s ruling.

Because authentication of evidence is a condition precedent to admissibility, an exhibit that is not authenticated does not constitute competent evidence. Price v. Roy O. Martin Lumber Co., 04-0227, p. 8 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, 822. “ ‘Authentication’ is a process whereby something is shown to be what it purports to be.” Id. “Evidence must either be authenticated as provided in La. C.E. art. 901, or it must be self-authenticating.” Id. See La. C.E. art. 902. Louisiana Code of Evidence article 901(B) includes a nonexclusive list of methods that may be utilized to authenticate evidence, including testimony of a |4witness with knowledge and any method of authentication or iden[1247]*1247tification provided by Act of Congress or by Act of the Louisiana Legislature.

Responses to discovery requests for production are not included in the Art. 901 B list. And we know of no code article, statute or case that automatically makes a response to a request for production an admission or otherwise admissible on the basis that it was produced in discovery alone. To the contrary, evidence is not admissible solely on the ground that it was produced in response to a discovery request.1 See Newpark Resources, Inc. v. Marsh & McLennan of Louisiana, Inc., 96-0985, p. 5-6 (La.App. 1 Cir. 2/14/97), 691 So.2d 208, 211. Under La. C.E. art. 901, authentication of evidence is a condition precedent to admissibility. Id.

Nonetheless, the City/Parish argues that the photocopy of the policy is an adoptive admission and, as such, is an exception to the hearsay rule pursuant to La. C.E. art. 801 D(2)(b), which provides that a party’s statement is not hearsay if it is a “statement of which he has manifested his adoption or belief in its truth[.]” The City/Parish suggests an answer to an interrogatory is such an admission. The City/Parish argues that the photocopy should be admitted where nothing calls the document’s authenticity into question, citing Reed v. American Equity Ins. Co., 05-1298, p. 6 (La.App. 3 Cir. 4/5/06), 927 So.2d 1210, 1215, among other cases.

In that regard, we first note that the record contains no statement, either testimonial or written, by which Ms. Nikolas has manifested her belief that the photocopy is an authentic copy of the insurance policy, even if she were qualified to attest to the copy’s authenticity. Rather, when questioned, Ms. Nikolaus testified that she believed the “flood insurance policy would have been something ^different” than the photocopy provided. Further, Ms. Niko-laus’s counsel specifically objected to the photocopy as being unauthenticated and hearsay. Also, at the beginning of the trial, the parties declined to stipulate to the admissibility and authenticity of the evidence. Here, the photocopy of the insurance policy is not self-authenticating and is not otherwise authenticated.

We additionally note that La. R.S. 13:3733 provides a mechanism for authenticating business records and documents “for purposes of ... admissibility under Louisiana law.” The City/Parish, however, did not employ this statutory mechanism.

The City/Parish also argues that the photocopy is admissible as a business record pursuant to La. C.E. art. 901 A. The trial court disagreed, noting that Ms. Ni-kolaus was not in the business of being flooded. The trial court did not err in this regard.

We therefore conclude that the trial court did not err in failing to admit the unauthenticated photocopies of the insurance policy and other documents into evidence. The City/Parish’s first assignment of error is without merit.

Depreciation

Without the evidence contained in the excluded insurance documents, the record contains no evidence, whether or not suffi-[1248]*1248dent, regarding depreciation in value of Ms. Nikolaus’s property and improvements. Accordingly, the City/Parish’s second assignment of error is without merit.

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Nikolaus v. City of Baton Rouge/Parish
40 So. 3d 1244 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
40 So. 3d 1244, 2009 La.App. 1 Cir. 2090, 2010 La. App. LEXIS 904, 2010 WL 2342656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nikolaus-v-city-of-baton-rougeparish-lactapp-2010.