Petch v. Humble

939 So. 2d 499, 2006 WL 2422914
CourtLouisiana Court of Appeal
DecidedAugust 23, 2006
Docket41,301-CA
StatusPublished
Cited by13 cases

This text of 939 So. 2d 499 (Petch v. Humble) 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
Petch v. Humble, 939 So. 2d 499, 2006 WL 2422914 (La. Ct. App. 2006).

Opinion

939 So.2d 499 (2006)

Jerry Wallace PETCH and Olita Mae Bennet Petch, Plaintiffs-Appellants
v.
Dr. Dallas D. HUMBLE, Leslie R. Humble, Chad Pickle, and P & H Enterprises, Defendants-Appellees.

No. 41,301-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 2006.
Rehearing Denied September 21, 2006.

*501 J. Arthur Smith, Baton Rouge, for Appellants.

Daniel P. Parker, for Appellees.

Before BROWN, STEWART and GASKINS, JJ.

STEWART, J.

Plaintiffs, Jerry Wallace Petch and Olita Mae Bennet Petch, seek reversal of the partial summary judgment rendered by the trial court dismissing their claims against defendants, Dr. Dallas D. Humble, Leslie R. Humble, and Chad Pickle. For the following reasons, the judgment of the trial court is hereby affirmed.

FACTS

Jerry and Olita Petch own and reside on approximately five acres of land located on the Wall Williams Road in West Monroe, Louisiana. In addition to their residence, the land contains a recreational fishing pond which is the alleged focal point of the property. Its aesthetic appeal is one of the main reasons the Petches purchased the property.

On May 10, 2005, plaintiffs filed suit for an injunction and damages against Dr. Dallas D. Humble, Leslie R. Humble, Chad Pickle, and P & H Enterprises. The petition claims that Dr. Dallas D. Humble, Leslie R. Humble and Chad Pickle, doing business as an unincorporated association by the name of P & H Enterprises, are the owners of property located directly across the Wall Williams Road from the Petches' property and are developing a subdivision by the name of Delta Point Subdivision thereon. The Petches allege that defendants have removed the vegetative cover on the property causing it to erode and drain onto the plaintiffs' property and deposit large volumes of silt, sand and sediment into the plaintiffs' fishing pond. The petition claims that the defendants have been negligent in failing to obtain a stormwater permit from the Louisiana Department of Environmental Quality ("LDEQ") before commencing operations and in failing to employ a stormwater pollution prevention plan.

On May 24, 2005, defendants filed an answer generally denying the allegations of the plaintiffs' petition. The answer also asserts that P & H Enterprises is not an unincorporated association but a limited liability company established under the laws of the State of Louisiana. On May 31, 2005, the defendants filed an amending answer substituting the proper name of the limited liability company, P & H Development, L.L.C., for P & H Enterprises.

On July 8, 2005, Dr. Dallas D. Humble, Leslie R. Humble, and Chad Pickle filed a motion for partial summary judgment requesting dismissal of the plaintiffs' claims against them on the basis that they are neither the owners of the property on which Delta Point Subdivision is being developed nor the developers thereof. Attached to the motion for summary judgment were affidavits of each of the three movers in which each asserts that he never had any individual ownership interest in any of the property being developed as the Delta Point Subdivision, nor performed any acts or omissions in relation to the development outside his role as an agent or employee of P & H Development, L.L.C. The articles of organization and initial report of P & H Development, L.L.C. reflecting that the movers were all members of the limited liability company since its inception on January 26, 2004, were also attached to the motion.

In opposing the motion for summary judgment, plaintiffs submitted copies of the following documents:

1. A Cash Deed dated January 27, 2004, wherein P & H Development, *502 L.L.C. purchased the property on which Delta Point Subdivision was to be developed;
2. An Act of Cash Sale dated January 14, 2005, wherein P & H Development, L.L.C., appearing as seller, sold a subdivided lot within the property purchased on January 27, 2004;
3. A Declaration of Building Restrictions and Covenants for Delta Point Subdivision dated January 25, 2004;
4. Two separate documents entitled CERTIFICATION OF AUTHORITY TO ACT FOR P & H DEVELOPMENT, L.L.C. A LIMITED LIABILITY COMPANY dated January 31, 2005, and March 7, 2005, the first of which gives Leslie R. Humble the authority to act on behalf of the company and the second of which gives that authority to both Leslie R. Humble and Dallas D. Humble.

While references to and the signatures of Dallas D. Humble, Leslie R. Humble, and Chad Pickle appear throughout these documents, they are always in their representative capacity as "members" of P & H Development, L.L.C. Plaintiffs argue that these documents reflect that one or more of the defendants seeking dismissal from the suit was a "party" to each of these transactions, thus evidencing their "active, functional involvement in the decision-making process" of P & H Development, L.L.C. Plaintiffs asserted that this "involvement" caused damage to their property giving them the right to seek redress from these individuals under La. C.C. arts. 667 and 2315.

On August 9, 2005, the trial court granted the plaintiffs' request to be allowed to amend their original petition to add P & H Development L.L.C. as a defendant. The individual defendants' motion for partial summary judgment and the plaintiffs' request for the preliminary injunction came for hearing on August 11, 2005. The parties stipulated to the issuance of a preliminary injunction ordering the defendants to comply with the requirements of the permit issued to them by the LDEQ in connection with the subdivision development. After hearing argument on the motion for summary judgment, the trial court took the matter under advisement. On November 16, 2005, the trial court issued written reasons for judgment granting the partial motion for summary judgment. A final judgment to this effect was signed the same day. The instant appeal followed.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 966(B) provides, in part, that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." Paragraph C(2) sets forth the burden of proof applicable to the motion for summary judgment, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he *503 will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On appeal, a trial court's ruling on a motion for summary judgment is reviewed pursuant to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

DISCUSSION

Assignment of Error Numbers One and Two

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Bluebook (online)
939 So. 2d 499, 2006 WL 2422914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petch-v-humble-lactapp-2006.