Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church

171 So. 3d 1136
CourtLouisiana Court of Appeal
DecidedJune 24, 2015
DocketNo. 2015-CA-0070
StatusPublished
Cited by2 cases

This text of 171 So. 3d 1136 (Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church) 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
Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 171 So. 3d 1136 (La. Ct. App. 2015).

Opinion

DENNIS R. BAGNERIS, SR., Judge.

| t Plaintiffs/appellants, S & R Properties Investments and American Empire Surplus Lines Insurance Company, appeal the judgment in favor of defendant/appellee, Fellowship Missionary Baptist Church, finding that the church was not liable for a fire that resulted in damages to S & R’s property and the property of American Empire’s insured. We find that the judgment was not manifestly erroneous or clearly wrong. Accordingly, the judgment is affirmed.

FACTS/PROCEDURAL HISTORY

The New Orleans Fire Department was called on January 7, 2011, to suppress a fire at property owned by the Fellowship Missionary Baptist Church (hereinafter, FMBC or “the church”). The property encompassed the church building located at 2101 Prytania Street and a residential house located at 2113 Prytania Street. FMBC had not conducted worship services on the property since the church was damaged by Hurricane Katrina in 2005.

li>The New Orleans Fire Department, the State Fire Marshall’s Office, and the Bureau of Alcohol, Tobacco, and Firearms investigated the fire. All agencies agreed that the cause or the origin of the fire could not be conclusively determined.

Notwithstanding efforts to contain the fire, S & R and American Empire’s insured, Show and Tell of New Orleans, L.L.C., sustained water and fire damages to their nearby properties, along with the owners of the Magnolia Mansion. S & R, American Empire, as the subrogated property insurer of Show and Tell, and the owners of the Magnolia Mansion filed complaints against FMBC.1 The aggregate complaints essentially claimed that FMBC was negligent for its alleged inattentiveness in maintaining its property in a safe and secure manner and its alleged failure to adequately secure the church to prevent vagrants, who the complainants claimed caused the fire, from habitually entering and inhabiting the church. The complaints also contended that the building had been in a state of disrepair; that the property had been adjudged a public nuisance; and had been cited as blighted property by the City of New Orleans in September and November of 2009.

The parties agreed to a bi-ficurated jury trial on the issues of liability and damages. Trial commenced as to liability only on July 28, 2014.2 A summary of pertinent trial testimony included the following:

[ ^Raymond Washington, an inspector with the New Orleans Fire Department, investigated the fire. He testified that the cause and the origin of the fire were undetermined. Inspector Washington confirmed that fire investigators from the Louisiana State Fire Marshall’s Office and the Bureau of Alcohol, Tobacco, and Fire[1139]*1139arms, also reached the same conclusion. He was unable to substantiate any statements that vagrants had been inside the church. None of the witnesses he spoke to reported seeing persons entering or leaving the church at the time of the fee.

John Gauthier, the innkeeper at the neighboring Henry Howard House, testified regarding two occasions when he had entered the church. The first time he accessed the church, he entered through an opening in a door on the main floor. He saw clothes, food wrappers, and empty beer bottles — which indicated to him that homeless people had been inside the church. The second time he entered the church, he was with Myrna Keys, the church’s real estate agent. This entry happened approximately a year before the fee. He conceded that on this second entry, the opening he had previously gone through had been secured. Mr. Gauthier also admitted that since the second entry, he never again saw anyone enter the church building. Mr. Gauthier did not see anyone leaving the church’s premises on the night of the fire.

Pinar Aiptunaer, a frequent Henry Howard House guest, testified that homeless people could squeeze through a back gate to enter the church’s property. She believed that the church had a missing window located above its back door |4and that milk crates were positioned below this missing window. She surmised that homeless persons used these crates to gain entry inside the church. On cross-examination, she admitted that she never saw vagrants or the homeless inside the church nor did she see them break into the church. Ms. Aiptunaer also never actually saw anyone use the milk crates to enter the church through the alleged missing window. Ms. Aiptunaer was not in town at the time of the fee.

Myrna Keys, the church’s real estate agent, frequently showed the church over the years. She testified that when the property was first listed in 2008, she received calls that unauthorized persons were getting into the church building. She added, however, that church members quickly responded and took care of the problems she identified. Ms. Keys maintained that by mid-2009, the building was totally secured. In particular, she did not receive any more calls from anyone at Henry Howard House regarding unauthorized entries. Ms. Keys testified that she saw no evidence of people being able to enter the church for about a year and a half before the fire.

The video-taped deposition of Matt Pa-tin, a retired police officer who worked at Henry Howard House, was introduced into evidence. Mr. Patín said he had called the police to have vagrants removed from outside the church’s premises sometime in early December 2010. He did not see any more vagrants outside the property after that time.

Mr. Patín testified that he saw the fire. He said he saw flames coming simultaneously from the church as well as a dumpster that was located on S & R’s | Bproperty. Mr. Patín did not observe any vagrants entering or leaving the church or its property on the evening of the fee.

The plaintiffs’ fire sciences consultant expert, George Casellas, opened his investigation on June 12, 2012, about a year and a half after the fire. He stated that a triangle of fuel, oxygen, and ignition is needed to start a fire. Mr. Casellas explained that the wooden pews, books, and paper inside the church created a large fuel source; and that a hole in the church steeple provided the oxygen. He added that because the church lacked environmental controls as its utilities had been shut-off, the wood within the church would be drier, which would make a fee burn with greater intensity. Mr. Casellas ac[1140]*1140knowledged that the ignition source was unknown. However, he said the fire was probably caused by human intervention and that the likely source was vagrants based on reports he read that vagrants had previously been observed on the church’s premises. Mr. Casellas did not believe that flames came from the dumpster. He theorized that Matt Patín, who saw flames in the S & R dumpster, may have mistaken the flames for reflections that came from the church’s stained glass windows.

On cross-examination, Mr. Casellas admitted that he had no physical evidence that vagrants started the' fire and that none of the reports he reviewed actually placed vagrants inside the church around the time of the fire. He also agreed that the wooden pews within the church were no different than wood inside similar structures, such as other churches and courthouses. Mr. Casellas also conceded that he did not physically examine the dumpster or conduct any tests to ^support his theories as to the fire’s cause or origin arid that no fire code provision required the church to have environmental controls.

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171 So. 3d 1136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/show-tell-of-new-orleans-llc-v-fellowship-missionary-baptist-church-lactapp-2015.