King v. The Town of Clarks

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DEMECIA KING Respondent v. THE TOWN OF CLARKS AND MAYOR CHAD COATES ANDBOARD OF ALDERMAN, CHRISSY JOLLY, SHAWNGUINN, JASON MORRIS, MARGIE FISHER, PATSYFISHER IN THEIR OFFICIALCAPACITY AND XYZINSURANCE COMPANY Applicants

No. 53, 987-CW

Court of Appeals of Louisiana, Second Circuit

November 17, 2021

On Application for Writs from the Thirty-Seventh Judicial District Court for the Parish of Caldwell, Louisiana Trial Court No. 28, 642 Honorable Ashley Paul Thomas, Judge

HUDSON, POTTS, & BERNSTEIN, LLP By: Jay P. Adams Sara G White Counsel for Applicants

LAW OFFICE OF CAROL D. POWELL LEXING & ASSOCIATES, PLC By Carol D. Powell-Lexing Counsel for Respondent

Before MOORE, PITMAN, STONE, THOMPSON, and ROBINSON, JJ.

THOMPSON, J.

Plaintiff Demecia King, owned a home in the Town of Clarks, and beginning in 2012, the house flooded with sewer water when there was a significant rainfall. After several flooding events over the years, she filed suit in August, 2016, against the town, its mayor, and the town's aldermen, alleging that her home had been inundated with sewer water due their negligence in the design and/or maintenance of the drainage system. The defendants filed a motion for summary judgment and argued that her claims prescribed one year after she knew or should have known about the flooding in her home. Because plaintiff's petition only alleged acts that occurred one year prior to filing suit, the trial court found that there was a question of fact as to prescription, and denied defendants' motion for summary judgment. As a result, defendants filed a writ application. For the reasons set forth below, we find that the plaintiff's claims are prescribed and reverse the trial court's ruling.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Demecia King ("King"), owned a home in the Town of Clarks that had a manhole located six feet from her front door. King alleges that the town owns, operates and maintains a sewage disposal system that serves the town via the manhole in front of her home. King claims that every time there was a significant rainfall, sewage water would overflow from the toilets and bathtubs in her home onto her floors. She contends that the overflows caused damage to the floors, walls, baseboards, and furnishings and resulted in mold, mildew, and an overwhelming stench in her home. King argues that she suffered from health problems associated with the mold, including allergies, headaches, loss of sleep, emotional distress, mental anguish, irritation, anxiety, and discomfort. After several flooding events from 2012 forward, King eventually filed suit on August 19, 2016, against the defendants, Town of Clarks, Mayor Chad Coates, and Board of Aldermen members, Chrissy Jolly, Shawn Gunn, Jason Morris, Margie Fisher, and Patsy Fisher. King asserted in her petition that when there was a significant rainfall, sewage from the manhole would flood her home. In her petition for damages, King asserted that due to the town's failure to correct its improperly functioning sewer system, her home has flooded six times over a five-year period, specifically "twice the year of 2015 during the months of April 2015 and November 2015 and with the most recent problem occurring on March 10, 2016." Discovery ensued.

King testified at her deposition that she began experiencing the flooding in her home in 2012 and that she spoke with the mayor about the problem. She testified that in 2013, 2014, and 2015, she experienced flooding in her home two to three times a year and spoke with the mayor about the problem each year. She contends that when she complained about the problem to the mayor, she was told that the town was working on getting a grant to fix the lift station on Ouachita Avenue, which was located near her house.

King provided copies of text message exchanges with Mayor Chad Coates ("Coates") in 2016 about the flooding, as part of her deposition. The record includes text messages from April 12, 2016, from Coates stating: "I'm meeting with our engineer this evening. I'm going to get him to shoot a line and see where the problem is," and "[a]lso I'm going to use all of the grant this year to redo the lift station near your house. That will help keep the water from backing up. I will do everything I can to make sure this doesn't happen again!!!" Another text message from Coates states, "[w]e need a relief pond or something along that line so that water will have somewhere to go when we get heavy rains. I'm gonna do some research and figure out where and how we can make one. That would I hope fix the problem." King also provided copies of various work orders from the town from 2016, where Thomas Benson ("Benson"), the town's water sewer supervisor, tried various methods to repair or improve the flooding reported at King's address.

In response to King's petition, the defendants filed a motion for summary judgment on the basis that King had filed her petition almost four years after she first became aware of the flooding and that her claim was now prescribed. In support of their motion, the defendants attached King's deposition, in which she estimated that between 2012 and 2018, the flooding in her home happened 10 or 12 times. She testified that the flooding was the same each time there was a significant rainfall. King opposed the motion for summary judgment, arguing that the flooding she experienced was a continuous tort or, in the alternative, that her communications with the mayors of the town were sufficient to act as an acknowledgment, which would suspend the running of prescription.

The trial court found that the flooding began in 2012 and that King was aware of it in 2012. It held that the one-year prescriptive period applies to this matter and that any acts that occurred prior to one year before the filing of the lawsuit had prescribed. The court further found that the flooding was not a continuous tort. However, the trial court ultimately denied the summary judgment based on the fact that the petition, on its face, alleged acts that occurred within one year of the filing of suit and, thus, there was a genuine issue of fact as to prescription. This writ application by the defendants followed.

DISCUSSION

The defendants raise only one assignment of error, namely that King's claims have prescribed. Specifically:

Assignment of Error: The trial court erred in denying defendants' motion for summary judgment since the petition for damages was filed well over a year after plaintiff had constructive knowledge sufficient to begin the running of prescription.

Defendants argue that King's claims are subject to a one-year prescriptive period that began to run in 2012, when she was first put on notice of the flooding in her home, and thus all of her claims are prescribed. King contends that the flooding in her home is a continuous tort that began in 2012 or, in the alternative, that Coates' text messages are an acknowledgment sufficient to interrupt prescription.

Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by motion for summary judgment. Hogg v. Chevron USA, Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 997; Newsome v. City of Bastrop through Jones, 51, 752 (La.App. 2 Cir. 11/15/17), 245 So.3d 248. Appellate courts review motions for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So.3d 791; Bank of Am., N.A. v. Green, 52, 044 (La.App. 2 Cir. 5/23/18), 249 So.3d 219; Newsome, supra. We view the record and all reasonable inferences to be drawn from it in the light most favorable to the nonmoving party. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, rehearing denied, 04-0806 (La. 9/24/04), 882 So.2d 1134; Coleman v. Lowrey Carnival Co., 53, 467 (La.App. 2 Cir. 4/22/20), 295 So.3d 427, writ denied, 20-00594 (La. 9/23/20), 301 So.3d 1179.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880; Driver Pipeline Co. v. Cadeville Gas Storage, LLC, 49, 375 (La.App. 2 Cir. 10/1/14), 150 So.3d 492, writ denied, 14-2304 (La. 1/23/15), 159 So.3d 1058. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A genuine issue is one about which reasonable persons could disagree. Hines, supra; Franklin v. Dick, 51, 479 (La.App. 2 Cir. 6/21/17), 224 So.3d 1130. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co., 51, 320 (La.App. 2 Cir. 5/17/17), 223 So.3d 614, writ denied, 17-01251 (La. 10/27/17), 228 So.3d 1230. A material fact is one that potentially ensures or precludes recovery, affects the ultimate success of the litigant, or determines the outcome of the dispute. Hines, supra; Franklin, supra.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support...