Markerson v. Composite Architectural Design Sys., LLC

255 So.3d 1065

Chris MARKERSON, Jr. and Amy Markerson

v.COMPOSITE ARCHITECTURAL DESIGN SYSTEMS, LLC, 2long, LLC, the City of Gonzales and Barney Arceneaux

NO. 2017 CA 1252

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JULY 10, 2018

Christopher T. Cascio, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Composite Architectural Design Systems, LLC

Kim Segura Landry Gonzales, Louisiana, Counsel for Defendant/Appellant, 2Long, LLC

Mary Anne Wolf, Chelsea A. Payne, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees, Chris Markerson, Jr. and Amy Markerson

BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

THERIOT, J.

Composite Architectural Design Systems, LLC (CAD) and 2Long, LLC (2Long) appeal the judgment of the Twenty–Third Judicial District Court that found in favor of Chris Markerson, Jr. and Amy Markerson. 2Long has also filed a peremptory exception of prescription with this Court. For the following reasons, we deny the peremptory exception, affirm the judgment in part, and reverse in part.

FACTS AND PROCEDURAL HISTORY

In May of 2014, Chris and Amy Markerson purchased a home located in Gonzales, Louisiana. At the time of the purchase, an adjacent lot contained vacant buildings zoned by the City of Gonzales (the City) as "B–1," or a limited business district.¹

On August 28, 2014, 2Long purchased the adjacent lot and was informed by real estate broker Melissa Warren of the zoning restriction at the time of the closing on August 29, 2014. Ms. Warren advised Todd Long, a member and co-owner of 2Long, that his anticipated business operations on the property may not fall within the zoning restrictions and that he should forward any questions he had regarding the issue to the City. In the weekend following the closing, CAD, who began leasing the disputed property from 2Long, moved its business onto the premises. CAD, an aluminum composite material (ACM) fabricator, was advised by Mr. Long to get in touch with the City regarding zoning restrictions.

CAD was first issued a "retail occupational" business license from the City on September 4, 2014, then renewed the license before its expiration on November 11, 2014. The Markersons alleged that CAD operated its business all day and all night, using a rotary saw to cut sheets of metal, which was extremely loud. They further alleged that bright lights from trucks at CAD's business shone directly into their bedroom window through the night. The Markersons claimed to have recorded twenty-five instances of the disruptive activities from November 2014 to April 2015.

Mr. Markerson alleged he had advised the City that CAD was in violation of the zoning ordinance, claiming the noise to be a nuisance, and formally requested that the City investigate and rectify the situation. The City subsequently took sound measurements on the disputed property. On January 9, 2015, Clay Stafford, clerk for the City, informed Mr. Markerson that CAD was made aware of the Markersons' complaints and that CAD explained the noise was due to renovations that were being made on the property. Mr. Stafford further explained that CAD assured the City that the renovations had been completed, and upon the City's measuring the sound levels on the disputed property, the noise "barely registered." The Markersons claimed the City took no further action to enforce the zoning restriction.

On June 8, 2015, the Markersons filed a petition for injunction and damages, or, in the alternative, for a writ of mandamus. The Markersons made the aforementioned allegations and further alleged that the activities of 2Long and CAD constituted a nuisance, causing a permanent diminution of their value and enjoyment of their property. The Markersons petitioned the trial court to enjoin 2Long and CAD from further conducting its business of fabricating ACM at the disputed property and to award damages for nuisance. In the alternative, the Markersons petitioned for a writ of mandamus against the City and its mayor to enforce its zoning ordinances with respect to the disputed property.

On October 5, 2015, the Markersons filed a supplemental and amending petition for damages against 2Long and CAD, in which they claimed both parties had violated the Louisiana Unfair Trade Practices and Consumer Protection Law (LUTPA), La. R.S. 51:1401, et seq. Specifically, the Markersons claimed that 2Long "knowingly purchased a B–l zoned property with the intention of leasing the property to [CAD], and knew or should have known that [CAD]'s business operations violated the zoning ordinances." As to CAD, the Markersons claimed "[CAD] misrepresented the extent of its business operations by representing to [the City] that the loud rotary saw used in its fabrication business was only used temporarily during renovations, when in fact the loud saw was and continues to be used to fabricate products." Pursuant to La. R.S. 51:1409(A), the Markersons prayed for attorney fees.

On November 12, 2015, the Markersons filed a motion for partial summary judgment to permanently enjoin 2Long and CAD from using the disputed property in violation of the zoning ordinance. In a judgment and order signed January 20, 2016, the trial court granted the partial summary judgment, finding CAD to be in violation of the City's zoning ordinance and enjoining 2Long and CAD from conducting business on the disputed property in violation of the zoning ordinance.² The trial court further issued a writ of mandamus against the City to enforce the zoning ordinance on the disputed property.

In a motion to set status conference and trial date filed on March 24, 2016, the Markersons claimed that despite the partial summary judgment, injunction, and writ of mandamus, 2Long and CAD continued to violate the City's zoning ordinance in contravention of the trial court's order with the same activities of loud noise and bright lights both day and night, including weekends. After a bench trial, the trial court signed a judgment on May 10, 2017, finding 2Long and CAD liable in solido to the Markersons for nuisance violations, violations of the trial court's injunction order, and pursuant to LUTPA. Chris and Amy Markerson were each awarded $20,000.00 in damages for the nuisance violations and violation of the injunction, with interest and costs. Pursuant to LUTPA, the trial court awarded to Chris Markerson $1,049.99 in costs for surveillance fees and also awarded reasonable attorney's fees to the Markersons, which were to be determined by a subsequent show cause hearing.³ Both 2Long and CAD have appealed.

Subsequent to the appeal, 2Long filed a peremptory exception of prescription with this Court, claiming that the Markersons's supplemental and amending petition for injunction and damages, which raised LUTPA as a cause of action, was prescribed on its face pursuant to La. R.S. 51:1409.

ASSIGNMENTS OF ERROR

2Long has cited the following assignments of error:

1. The trial court committed manifest error in finding the Markersons's claims fall under the protection of LUTPA as set forth in La. R.S. 51:1409.

2. The trial court committed manifest error in determining the actions of 2Long and CAD were a violation of LUTPA under La. R.S. 51:1401, et seq.

3. The trial court's finding of an ascertainable loss of money by the Markersons as required under La. R.S. 51:1409 was manifest error.

4. The trial court committed manifest error in its evidentiary rulings by:

A. Considering evidence not introduced into the record at trial.

B. Accepting the Markersons's exhibit P–21 into evidence when the Markersons failed to lay a foundation and authenticate each video included on the exhibit.

C. Accepting Exhibit P–22 into evidence as a summary when the underlying materials were not so voluminous they could not be conveniently examined in court and by not requiring the evidence being summarized to be admitted.

D. Striking the police officers listed as witnesses by 2Long in the pretrial order.

5. The trial court committed manifest error in finding that the fabrication operations of CAD were a nuisance under La. C.C. art. 667.

6. The trial court's award of $20,000.00 to each plaintiff for loss of use and enjoyment of property, stress and anxiety as a result of the nuisance violations was manifest error.

7. The trial court committed legal error by expanding the pleadings to render a judgment of contempt against 2Long.

8. The trial court committed manifest error in holding 2Long and CAD solidarily liable under La. C.C. art. 2324.

9. The trial court committed legal error by failing to apportion fault to 2Long and CAD as required by La. C.C. art. 2323.

10. The trial court's award of attorney fees to the Markersons was manifestly erroneous and legal error.

CAD has cited the following assignments of error:

1. The trial court committed legal error in determining the actions in finding Chris Markerson was entitled to damages and attorney fees pursuant to LUTPA.

2. The trial court erred in finding Chris Markerson sustained an ascertainable loss of money as a result of the alleged unfair trade practices as required under La. R.S. 51:1409.

3. The trial court erred in finding that CAD's business operations constituted a nuisance under La. C.C. art. 667.

4. The trial court erred in making an award for mental anguish when there was no actual damage to property or evidence of psychic trauma, and further erred by making said award excessive.

5. The trial court erred in finding CAD guilty of contempt when a rule to show cause stating the facts alleged to constitute the contempt has not been filed or served.

PEREMPTORY EXCEPTION OF PRESCRIPTION

Louisiana Code of Civil Procedure article 2163 states:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears in the record.

If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be

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