The plaintiffs, Darren Dugas, Glenward Dugas, and Cheryl Dugas (sometimes hereinafter collectively referred to as "the Dugas plaintiffs"), brought suit against Bayou Teche Water Works, Inc. (Bayou Teche) and its insurer, American Alternative Insurance Company, seeking to recover damages they claim to have sustained as a result of Bayou Teche's injection of brine water into an irrigation canal in Iberia Parish. The trial court granted Bayou Teche's peremptory exception of prescription and dismissed the Dugas
DISCUSSION OF THE RECORD
We must begin by noting that while the record on appeal is rather large, the evidentiary record on the issue before us is exceedingly slight. Thus, most of the background available for this court's review can only be found in the Dugas plaintiffs' August 7, 2007 petition for damages.
That petition states that Glenward and Cheryl Dugas own eighty-five acres of land along a irrigation coulee in Iberia Parish, that Glenward Dugas leases an adjoining seventy-six acre tract of land from Darren Dugas, and that both tracts are used for crawfish and rice farming. According to the specifics of the petition, the irrigation coulee is the source of irrigation water for the farming operations. The petition asserts that Bayou Teche operates a potable water treatment plant in Iberia Parish and its continuous illegal discharge of brine into the irrigation coulee has caused damages to the farm operations as well as the land itself. In their petition, the Dugas plaintiffs assert that Bayou Teche negligently caused their damages by:
The Dugas plaintiffs amended their original petition on April 30, 2010, asserting that they first became aware of Bayou Teche's "illegal discharge" in September of 2006, and that they notified Bayou Teche's Board of Directors of their complaints on October 5, 2006. They further asserted in their supplemental and amending petition that Bayou Teche continued its "illegal discharge" until November 1, 2007.
In its October 1, 2007 answer to the original petition, Bayou Teche denied all of the allegations of the Dugas plaintiffs' original petition except to acknowledge that it "is a corporation organized under the laws of the State of Louisiana," and that at all times, it had "complied with all statutes and regulations applicable to its operation." Thereafter, the pleadings become voluminous, but primarily from various deposition notices and other procedural pleadings.
Bayou Teche filed the exception of prescription now at issue before this court on October 19, 2009, and the exception came for trial on August 27, 2010. At the trial on the exception, the only evidence offered and accepted by the trial court was exhibits attached to a memorandum filed on behalf of Bayou Teche in support of its
Bayou Teche's reply memorandum was filed on April 23, 2010, and contains no attachments.
While we do note that the above exhibits constitute the only evidence offered and accepted at the hearing, the record does contain a reference to an effort by counsel for the Dugas plaintiffs to file evidence into the record. In the exchange between counsel for the Dugas plaintiffs and the trial court, counsel suggested that he wanted "to make sure that we can introduce all the exhibits." He stated that he had not done so because the exhibits were extremely voluminous, but that he wished to retain the opportunity to provide them to the trial court through its clerk. After a discussion concerning ways to reduce the size of the exhibits, the trial court stated it would leave the record open for counsel for the Dugas plaintiffs to submit the appropriate exhibits. Additionally, the trial court asked counsel exactly what exhibits would be offered and counsel suggested that they would include the depositions of Glenn Dugas and Ricky Frederick, a representative of Bayou Teche, and certain discovery responses from Bayou Teche. The record contains nothing to suggest that these exhibits were subsequently filed.
The trial court took the matter under advisement and, on June 22, 2010, issued written reasons for judgment explaining why it sustained the exception of prescription. On that same day, the trial court executed a judgment granting the exception of prescription and dismissing the Dugas plaintiffs' claims against Bayou Teche. The Dugas plaintiffs timely appealed this judgment.
The peremptory exception of prescription is provided for in La.Code Civ. P. art. 927(A)(1). When the exception of prescription is tried before the trial on the merits, "evidence may be introduced to support or controvert [the exception] when the grounds thereof do not appear from the petition." La.Code Civ.P. art. 931.
Eastin v. Entergy Corp., 03-1030, p. 5 (La.2/6/04), 865 So.2d 49, 54.
If evidence is introduced, the trial court's findings of fact are then subject to a manifest error analysis. London Towne Condo. Homeowner's Ass'n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227. If no evidence is introduced, then the reviewing court simply determines whether the trial court's finding was legally correct. Dauzart v. Fin. Indent. Ins. Co., 10-28 (La.App. 3 Cir. 6/2/10), 39 So.3d 802.
In concluding that the Dugas plaintiffs' claims had prescribed, the trial court relied on La.R.S. 9:5624, which provides that "[w]hen private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works." In reaching this conclusion, the trial court made factual findings which are not supported by the evidentiary record now before us. The trial court described Bayou Teche's corporate structure, beginnings, purpose, and operating history; asserted that the waterway at issue traverses at least forty individual tracts of land; asserted a property ownership history of the Dugas plaintiffs' properties; and asserted facts associated with the damage claims not in the evidentiary record.
In identifying the issues raised by their single assignment of error that the trial court erred in granting the exception of prescription pursuant to La.R.S. 9:5624, the Dugas plaintiffs assert that the evidentiary record contains nothing to establish that Bayou Teche is a legal entity covered by the statute; and that even if Bayou Teche could be considered as covered by the statute, nothing in the evidentiary record establishes an "acceptance of a `public works' project" or that the damages sustained were incurred for a "public purpose" or as a "necessary consequence" of the public work. Thus, they argue, the trial court erred in concluding that their claims against Bayou Teche prescribed pursuant to La.R.S. 9:5624. We agree.
As previously stated, the only evidence introduced at the hearing on the exception addressed Bayou Teche's affirmative defense relating to the Dugas plaintiffs' own negligence in causing their damages. In its answer to the Dugas plaintiffs' petition, Bayou Teche identified itself as nothing more than "a corporation organized under the laws of the State of Louisiana," and denied all other allegations of the petition. Even the argument presented at the hearing on the exception of prescription did not address the particulars of the statute and how Bayou Teche may have met those particulars. Simply put, Bayou Teche failed in its evidentiary burden.
For the foregoing reasons, we reverse the trial court's grant of an exception of prescription in favor of Bayou Teche Water Works, Inc. and remand the matter to the trial court for further proceedings. We assess all costs of this appeal to Bayou Teche Water Works, Inc.
AMY, J., concurs in the result and assigns reasons.
AMY, J., concurring in the result.
I also find a reversal and remand appropriate. Like the lead opinion, I find that the evidence introduced into the record was insufficient for the necessary factual finding regarding La.R.S. 9:5624.
However, I disagree that Bayou Teche's exhibits constituted the totality of the evidence available for the trial court's review. Instead, I find that the plaintiffs sufficiently introduced the exhibits attached to its memorandum in opposition into the record. The transcript reveals that, when the plaintiffs' attorney suggested that it could supplement its previously filed exhibits, some of which were excerpts of larger documents, discussion ensued regarding limiting the submission to pertinent documents. The trial court noted that it would leave the record open for that purpose, stating:
(Emphasis added.) I consider this passage to indicate that, even though the plaintiffs and the trial court anticipated that one of the exhibits would be supplemented, exhibits 1-3 and exhibit 4, which contained only the excerpt from Mr. Dugas' deposition, were introduced. All four exhibits appear in the record. In my opinion, the trial court acknowledged the introduction of those exhibits and was able to do so as they had previously been filed into the record as attachments to the plaintiffs' memorandum.
I write separately to explain this because I believe that the record under review includes a broader evidentiary basis than is expressed in the lead opinion. Notwithstanding this different interpretation of the record before us, I agree that a reversal is required.