Andrew A. Aucoin, III and Peggy Verret Aucoin v. Jared Landry and Allison Landry

FIRST CIRCUIT

VERSUS

JARED LANDRY, ALLISON LANDRY AND SOUTHERN FIDELITY
INSURANCE COMPANY

Judgment RendereaFEB 2 8 2025

161h
Judicial District Court
In and for the Parish of St. Mary
State of Louisiana
Suit Number 130, 269, Div. E

The Honorable Keith Comeaux, Judge Presiding

Edward P. Landry Counsel for Plaintiffs/Appellants
Megan K. Terrell
Andrew A. Aucoin, III and Peggy
Samuel W. Plauche, IV Verret Aucoin
Baton Rouge, Louisiana

Porteus R. Burke Counsel for Defendants/ Appellees
New Iberia, Louisiana
Jason Landry and Allison Landry

BEFORE: McCLENDON, C.J., LANIER, AND BALFOUR, JJ.

LANIER, J.

The plaintiffs/appellants, Andrew A. Aucoin, III and Peggy Verret Aucoin
the Aucoins), have appealed the partial final judgment of the Sixteenth Judicial

District Court, which granted the peremptory exceptions raising the objections of no

cause of action and prescription filed by the defendants/appellees, Jason Landry and

Allison Landry ( the Landrys). For the following reasons, we reverse in part and

affirm in part.

The Aucoins and Landrys own adjacent property in St. Mary Parish. The

Aucoins purchased their property in 1996, and the Landrys purchased their property
in 2004. Since about 2005, the Landrys have operated a swine farm on their property.
On October 14, 2016, the Aucoins filed an original petition for damages, alleging
therein that that the Landrys'
swine farm prohibited the Aucoins from enjoying

peaceful and undisturbed possession of their property. Specifically, the Aucoins

alleged that the Landrys negligently and/ or intentionally allowed waste material to

migrate from their swine farm onto the Aucoin property and had driven their vehicles

on the Aucoin property without the Aucoins' consent, thereby committing civil

trespass. The Aucoins further alleged that the waste contaminated waterways

adjacent to their property, generated putrid odor, and attracted pests to their property,
resulting in serious health hazards and stress on their wellbeing. The Aucoins

claimed that the trespass was ongoing. On February 13, 2017, the Aucoins filed a

motion for temporary restraining order and preliminary injunction and/or permanent
injunction against the Landrys under the aforementioned allegations.

On March 24, 2017, the Landrys filed a peremptory exception raising the
objection of no cause of action, in which they alleged that the swine farm, which had

existed for at least twelve years prior to the Aucoins' filing of their original petition,

had been in existence for more than a year prior to the suit being filed and the
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conditions of which the Aucoins complained have been in existence since the swine

farm had been in operation.' The Landrys further claimed that the Aucoins had no

cause of action due to La. R.S. 3: 3601 et. seq., known as the " Right to Farm Law,"

which states that "[
n] o agricultural operation shall be deemed to be a nuisance in any

action,11if "[ t]he agricultural operation has existed for one year or more and the

conditions or circumstances alleged to constitute a nuisance have existed

substantially unchanged since the established date of operation." La. R.S.

3: 3603( B)( 3).
On September 18, 2017, the Landrys filed a motion for summary

judgment, again arguing that their swine farm cannot be deemed a nuisance pursuant

to the Right to Farm Law.

On December 10, 2021, the Aucoins filed a second amended and restated

petition for declaratory judgment and injunctive relief.' Therein, the Aucoins added

Landry' s Lawn Service and Landscaping, LLC, and JL Farms, LLC, as defendants.

The Aucoins alleged that the Landrys had further expanded the swine farm, and

continued to dump waste and chemicals onto the Aucoin property, causing ongoing
civil trespass. Additionally, the Aucoins claimed that the Landrys' activities were

in violation of state and federal laws, and that the Louisiana Department of

Environmental Quality had issued the Landrys a Notice of Deficiency after

conducting an inspection of their property. The Notice of Deficiency was issued due

to the Landrys' dumping of wastewater without proper permits. The Aucoins also

alleged that the swine farm operations violated Section 10 of the Rivers and Harbors

Act of 1899, 33 USC § 403 and 404 of the Clean Water Act, by failing to obtain

permit authorization from the United States Army Corps of Engineers and the

1 The Landrys had not filed a peremptory exception raising the objection of prescription at this
time.

2 The Aucoins filed a first supplemental and amended petition for damages on April 27, 2017. The
primary purpose of that pleading was to add Southern Fidelity Insurance Company as a defendant
to the suit.

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Louisiana Department of Natural Resources, and La. R.S. 49:214. 30, regarding the

issuance of coastal use permits.

The Aucoins further alleged in the second amended and restated petition that

in 2014, after St. Mary Parish adopted a Unified Development Code ( UDC) which

rezoned the unincorporated land of the parish, the Landry property was rezoned as

residential, and without a permit to continue the swine farm, the Landrys were

operating the swine farm in violation of St. Mary Parish ordinances. The Aucoins

requested that the district court issue a declaratory judgment finding that the Landrys

unlawfully constructed and operated their swine farm, and also requested a

permanent injunction be issued against the Landrys to stop the flow of wastewater

onto the Aucoin property, as well as any other unlawful acts by the Landrys in

connection with their swine farm. On November 16, 2022, the Aucoins filed a

motion for partial summary judgment against all defendants, in which they restated

all of their allegations in the second amended. and restated petition.

The Landrys then filed two separate peremptory exceptions on February 13,

2023, one raising the objection of no cause of action concerning the Aucoins' request

for declaratory judgment and injunctive relief based on the St. Mary Parish UDC,

and the other raising the objection of prescription relative to their alleged violation

of St. Mary Parish' s planning, zoning, and land use laws. The matters were heard

by the district court on April 12, 2023. On May 19, 2023, the district court issued

Reasons for Judgment," stating therein that the " Defendants' Exception of No

Cause of Action" was granted in part, and that " Jared Landry' s" exception of

prescription was granted.3

3 Oral and written reasons for judgment form no part of the judgment, and appellate courts review
judgments, not reasons for judgment. Wooley v. Lucksinger, 2009- 0571 ( La. 4/ 1/ 11), 61 So. 3d
507, 572. Therefore, these " Reasons for Judgment" are neither appealable nor reviewable by this
court.

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On July 24, 2023, the Landrys filed another peremptory exception raising the

objection of no cause of action relative to any claims by the Aucoins related to the

Right to Farm Law as it applies to a nuisance in any action brought under the

provisions of La. C. C. art. 669, La. R.S. 33: 361, or La. R.S. 40: 14.

On November 7, 2023, the Aucoins filed a third amended and supplemental

petition for damages, declaratory judgment, and injunctive relief. Therein, the

Aucoins alleged that the Landrys continued to operate their swine farm, and thereby

trespassing upon and interfering with the Aucoins' enjoyment oftheir property. The

Aucoins restated all their previous claims, including the Landrys' alleged violation

of state and federal laws and operation of the swine farm without required permits.

The Aucoins alleged further that in response to the Notice of Deficiency received by
LDEQ, the Landrys attempted to obtain a Best Management Practices ( BMP) plan

to be compliant with LDEQ with respect to the disposal of solid waste, but the

Landrys' actions remained in violation of the BMP.

The petition also reiterates the Landrys' alleged violation of St. Mary Parish' s

UDC by not conforming to the residential zoning established in 2014 where the

Landry property is located. The Aucoins state that the Landrys' swine farm could

only continue to operate in the residential zone with a permit issued from the parish,

which the Landrys had not obtained. The Aucoins also claimed that the Landrys'

operations do not conform with the accepted agricultural practices of the Right to

Farm Law. The Aucoins sought a declaratory judgment finding that the Landrys
were in violation of the UDC, a permanent injunction against the Landrys' swine

farm operations to the extent that they damage the Aucoins' use and enjoyment of

their property, attorney fees, costs, and any other equitable relief.

After a hearing on November 16, 2023, the district court signed a judgment

on December 10, 202' ), granting the Landrys' exception of no cause of action

relative to any claims by [the Aucoins] related to the Right to Farm [Law] as applies

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to a nuisance in any action brought under the provisions of [La. C. C. art.] 669, [ La.]

R. S. 33: 361, [ and La.] R.S. 40: 14;" granting the Landrys' exception of no cause of

action " relative to any claims by [the Aucoins] related to the Right to Farm [ Law] as

applies to a nuisance in any action brought under the St. Mary Parish Code of

Ordinance to include but not be limited to the St. Mary Parish [ UDC];" and granting

the Landrys' exception of prescription " in response to [ the Aucoins'] request for a

Declaratory Judgment and Injunctive Relief based on St. Mary Parish Planning and

Zoning Land Use Laws and Regulations." The district court denied the exception

of prescription "
concerning the remaining tort claims" and certified that the

judgment was final for the purposes of La. C. C.P. art. 1915( B)( 1), deferring costs to

the merits.

Subsequent to the aforementioned judgment' s signing, the Landrys filed on

December 21, 2023, a motion to strike the Aucoins' third amended and supplemental

petition, which has not yet been resolved by the district court. The Aucoins appealed

the December 10, 2023 judgment on February 2, 2024.4

ASSIGNMENTS OF ERROR

The Aucoins allege the following assignments of error:

1.
The district court erred in granting the exception ofno cause of action, finding
that the Right to Farm Law applied to bar the nuisance claims, because the
district court' s decision is based on evidence not contained in or annexed to
the petition and not admitted without objection to enlarge the petition.

2. The district court erred in determining a question of fact on the exception of
no cause of action.

3.
The district court erred in failing to consider St. Mary Parish' s adoption of the
UDC in 2014 as triggering a new violation subject to a new prescriptive period

4 With respect to the pending motion to strike the third amended and supplemental petition, we
find no potential for a piecemeal appeal. The third amended and supplemental petition contains
the same requests for relief as the second amended and supplemental petition, which is on appeal.
Although the district court gives no reasons in its judgment as to why there is no just reason for
delay of the appeal, after a de novo review of the record, we find it apparent in the record that the
judgment would dismiss the same requests for relief made by the Aucoins in the third amended
and supplemental petition. Therefore, we find the district court' s La. C. C. F. art. 1915( B)
certification to be proper. See R..I Messinger, Inc. V Rosemblum, 2004- 1664 ( La. 3/ 2/ 05), 894
So. 2d 1113, 1122.

ri

under La. R.S. 9: 5625( A)( 1) because the Landrys failed to obtain a specific
use permit only required under the 2014 UDC.

4.
The district court erred in finding that La. R.S. 9: 5625( A)(3) applies only to
actions brought by a local governmental entity.

DISCUSSION

The judgment on appeal grants two exceptions of no cause of action that arise

from the same transaction or occurrence, but each exception concerns a different

theory of recovery. If there are two or more items of damages or theories of recovery
which arise out of the operative facts of a single transaction or occurrence, a partial

judgment on an exception of no cause of action should not be rendered to dismiss

one item of damages or theory of recovery. In such a case, there is truly only one

cause of action, and a judgment partially maintaining the exception is generally
inappropriate. Everything on " eels Subaru, Inc. v. Subaru South, -Inc., 616 So. 2d

1234, 1239 ( La. 1993).

Although the Landrys filed two separate partial exceptions of no cause of

action, both of which the district court granted, we find the overall result to be the

same.
As stated by Everything on R%eels Subaru, there is only one cause of action.

In the instant case, the district court maintained two separate partial exceptions of

no cause of action, each being a. partial judgment on the cause of action of nuisance.

The exceptions of no cause of action filed by the Landrys have no bearing on the
Aucoins' request for declaratory judgment and injunctive relief based on the

Landrys' alleged violation of the UDC. Therefore, we find the district court' s

judgment is an interlocutory judgment, as it does not expressly adjudicate all of the
Aucoin' s claims. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616
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So. 2d at 1241 ( La. 1993).

Appeals may be taken " from a final judgment" and from " an interlocutory

judgment which may cause irreparable injury." La. C. C. P. art. 2083. A final

judgment is one that determines the merits of the action in whole or in part. La.

C. C. P. art. 1841. However, the Code only authorizes the rendering of some partial

final judgments. La. C. C. P. art. 1915. A judgment maintaining an exception of no

cause of action and dismissing the action completely is a final judgment which is

appealable. However, a judgment partially maintaining an exception of no cause of

action is a valid partial final judgment ( and therefore appealable) only if authorized

by Article 1915. Everything on " eels Subaru, 616 So. 2d at 1239.

A district court, in considering an exception of no cause of action in inulti-

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petition asserts several demands or theories of recovery based on a single cause of

action arising out of one transaction or occurrence, or ( 2) the petition is based on

several separate and distinct causes of action arising out of separate and distindM

transactions or occurrences. If the former, the district court should overrule

exceptii.on of no cause of action when the petition states a cause of action as to arM

which is appealable in the absence of irreparable injury. Everything on Wheels

Subaru, 616 So. 2d at 1242.

The instant case resembles the first contemplated circumstance, where the

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swine farm operations). By the rule set out in Everything on Wheels Subaru, the

partial exceptions of no cause of action regarding nuisance should have been

overruled. We therefore pretermit discussion of the first two assignments of error,

with respect to the issues of the Right to Farm Law and whether the district court

erred in determining a question of fact.

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Concerning the granting of the exception raising the objection of prescription

as to the Aucoins' request for declaratory judgment and injunction, the Aucoins

argue in the third assignment of error that the prescriptive period of five years began

to run upon St. Mary Parish' s adoption of the UDC zoning ordinance in 2014. In

order to reverse a factfinder' s determinations on an exception of prescription, the

appellate court must find from the record that a reasonable factual basis does not

exist for the finding of the district court, and the appellate court must further

determine that the record establishes that the finding is clearly wrong ( manifestly

erroneous). Sanders v. Petrin, L.L.C, 2019- 1625 ( La. App. I Cir. 7/ 24/ 20), 309

So. 3d 388, 390.

The applicable prescription statute in La. R.S. 9: 5625( A)( I) I, which states:

1) All actions civil or criminal, created by statute, ordinance, or
otherwise... which may be brought by parishes, municipalities, or

their instrumentalities or by any person, firm, or corporation to
require enforcement of and compliance with any zoning restriction,
building restriction, or subdivision regulation, imposed by any
parish, municipality, or an instrumentality thereof, and based upon
the violation by any person, firm, or corporation of such restriction
or regulation, must be brought within five years from the first act
constituting the commission of the violation.

It is undisputed in the record that the UDC was enacted in 2014, and that the

Aucoins first raised the issue of the Landrys' violation of the UDC and requested

declaratory judgment and injunctive relief in their second amended and restated

petition on December 10, 2021. Therefore, the " first act constituting the commission

of the violation" would have happened in 2014 when the UDC was enacted. As the

Aucoins' claim for declaratory judgment and injunctive relief was not raised until

2021, six years later, it would seem that the claim has prescribed on its face.

5 This statute was amended, effective June 12, 2011, but Subsection A was not changed by the
amendment. See Acts 2011, Is' Ex. Sess., No. 30, § 1.

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However, we are mindful of La. C. C.P. art. 1153 in determining whether the

second amended and restated petition relates back to the original petition. In such a

case, the claim would not have prescribed. That article states:

When the action or defense asserted in the amended petition or answer
arises out of the transaction, or occurrence set forth, or

attempted to be set forth in the original pleading, the amendment relates
back to the date of filing the ornal pleading.

Entirely new and distinct causes of action, which do not arise out of the conduct

asserted in the original petition, do not relate back to the original petition. Price v.

North, 2021- 0236 ( La. App. I Cir. 10/ 18/ 21), 331 So. 3d 959, 975. In the instant

case, the original petition set forth only the theory of recovery regarding the tort •

nuisance, arising from the Landrys' alleged trespass onto the Aucoins' property. IM

the second amended and restated petition, new theories of recovery were raised: :

request for declaratory judgment, and a request for injunctive relief, arising from the

alleged violation of the UDC. Despite being new theories of recover]

however, they arise out of the sarne transaction or occurrence: the Landry' s

continued swine farm operations. As such, these newly raised claims from the

econd amended and restated petition, relate back to the original • which was

filed in 2016, two years after the five-year prescriptive period

9: 5625( A)( 1) began, and have not prescribed. Therefore, the district court was

manifestly erroneous in granting the peremptory exception raising the objection of

prescription " in response to [ the Aucoins] request for a Declaratory Judgment and

Injunctive Relief based on St. Mary Parish Planning and Zoning Land Use Laws and

Regulations."

The contention in the fourth assignment of error that the district court' s

finding that La. R.S. 9: 5625( A)(3) applies only to actions brought by a local

governmental entity, that " finding" is only contained in the " Reasons for Judgment"

of May 19, 2023, and is not found in the December 10, 2023 judgment before this

1A

court on appeal. Oral and written reasons for judgment form no part of the judgment,

and appellate courts review judgments, not reasons for judgment. Wooley v.

Lucksinger, 2009- 0571 ( La. 4/ 1/ 11), 61. So. 3d 507, 572. Therefore, the fourth

assignment of error is not properly before us.

The judgment of the Sixteenth Judicial District Court, with respect to its

granting of the peremptory exception raising the objection of no cause of action

relative to any claims related to the Right to Farm Law as it applies to a nuisance in

any action brought under La. C. C. art. 669, La. R.S. 33: 361, or La. R.S. 40: 14, is

reversed. The judgment' s granting of the peremptory exception raising the objection

of no cause of action relative to any claims related to the Right to Farm Law as it

applies to a nuisance in any action brought under the St. Mary Parish Code of

Ordinance to include but not be limited to the St. Mary Parish Unified Development

Code, is reversed. The judgment' s granting of the peremptory exception raising the

objection of prescription in response to the request for declaratory judgment and

injunctive relief based on the St. Mary Parish Planning and Zoning Land Use Laws
and Regulations is reversed. The judgment is affirmed in all other respects. All

costs of this appeal are assessed to the defendants/ appellees, Jared Landry and

Allison Landry.
qf I

101 ED 1 1 #, a W,

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