Catherine J. Estis, Samuel C. Estis, and Thuy P. Estis v. Clifton L. Mills, Kimberly M. Mills, Twin Stalks, Inc., Cole Mills Planting, Inc., Little Angola Payroll Partnership, and CLAK, Inc.

Judgment rendered August 14, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 52,820-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

CATHERINE J. ESTIS, SAMUEL Plaintiffs-Appellants
C. ESTIS, AND THUY P. ESTIS

versus

CLIFTON L. MILLS, KIMBERLY Defendants-Appellees
M. MILLS, TWIN STALKS, INC.,
COLE MILLS PLANTING, INC.,
LITTLE ANGOLA PAYROLL
PARTNERSHIP, AND CLAK, INC.

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Richland, Louisiana
Trial Court No. 45,956-B

Honorable Will R. Barham, Judge

*****

BREAZEALE, SACHSE & WILSON, LLP Counsel for Appellants
By: Steven B. Loeb
John T. Andrishok
Jacob E. Roussel

COTTON, BOLTON, HOYCHICK & Counsel for Appellees
& DOUGHTY, L.L.P.
By: John B. Hoychick

*****

Before MOORE, PITMAN, and THOMPSON, JJ.

PITMAN, J., concurs in the result.

THOMPSON, J.

This matter arises from the killing of a ten month old German

Shepherd puppy for which defendants allege immunity under the provisions

of La. R.S. 3:2654, as defendants assert the puppy was harassing his horses

when he shot and killed it. Plaintiffs, Catherine Estis, Samuel Estis, and

Thuy Estis (hereinafter “Plaintiffs”), appeal the trial court’s judgment

granting the motion for summary judgment filed by defendants, Clifton and

Kimberly Mills (hereinafter “Defendants”), asserting there remain genuine

issues of material fact and that Defendants waived any immunity by their

failing to affirmatively plead such in their answer or any subsequent

pleadings. For the reasons set forth below, we reverse and remand for

further proceedings.

FACTS AND PROCEDURAL HISTORY

On September 11, 2017, Plaintiffs filed suit in the 5th Judicial District

Court seeking damages arising out of the shooting, killing, and disposal of

their ten-month-old German Shepherd puppy, Bella. Specifically, Plaintiffs

allege that Defendant Clifton Mills shot the German Shepherd puppy, did

not disclose to them the dog had been shot, and dumped her body over ten

miles away in Bayou Lafourche. As a matter of procedural history of this

case but not currently before this Court, Plaintiffs also sought injunctive

relief claiming that Defendants were operating commercial activities on their

property in violation of property restrictions which limit the use of

Defendants’ property to residential purposes.

An exception of prescription as to the property restrictions and an

answer to all allegations were filed by Defendants on October 16, 2017. On

January 26, 2018, the trial court granted the exception of prescription filed

by Defendants and an exception of no cause of action as to the other

defendants,1 resulting in the dismissal of Plaintiffs’ claims for property

restriction violations. The dismissal of those claims is not at issue in this

appeal.

On June 28, 2018, the Defendants filed a motion for summary

judgment. Arguments on the motion were heard on October 1, 2018, and the

trial court took the arguments of the parties under advisement. On

December 6, 2018, the trial court issued its judgment granting summary

judgment in favor of Defendants. There were no oral or written reasons for

judgment given by the trial court in support of judgment. Plaintiffs appeal

the trial court’s judgment.

DISCUSSION

Immunity is afforded to anyone killing a dog under the specific and

limited circumstances set forth under La. R.S. 3:2654, which provides:

Any person finding any dog not on the premises of its owner,
harborer, or possessor, which is harassing, wounding, or killing
livestock, may, at the time of finding the dog, kill him, and the
owner shall not be able to sustain any action for damages against
the person killing the dog.

The trial court granted the motion for summary judgment filed by

Defendants. In their motion for summary judgment, Defendants asserted

they fell within the immunity afforded by La. R.S. 3:2654 as it was alleged

the puppy was shot while harassing the horses owned by Defendants.

Plaintiffs argue the immunity afforded by La. R.S. 3:2654 must have been

1
In Plaintiffs’ petition, other named Defendants include Twin Stalks, Inc., Cole
Mills Planting, Inc., Little Angola Payroll Partnership, and Clark, Inc. The
aforementioned parties have since been dismissed from the suit.

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affirmatively pled by Defendants and that any such immunity had been

waived by failing to assert the affirmative defense in either the original

answer or any subsequent pleading. As such, Plaintiffs contend in the

absence of the immunity protections asserted by Defendants the motion for

summary judgment could not otherwise have been granted and therefore

should be reversed. The Court agrees.

Plaintiffs contend that La. R.S. 3:2654 is an immunity statute by

comparing La. R.S. 3:2773(D), which provides that “[a]ny citizen or officer

may kill any dangerous or vicious dog.” Accordingly, the purpose of La.

R.S. 3:2773(D) is to provide “statutory immunity.” Hebert v. Broussard,

04-485 (La. App. 3 Cir. 11/10/04), 886 So. 2d 666, 670. Thus, Plaintiffs

claim that Defendants were barred from raising La. R.S. 3:2654 as a basis

for summary judgment

Immunity is an affirmative defense that must be specifically pleaded

by a defendant or it is deemed waived. Moresi v. State Through Dept. of

Wildlife & Fisheries, 90-0205 (La. 09/06/00), 567 So. 2d 1081, 1086; Walls

v. Am. Optical Corp., 98-0455 (La. 09/08/99), 740 So. 2d 1262, 1267. The

record does not include any request by Defendants to amend their pleadings

to assert La. R.S. 3:2654 as an affirmative defense. During oral arguments,

Defendants’ counsel conceded that he could have added the affirmative

defense set forth in La. R.S. 3:2654 but thought that he had pleaded enough

to “put them on notice . . . [and] at that point I did not know the statute

existed.”

La. C.C.P. art. 1005 requires that the answer set forth matters

constituting an affirmative defense. An affirmative defense is a defense to

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the action which will have the effect of defeating plaintiff’s demand on its

merits. Webster v. Rushing, 316 So. 2d 111, 114 (La. 1975); Shrader v. Life

General Sec. Ins. Co., 588 So. 2d 1309, 1314 (La. App. 2 Cir. 1991), writ

denied, 592 So. 2d 1317 (La. 1992). Affirmative defenses must be

specifically pleaded. La. C.C.P. arts. 1003, 1005, as noted by this Court in

Cooper v. Borden, Inc., 30,292 (La. App. 2 Cir. 02/25/98), 709 So. 2d 878,

881 (a defendant must specifically plead affirmative defenses in its answer).

The purpose of the requirement for pleading an affirmative defense is to give

fair and adequate notice of the nature of the defense so that the plaintiff is

not surprised. Webster, supra at 114.

Defendants contend that La. R.S. 3:2654 is a negative defense rather

than an affirmative defense. An affirmative defense is distinguishable from

a negative defense in that a negative defense seeks to refute an essential

allegation of the plaintiff’s petition. Johnsa v. Edwards, 582 So. 2d 1280,

1283 (La. 1991); Keller v. Amedeo, 512 So. 2d 385, 386, 388 (La. 1987);

Alexander v. Cornett, 42,147 (La. App. 2 Cir. 07/11/07), 961 So. 2d 622,

631, writ denied, 07-1681 (La. 11/02/07), 966 So. 2d 603. By contrast, an

affirmative defense raises new matters which, assuming the allegations in

the petition to be true, constitute a defense to the action and will have the

effect of defeating plaintiff’s demand on its merits. Keller, supra at 387;

Webster, supra at 114; Cornett, supra at 631.

Defendants also argue that their answer clearly indicated that the

German Shepherd puppy was attacking Defendants’ horses, which was the

reason for killing the dog. Paragraph 15 of Defendants’ answer reads, “The

allegations . . . are denied, except to admit that Clifton L. Mills shot a

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German Shepherd that was attacking his horses.” According to Defendants,

the brief “clearly apprised the plaintiffs of the reasons that he shot the dog –

because it was attacking his horses, which is the entire basis of RS [sic]

3:2654.” Furthermore, Defendants rely on the cases of Paxton v. Ballard,

289 So. 2d 85 (La. 1974), and Cox v. W. M. Heroman & Co., Inc., 298 So.

2d 848 (La. 1974), noting that it is not necessary to label the defense.

Defendants maintain that Plaintiffs were put on notice. We disagree that

such an assertion is tantamount to asserting the affirmative defense of the

immunity protection possible under the statute.

Defendants’ reliance on Paxton and Cox is misplaced, as Paxton

simply solved the decades-long split between the circuits of whether stating

that an accident “due solely to the negligence of the plaintiff” was enough to

plead contributory negligence as an affirmative defense. See Paxton, supra

at 87-88. The Cox case is factually specific surrounding subrogation and

extinguishment of debt and therefore not applicable. Cox, supra at 855.

In the absence of a viable immunity defense the trial court would have

before it a claim for damages for the killing and disposal of a family pet

against Defendants who admit to those allegations. As Defendants failed to

affirmatively plead La. R.S. 3:2654, those protections are waived. As such,

genuine issues of material fact remain relative to the motion for summary

judgment put forth by Defendants. We do not therefore reach the issue of

whether there were threshold actions by the German Shepherd puppy to

warrant its killing and any assertion of immunity in response thereto.

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CONCLUSION

For the reasons set forth above, the trial court’s judgment is reversed,

and this matter is remanded for further proceedings consistent with this

opinion. Costs of this appeal are assessed to Defendants.

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