Patrick E. Phillips, Jr. v. G & H Seed Company, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-924

PATRICK E. PHILLIPS, JR., ET AL.

VERSUS

G & H SEED COMPANY, INC., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 00-C-2220-D
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Elizabeth A. Pickett,
Judges.

Saunders, J., dissents and assigns written reasons.

AFFIRMED.

Jerold Edward Knoll
Triston Kane Knoll
The Knoll Law Firm
P. O. Box 426
Marksville, La 71351
(318) 253-6200
Counsel for Intervenor/Appellee:
Georgia V. Bernard
James E. Bernard, Jr.

Gary A. Bezet
Robert E. Dille
Terrence D. McCay
Carol L. Galloway
Allison N. Benoit
Kean, Miller, Hawthorne, D’Armond,
McCowan & Jarman, L.L.P.
P. O. Box 3513
Baton Rouge, LA 70821-3513
(225) 387-0999
Counsel for Defendants/Appellees:
Bayer CropScience L.P.
Michael Redlich
G & H Seed Company, Inc.
Crowley Grain Drier, Inc.
Nolan J. Guillot, Inc.
Mamou Rice Drier and Warehouse, Inc.

Gerald Charles deLaunay
Attorney at Law
P. O. Box 53597
Lafayette, LA 70505
(337) 237-8500
Counsel for Defendant/Appellee:
Seafood International, Inc., et al.

Patrick C. Morrow
Morrow, Morrow, Ryan & Bassett
P. O. Box 1787
Opelousas, LA 70570
(337) 948-4483
Counsel for Defendant/Appellee:
Class Counsel

Michael T. Pulaski
Allen V. Davis
McCranie, Sistrunk, Anzelmo, Hardy,
Maxwell & McDaniel, PC
195 Greenbriar Boulevard, Suite 200
Covington, LA 70433
(504) 831-0946
Counsel for Defendant/Appellee:
Allianz Global Risks US Insurance Company

Elwood C. Stevens, Jr.
Attorney at Law
P. O. Box 2626
Morgan City, LA 70381
(504) 384-8611
Counsel for Plaintiffs/Appellants:
Larry and Brenda Judice

André F. Toce
The Toce Firm, APLC
P. O. Box 158
Broussard, LA 70518-0158
(337) 233-6818
Counsel for Plaintiffs/Appellees:
Larry and Brenda Judice, Individually,
and as President and Secretary of
Larry French Market, Inc.

Carl M. Duhon
Attorney at Law
P. O. Box 52566
Lafayette, LA 70505
(337) 237-9868
Counsel for Plaintiff/Appellee:
Patrick E. Phillips, Jr.

Terrence D. McCay
Attorney at Law
One Lakeshore Drive, Suite 1600
Lake Charles, LA 70601
(337) 430-0350
Counsel for Defendant Appellee:
G & H Seed Company, Inc.
Bayer CropScience, L.P.
Michael G. Redlich
Nolan J. Guillot, Inc.
Crowley Grain Dryer, Inc.
Mamou Rice Drier and Warehouse, Inc

DECUIR, Judge.

The case before us addresses the one year liberative prescription period for

delictual actions codified at La.Civ. Code art. 3492. This litigation is related to a

class action suit filed by numerous crawfish farmers who were allegedly adversely

affected by the use of the pesticide Icon in rice fields in South Louisiana, which fields

are also used as, or are located in close proximity to, the crawfish farmers’ ponds.

See West v. G. & H. Seed Co., 01-1453 (La.App. 3 Cir. 8/23/02), 832 So.2d 274, for

a thorough description of the factual background of this case.

In the instant suit filed on May 24, 2000, Patrick Phillips and Atchafalaya

Processors, Inc. pursued their claims as crawfish buyers/processors as a class action

against the manufacturers and distributors of Icon. Three amended petitions were

filed wherein numerous crawfish buyers, processors, and wholesalers joined as

plaintiffs, claiming damages resulting from the widespread decline of the 2000 and

2001 crawfish crops allegedly from the use of the pesticide. Appellants herein,

Larry’s French Market and its owners, Larry and Brenda Judice, filed a petition of

intervention on May 14, 2004 claiming, with nineteen other intervenors, to be

“engaged exclusively in the buyer/processor end of the joint ventures they conduct

with the crawfishermen whom they support, and from whom they buy crawfish.”

In August 2005, a fourth amended petition was filed omitting all references to

a class action. Instead, all plaintiffs consolidated their allegations and joined one

another as individual plaintiffs. Pursuant to La.Code Civ.P. art. 596, “Liberative

prescription on the claims arising out of the transactions or occurrences described in

a petition brought on behalf of a class is suspended on the filing of the petition as to

all members of the class as defined or described therein.” Therefore, for the plaintiffs

who were members of the class which was specifically defined and/or described in

the petitions filed, prescription was suspended from May 24, 2000 through August

8, 2005 when the suit was no longer a class action.

The question presented in this appeal is whether the claims of Larry’s French

Market and Larry and Brenda Judice have prescribed or whether prescription was

suspended in their favor during the pendency of the class action suit and began to run

anew on August 8, 2005. The trial court found their claims prescribed based on the

deposition testimony of Larry Judice, who described his business as a restaurant.

After reviewing the pleadings, evidence, and pertinent jurisprudence, we find no error

in the decision rendered by the trial court and affirm.

The evidence before us presents Mr. Judice as a life long resident of Texas with

strong ties to Louisiana who actively promotes and supports the Cajun culture of

South Louisiana, his ancestral home. Mr. Judice related the history of his business,

Larry’s French Market, as originally a grocery store founded by his grandparents in

the 1920s near Port Arthur, Texas. After purchasing the business, Mr. Judice began

transforming it in the 1990s into a restaurant and general seafood market, with

additional products necessary for the preparation of boiled crawfish and other

Louisiana dishes. Mr. Judice testified that he had trouble getting crawfish in 1999,

2000, and 2001 and lost profits as a result. He entered this suit as an intervenor on

May 14, 2004.

In describing his business, Mr. Judice testified that he buys Louisiana crawfish

from farmers, wholesalers, and processors. Some of it is used in a variety of dishes

in his restaurant. A large quantity is sold live to retail customers of his seafood

market. The processed one-pound bags he purchases from processors are offered for

sale in the seafood market. Mr. Judice considers himself a retailer. He does not

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process crawfish and is in no way involved in the crawfish farmers’ business. In fact,

regarding the particular farmer he buys most of his crawfish from, Seth Abshire, Mr.

Judice knows nothing of his farming practices, such as whether he owns all his own

land, when he seeds his fields, what his crop rotation is, whether he has a water well,

or even the total amount of his production. Mr. Judice has no obligation to Mr.

Abshire, or any other farmer, to purchase a certain amount of crawfish. He does not

finance any part of the farming operation or bear any risk in the farming business.

While Mr. Judice often spoke to Mr. Abshire daily during crawfish season, the

conversation was merely to determine if he had crawfish available and when it would

be delivered.

By contrast, the relationship between the crawfish farmers and the

buyer/processors was described in Mr. Judice’s petition of intervention as follows:

The buyers and the crawfishermen operate under a set of customs,
understandings, and agreements. The buyers agree to provide the
crawfishermen with essential supplies such as traps, bait, sacks, hip
boots, transportation, cold storage, bait preparation, loaner crawfishing
boats and transport vehicles, and credit arrangements. The buyers agree
to accept, and pay for, the entirety of the crawfishermen’s catch
regardless of the size, quality or whether the buyer has a market for
resale. In return, the crawfishermen agree to sell all, or substantially all,
of the crawfish they catch to the buyers who supported them as
referenced above. The Buyer-Crawfishermen relationship is so
inextricable, co-dependent and symbiotic that the Intervenors often tell
the crawfishermen when to fish, and when to take off, based upon the
then applicable market conditions.

Furthermore, the Plaintiff Class, which included intervenors, was defined in the third

amended class action petition with the following restrictive language:

All persons or entities who, during the period January 1, 1999
through December 31, 2003, were Buyers and/or Processors of crawfish
from members of the class of farmers/fishermen in West, C.A. #99-
C4984-A, for resale, or further processing, and who allege damages as
a result of the exposure of Louisiana crawfish crops to Icon.

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Restaurants, restaurant owners and operators and general seafood
wholesalers and retailers are specifically excluded from the class.

The record before us shows that Larry’s French Market and its owners, Larry

and Brenda Judice, do not fall into the category of plaintiffs in whose favor

prescription has been suspended. These plaintiffs are not encompassed by the

definition of the Plaintiff Class nor in the description of plaintiffs who are in a

symbiotic relationship with the crawfish farmers of South Louisiana. We find La.

Code Civ.P. art. 596 to be inapplicable because these plaintiffs were never properly

included as “members of the class as defined or described” in the petitions.

Therefore, the petition of intervention did not serve to interrupt or suspend

prescription in the Judice plaintiffs’ favor, and, in fact, their claim for lost profits

from 1999 through 2001 had already prescribed.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

Costs of the appeal are assessed to the plaintiffs, Larry’s French Market and Larry

and Brenda Judice.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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NUMBER 08-924

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

PATRICK E. PHILLIPS, JR.

V.

G&H SEED COMPANY, INC.

Saunders, J., dissents and assigns written reasons.

I would reverse. In my view, the plaintiff is both a buyer and processor of
crawfish and a man who owns a restaurant. That portion of his business dedicated
to buying and processing of crawfish would fit under the class an, in my view,
would have a viable claim for its losses. The restaurant part of his business is
excluded and, as such, would have no claim. I respectfully dissent.

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