Kevin and Corliss Stenson, Etc. v. City of Oberlin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1125

KEVIN AND CORLISS STENSON, ET AL.

VERSUS

CITY OF OBERLIN

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2003-633
HONORABLE JOHN P. NAVARRE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Elizabeth A. Pickett, Judges.

REVERSED AND REMANDED.

Rudie Ray Soileau, Jr.
Lundy, Lundy, Soileau & South, LLP
P. O. Box 3010
Lake Charles, LA 70602
Telephone: (337) 439-0707
COUNSEL FOR:
Intervenors/Appellants - Silton and Robin Fuselier

Errol David Deshotels
Deshotels, Mouser & Deshotels
317 W. 6th Avenue
Oberlin, LA 70655
Telephone: (337) 639-4309
COUNSEL FOR:
Defendant/Appellee - City of Oberlin

Edward E. Rundell
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
Telephone: (318) 445-6471
COUNSEL FOR:
Defendants/Appellees - Meyer, Meyer, LaCroix & Hixson, Inc.

THIBODEAUX, Chief Judge.

Plaintiffs, Silton and Robin Fuselier, seek to intervene in a consolidated

litigation brought on behalf of several citizens of Oberlin, Louisiana who allege

ongoing problems with the sewerage and waste water system maintained by the City

of Oberlin. The trial court maintained defendant Meyer, Meyer, LaCroix, & Hixson,

Inc.’s (MMLH) exception of prescription and executed a final judgment. Mr. and

Mrs. Fuselier appeal the trial court’s judgment and assert that the trial court erred by

failing to admit testimony into the record regarding the Fuseliers’ injury and by

granting MMLH’s exception of prescription. For the following reasons, we reverse.

I.

ISSUE

We must decide whether the trial court:

(1) erred when it refused to allow Mr. and Mrs. Fuselier
to offer evidence at the November 21, 2008 hearing
to controvert the exception of prescription urged by
defendant MMLH; and,

(2) erred when it granted the exception of prescription
urged by defendant MMLH.

II.

FACTS AND PROCEDURAL HISTORY

This matter involves claims brought by several residents of the City of

Oberlin for property damage and personal injury allegedly caused by sewerage

overflow. Kevin and Corliss Stenson filed the earliest petition in the consolidated

action against the City of Oberlin in 2003. Mr. and Mrs. Fuselier filed a petition to

intervene on July 20, 2006.

Prior to the Fuselier petition, several notable filings in the consolidated

action occurred. Specifically, on March 10, 2005, the Stenson plaintiffs filed their

Second Supplemental Petition for recognition of class status, and on March 17, 2005,

the Stenson plaintiffs served their Second Supplemental Petition on the last

defendant—MMLH.

In their Petition of Intervention, Mr. and Mrs. Fuselier assert allegations

similar to those contained in the petitions of the Stenson plaintiffs. Specifically, Mr.

and Mrs. Fuselier claim that their alleged problems with sewerage and water overflow

commenced in approximately the summer and fall of 2003. They contend that the

City of Oberlin “purposefully and knowingly misled and misinformed plaintiffs of the

cause for the waste water and raw sewerage in their home. . . .” Moreover, Mr. and

Mrs. Fuselier claim that they continue to have problems with the back up of waste

water and raw sewerage into their home. Finally, Mr. and Mrs. Fuselier allege that

the City of Oberlin contracted with MMLH to design a waste water sewerage

treatment plant for the City of Oberlin.

MMLH filed an Exception of Prescription in response to the Fuseliers’

Petition of Intervention. As part of its exception, MMLH contended that the

Fuseliers’ incidental demand was untimely pursuant to La.Code Civ.P. art. 1067

because it was barred by prescription when the “main demand,” or Second

Supplemental Petition of the Stenson plaintiffs, was filed in March 2005, and was not

filed within ninety days of service of the main demand of the Stenson plaintiffs. The

Fuseliers argued in opposition that the intervention could relate back to the original

petition filed by the Stenson plaintiffs.

The trial court held two hearings on the matter. At the second hearing,

Mr. and Mrs. Fuselier’s counsel attempted to present the testimony of Robin Fuselier

regarding the date the Fuseliers first became aware of the water and sewerage

problem in their home. MMLH’s counsel objected and argued that the ruling on

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MMLH’s exception of prescription should be made from the face of the pleadings.

Mr. and Mrs. Fuselier’s counsel appeared to acquiesce and agree with MMLH’s

counsel’s statement. Counsel neither proffered Mrs. Fuselier’s testimony at the

hearing nor submitted an affidavit for the record.

The trial court took the matter under advisement and invited the parties

to submit post-hearing memoranda. Mr. and Mrs. Fuselier submitted a memorandum

that focused on the trial court’s refusal to allow testimony at the second hearing on

the exception. The trial court ultimately maintained the exception and executed a

final judgment.

III.

LAW AND DISCUSSION

Standard of Review

“The manifest error standard of review applies to an appellate court’s

consideration of an exception of prescription.” Credeur v. Champion Homes of Boaz,

Inc., 08-1096, p. 3 (La.App. 3 Cir. 3/4/09), 6 So.3d 339, 341-42 (citations omitted).

“We must bear in mind, however, that an appellate court must strictly construe the

statutes against prescription and in favor of the extinguished claim.” Id.

Submission of Evidence at the Hearing on Prescription

Louisiana Code of Civil Procedure Article 931 provides in part that “on

the trial of the peremptory exception pleaded at or prior to the trial of the case,

evidence may be introduced to support or controvert any of the objections pleaded,

when the grounds thereof do not appear from the petition.” (emphasis added). Where

the record is adequate for a trial court to rule on an exception of prescription, the

court does not abuse its discretion in not allowing the testimony. Johnson v.

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Unopened Succession of Alfred Covington, Jr., 42,488, 42,389 (La.App. 2 Cir.

10/31/07), 969 So.2d 733.

The Fuseliers’ counsel attempted to introduce evidence of the Fuseliers’

injury by offering the testimony of Robin Fuselier. MMLH’s counsel objected. Mr.

and Mrs. Fuselier’s counsel acquiesced and agreed with MMLH’s counsel, stating as

follows:

That’s very good, Your Honor. Then I will rely on the
paragraphs fifteen and sixteen. No, really, I understand
and we’ve been here before. We’ve got an affidavit that’s
coming into evidence. But I do agree with [MMLH’s
counsel] that if you take the pleadings and on the face of
the pleadings – Let me just go ahead and recite what it says
because that becomes our factual standard.

Counsel neither proffered Mrs. Fuselier’s testimony at the hearing nor

submitted an affidavit for the record. Instead, he relied on the face of the pleadings.

Thus, the trial court did not abuse its discretion in failing to permit the testimony of

Robin Fuselier at the November 21, 2008 hearing.

Exception of Prescription

MMLH asserts that the Fuseliers’ tort claims against MMLH are

prescribed.1 We disagree. In reaching this conclusion, we kept in mind that

“[p]rescriptive statutes, under our jurisprudence, are strictly construed in favor of

maintaining rather than barring actions.” Calbert v. Batiste, 09-514, p. 7 (La.App. 3

Cir. 11/4/09), 23 So.3d 1031, 1036 (citations omitted).

We focus on whether the Fuseliers’ claims relate back to the original

petition brought by the Stenson plaintiffs. Louisiana Code of Civil Procedure Article

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Specifically, MMLH relies on La.Code Civ.P. art. 1067 which provides that “an incidental
demand is not barred by prescription or peremption if it was not barred at the time the main demand
was filed and is filed within ninety days of date of service of main demand. . . .” This article,
however, contemplates an action that ordinarily may have been subject to prescription and would
not otherwise be subject to revival. Here, La.Code Civ.P. art. 1153 governs.

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1153 governs the “relation back” of a related pleading to an original pleading. The

article states:

When the action or defense asserted in the amended
petition or answer arises out of the conduct, 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 original pleading.

To determine whether the Fuseliers’ petition relates back to the original

Stenson petition, we look to the test set out by the Louisiana Supreme Court in Giroir

v. South Louisiana Medical Center Div. of Hospitals, 475 So.2d 1040 (La.1985).

“The test was originally used to determine whether an amended petition adding or

substituting a plaintiff should be allowed to relate back to the date of the filing of the

original petition, but multiple courts have used the same test in considering prescribed

intervening suits.” Calbert, 23 So.3d at 1035. In Giroir, the supreme court stated:

[A]n amendment adding or substituting a plaintiff should
be allowed to relate back if (1) the amended claim arises
out of the same conduct, transaction, or occurrence set
forth in the original pleading; (2) the defendant either knew
or should have known of the existence and involvement of
the new plaintiff; (3) the new and the old plaintiffs are
sufficiently related so that the added or substituted party is
not wholly new or unrelated; (4) the defendant will not be
prejudiced in preparing and conducting his defense.

Giroir, 475 So.2d at 1044 (citations omitted).

In examining the four Giroir factors, it is clear that the Fuseliers’

intervening tort claim against MMLH relates back to the time of the original filing by

the Stenson plaintiffs. The claims are virtually identical and arise from the same

occurrence—MMLH’s design of the City of Oberlin’s sewerage system. Considering

that the original suit was brought by other residents of the City of Oberlin, MMLH

should have anticipated that others in the City using the sewerage system might

choose to enter the suit. Mr. and Mrs. Fuselier are not wholly new or unrelated

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parties. They are suing in the same capacity as the Stenson plaintiffs—residents who

have been adversely affected by the City of Oberlin’s water and sewerage facility.

Moreover, MMLH would not be prejudiced in preparing and conducting a defense

against the Fuseliers, as the defense put forth would be identical to the one that would

be presented against the Stenson plaintiffs.

Thus, we find that the filing of the original petition by the Stenson

plaintiffs interrupted prescription for the benefit of the Fuseliers’ intervening suit.

Mr. and Mrs. Fuselier are permitted to proceed with their action against MMLH.

IV.

CONCLUSION

Based upon the foregoing, we reverse the judgment of the trial court.

Costs of this appeal are assessed to MMLH.

REVERSED AND REMANDED.

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