Melissa Valois v. Village of Moreauville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-486

MELISSA VALOIS, ET AL.

VERSUS

VILLAGE OF MOREAUVILLE

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2010-5141
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Oswald A. Decuir, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Rodney M. Rabalais
Attorney at Law
Post Office Box 447
Marksville, Louisiana 71351
(318) 253-4622
Counsel for Plaintiffs/Appellees:
Melissa Valois
Donovan Bordelon
Shelley Valois

Karen Day White
Attorney at Law
700 North Tenth Street, Suite 440
Baton Rouge, Louisiana 70802
(225) 332-7631
Counsel for Defendant/Appellant:
Village of Moreauville

KEATY, Judge.

Defendant appeals from a judgment in favor of Plaintiffs declaring

Defendant vicariously liable for damages arising out of Mayor Lionel Bordelon’s

(Mayor Bordelon) actions in providing unreliable information which Plaintiffs

relied on to their detriment. Damages in the amount of $53,706 were awarded.

For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Melissa Valois, Donovan Bordelon, and Shelley Valois, allegedly

formed an informal partnership around the fall of 2009 for the purposes of

developing a trailer park within the Village of Moreauville (the Village). As part

of their construction project, Plaintiffs desired to install sewage drainage lines and

contacted the Village to arrange for an inspection of their proposed lines. The

Village generally relies on three private inspectors to ensure compliance with the

Village’s sewer use and water ordinances. In this case, there were no inspectors

available at the time that Plaintiffs requested an inspection, so Mayor Bordelon

inspected the property. Plaintiffs did not hire a contractor or plumber to install the

drainage lines for their commercial venture. Instead, Plaintiffs undertook to

complete all of the necessary construction themselves.

Mayor Bordelon inspected the proposed commercial site on several

occasions, usually after the installation of each stretch of line had been completed.

Mayor Bordelon advised Plaintiffs that the finished drainage configuration, as

installed by Plaintiffs, complied with the Village’s sewer use ordinance.

Plaintiffs alleged that sometime in early 2011, once the sewage and water

lines were completed, they discovered through an opinion of surveyor Jessie

Lachney (Mr. Lachney) that the configuration of the lines in all likelihood would

not be acceptable to the Louisiana Department of Health and Hospitals (DHH). At

the time of the trial of this matter, DHH had never inspected the site nor denied

Plaintiffs a permit, as Plaintiffs had never submitted any plans to the DHH for

review. Nonetheless, upon speaking with Mr. Lachney, Plaintiffs ceased

construction at the commercial site.

Plaintiffs subsequently filed suit against the Village seeking monetary

damages. Following a bench trial, the trial court ruled in favor of Plaintiffs.

Defendant now appeals, contending the trial court was incorrect in granting

Plaintiffs damages due to their reliance on Defendant’s representations to their

detriment.

DISCUSSION

An appellate court may not set aside a trial court’s finding of fact in the

absence of clear or manifest error. Lewis v. State, through Dep’t of Transp. and

Dev., 94-2370 (La. 4/21/95), 654 So.2d 311. The issue to be resolved by the

appellate court is not whether the trier of fact was right or wrong but whether the

fact finder’s conclusion was a reasonable one. Id. The fact finder’s choice

between two conflicting permissible views of the evidence cannot be manifestly

erroneous. Stobart v. State, through the Dep’t of Transp. and Dev., 617 So.2d 880

(La.1993). Where the testimony conflicts, the fact finder’s reasonable evaluations

and reasonable inferences of fact should not be disturbed upon review by the

appellate court. Rosell v. ESCO, 549 So.2d 840 (La.1989).

I. Immunity under La.R.S. 9:2798.1

Defendant alleges the trial court erred in failing to consider whether the

Village was entitled to immunity pursuant to La.R.S. 9:2798.1 and in not finding

that the Village is entitled to said immunity. Defendant contends that once the

Village has proven the applicability of the immunity, which Defendant contends it

has proven, the burden is upon Plaintiffs to defeat the Village’s entitlement to
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immunity. To do so, Defendant alleges Plaintiffs must prove that Mayor

Bordelon’s actions during this inspection process constituted “criminal, fraudulent,

malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.”

Defendant contends there is no evidence to that effect. As such, Defendants insist

that Plaintiffs’ claims against the Village based on the doctrine of respondeat

superior should be dismissed pursuant to this statutory immunity.

Plaintiffs allege the trial court did not err in refusing to grant the Village

immunity under La.R.S. 9:2798.1. Louisiana Revised Statutes 9:2798.1 provides,

in pertinent part:

B. Liability shall not be imposed on public entities or their officers
or employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when
such acts are within the course and scope of their lawful powers and
duties.

The issue in the present matter is whether Mayor Bordelon stepped outside

of the parameters created by La.R.S. 9:2798.1 when he allegedly took the role of

sewage inspector. The record contains a copy of Section 1.22 of the Village’s

sewage use ordinance, Ordinance # 12, which provides for a superintendent of

water and sewage. With respect to the foregoing ordinance, Mayor Bordelon

testified at trial as follows:

Q. Okay. And the ordinances of the Village of Moreauville say that
there’s supposed to be a Sewer . . . or Sewage Superintendent. And I
understand that at the time she made an application and during her
initial construction phase that you did not have a sewage
superintendent. You were also kind of in between at that time.
Correct?

A. That is correct, sir.

Q. And you individually filled in that role?

A. Yes, sir.

....

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Q. Yes, sir. And Missy [Melissa Valois] would call you from time to
time to come out so you could inspect what they had done?

A. Yes. They did it in phases.

....

Q. And then you did a final inspection as well and you told them
that everything was okay?

A. Yes.

Based upon the above testimony contained in the record, we conclude that

Mayor Bordelon stepped outside of these parameters when he took on the role of

sewage inspector, a position that should have been assigned to someone else under

the Village’s sewer ordinance. Under these circumstances, the trial court did not

err in refusing to grant the Village immunity under La.R.S. 9:2798.1.

II. Detrimental Reliance

Defendant contends the trial court erred in finding that the Village was liable

for damages based on the theory of detrimental reliance. Defendant argues that

had the trial court considered the Village’s discretionary immunity defense and

determined that it was not applicable, then the trial court should have analyzed

Mayor Bordelon’s conduct under the duty-risk analysis. Under that analysis,

Defendant alleges that there is no evidence to support Plaintiffs’ claim that Mayor

Bordelon owed a duty to Plaintiffs to either advise them of other regulations that

may govern their proposed water and drainage layout or to ensure that the drainage

layout would comply with state regulatory provisions. On the other hand,

Defendant insists there is evidence to establish that any duty to confect Plaintiffs’

drainage lines in a way that comports with parish and state regulations rests solely

with Plaintiffs. Plaintiffs disagree and allege that the trial court did not err in

finding the Village liable for damages.

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Louisiana courts have consistently held that a party must establish three

elements by a preponderance of the evidence in order to demonstrate that they are

entitled to recover damages for detrimental reliance: (1) representation by conduct

or word; (2) a justifiable reliance in that representation; and (3) a change in

position to their detriment because of that reliance. Suire v. Lafayette City-Parish

Consol. Gov’t, 04-1459 (La. 4/12/05), 907 So.2d 37.

The trial transcript contains the following testimony of Melissa Valois:

A. I contacted the City of Moreauville and asked who did I need to
speak to about developing and they told me I had to contact Mr.
Lionel Bordelon.

....

A. I told him what I wanted to do and he said I had to meet with the
Council and see what they had to say about it, and that we had to get
with him and he would tell us exactly what we needed to do, and draw
up a set of plans and submit it to him. And then we could begin
construction and he would come out and inspect as we did each thing
and gives us the approval. And whenever it was completed then we
could go on and turn on the water and hook everything to the sewage
and water.

....

A. I did have to go to three town meetings. They told me I had to
contact . . . to go to three town meetings to make sure that everyone
agreed and I went to the meetings, did what I had to do, and then that
was it. No one else . . . he told me I didn't have to contact anyone else
cause it was in the City of Moreauville and it had to go by what he
told me to do.

Melissa further testified that Mayor Bordelon never advised her that she

needed to turn in an application to the State. Based upon her conversations with

Mayor Bordelon, Melissa was under the impression that she only needed to comply

with Mayor Bordelon’s instructions in order to hook up the sewer drainage lines.

Once Melissa informed Mayor Bordelon that their installation of the sewer

drainage lines was complete, Mayor Bordelon allegedly said he needed a few days

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to look over everything prior to allowing the sewer drainage lines to be hooked up

to the Village.

After a few days, Mayor Bordelon allegedly told Melissa that the State

would not allow Plaintiffs to hook up the sewer drainage lines until they supplied

the State with a water sample. Melissa subsequently contacted Mr. Chris Soileau

who further advised that he could not take a water sample until she presented

licensed engineering drawings of the sewer drainage lines which were placed into

the ground. Melissa testified that Mayor Bordelon never advised her of the

necessity of licensed engineering drawings.

The trial transcript also contains the following testimony of Mayor Bordelon,

the mayor of Moreauville for thirty-two years. Mayor Bordelon testified that he

individually filled the role as the sewage superintendent at the time Melissa

contacted him regarding her plan for the trailer park. Mayor Bordelon further

testified:

Q. And at all times you okayed all of the work that you looked at?

A. That I looked at. Yes.

....

Q. You never said this is out of compliance or anything’s out of
compliance?

A. No, sir.

....

Q. Okay. Now, it is accurate that you never told Missy, or Donovan,
or Shelley that they needed Parish approval for anything?

A. No, sir.

Q. That’s true?

A. That is true.

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Q. And it’s also true that you did not tell Missy, Donovan, or Shelley
that they needed to get any approval from the State?

A. True.

The testimony of Melissa and Mayor Bordelon was sufficient for the trier of

fact to find liability in this case. Mayor Bordelon assumed the role of sewage and

water expert, guided Plaintiffs in what needed to be done, and Plaintiffs suffered

delays in their project and had to abandon what they had done to re-work the entire

project. Further, Plaintiffs were justified in relying on Mayor Bordelon’s

representations as he had been mayor for many years.

Based on the foregoing testimony, we are convinced the trial court did not

err in finding the Village liable for damages based on the theory of detrimental

reliance.

III. Damages

Defendant alleges the trial court erred in awarding Plaintiffs damages for the

rental of a track hoe, delivery of sand, labor costs, and lost rentals in the absence of

any credible evidence to support the same. Plaintiffs contend the elements of

damages were proven through testimony, and the trial court’s findings should not

be disturbed.

As mentioned above, an appellate court may not set aside a trial court’s

finding of fact in the absence of clear or manifest error. Lewis, 654 So.2d 311.

Special damages must be proven by plaintiffs through reliable evidence.

Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70.

The trial transcript contains the testimony of Melissa regarding the damages

Plaintiffs allegedly sustained. Melissa testified that she spent $960 on renting a

track hoe which was utilized to dig. She provided invoices for materials which

totaled to $6,176. Melissa testified that she purchased sandy dirt for $280 that had

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to be laid in the ground prior to laying the lines. She further testified that the labor

performed by co-Plaintiff, Donovan, amounted to $12,480. Melissa also testified

as to the loss of rentals and/or the amount she would have charged to tenants had

she been successful in the trailer park business. She estimated lost rentals to be

$33,810.

The trial transcript also contains the testimony of Mr. Wendall Guillot, a

plumbing contractor Melissa hired to inspect the property and advise what steps

needed to be taken to remedy the situation. In order to comply with DHH sewage

and water regulations for trailer parks, Mr. Guillot opined that he would have to

undo and dig up the work performed by Plaintiffs at a cost of $6,000 to $7,000.

Such a task would take approximately two to three days and would require the

work of a couple of workers plus equipment.

The elements of damages were proven through Melissa’s and Mr. Guillot’s

credible testimony. Based on the foregoing testimony, we cannot say that the trial

court was manifestly erroneous in awarding Plaintiffs damages for the rental of a

track hoe, delivery of sand, labor costs, and lost income rentals.

DECREE

The record evidence establishes that the Village is not entitled to immunity

under La.R.S. 9:2798.1. The evidence further shows that Plaintiffs relied on

Mayor Bordelon’s representations to their detriment. As a result of their

detrimental reliance, Plaintiffs suffered damages.

The judgment of the trial court is affirmed. All costs of this appeal are

assessed against the Village.

AFFIRMED.

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