Lafayette Consolidated Government v. Rmd Holdings, Ltd.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-53

LAFAYETTE CONSOLIDATED GOVERNMENT

VERSUS

RMD HOLDINGS, LTD., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20162768
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett
and D. Kent Savoie, Judges.

REVERSED AND REMANDED.

Michael Dean Hebert
Becker & Hebert, LLC
201 Rue Beauregard
Lafayette, LA 70508
(337) 233-1987
COUNSEL FOR PLAINTIFF-APPELLANT:
Lafayette Consolidated Government

Sanettria Glasper Pleasant
Kirk Anthony Bergeron
Louisiana Department of Transportation and Development
1201 Capitol Access Rd.
P. O. Box 94245
Baton Rouge, LA 70804-9245
(225) 379-1261
COUNSEL FOR DEFENDANT-APPELLEE:
State of Louisiana, Department of Transportation & Development

PICKETT, Judge.

The plaintiff, Lafayette Consolidated Government (LCG), appeals a

judgment of the trial court granting a peremptory exception of no cause of action

filed by the Louisiana Department of Transportation and Development (DOTD)

and dismissing all claims against DOTD.

FACTS

DOTD undertook a project to improve a portion of Louisiana Highway 339

(Verot School Road) inside the corporate limits of Lafayette. DOTD and LCG

entered into two agreements in furtherance of the project, which included issues

related to planning, funding, construction, maintenance, and ownership once the

project was completed. During the course of the construction, LCG alleges certain

of its roads were damaged by the contractors and suppliers engaged by DOTD.

LCG originally filed suit against the general contractor for the project, RMD

Holdings, Ltd., and its insurer, Amerisure Mutual Insurance Company. LCG filed

an amended petition adding an additional thirty-seven defendants, primarily

subcontractors and suppliers for the project. LCG also named DOTD as a

defendant. The amended petition alleges all the defendants are jointly and

solidarily liable for the damages to the roads.

DOTD filed an exception of no cause of action. Following a hearing, the

trial court sustained the exception of no cause of action without issuing any

reasons. LCG appealed. Because the original judgment lacked decretal language,

this court issued a rule to show cause why the appeal should not be dismissed. The

trial court subsequently signed a judgment dismissing all claims against DOTD

with prejudice, and this court recalled its rule to show cause.

ASSIGNMENTS OF ERROR

LCG asserts two assignments of error:

1. The District Court erred in sustaining DOTD’s Exception of No Cause
of Action because DOTD failed to meet its burden of proving its
Exception of No Cause of Action.

2. The District Court erred in failing to permit Lafayette to amend its
Amended Petition to sufficiently state a cause of action against
DOTD.

DISCUSSION

In City of New Orleans v. Board of Directors of Louisiana State Museum,

98-1170, pp. 9-10 (La. 3/2/99), 739 So.2d 748, 755-56, the supreme court set forth

the purpose of a peremptory exception of no cause of action:

The purpose of the peremptory exception of no cause of action
is to determine the sufficiency in law of the petition. The burden of
showing that the plaintiff has stated no cause of action is upon the
exceptor. The public policy behind the burden is to afford the party
his day in court to present his evidence. Jarrell v. Carter, 577 So.2d
120 La.App. 1 Cir.), writ denied, 582 So.2d 1311 (La.1991). The
exception is triable on the face of the papers, and for the purpose of
determining the issues raised by the exception, the court must
presume that all well-pleaded facts in the petition are true. All
reasonable inferences are made in favor of the nonmoving party in
determining whether the law affords any remedy to the plaintiff.
LA.CODE CIV.P. arts. 927, 931; Mayer v. Valentine Sugars, Inc., 444
So.2d 618 (La.1984). A court of appeal reviews de novo a lower
court’s ruling sustaining an exception of no cause of action because
the exception raises a question of law and because the lower court's
decision is generally based only on the sufficiency of the petition.
Mott v. River Parish Maintenance, Inc., 432 So.2d 827 (La.1983).
The question is whether, in the light most favorable to the plaintiff,
the petition states any valid cause of action for relief. Jarrell, 577
So.2d at 120.

Generally, under LA.CODE CIV.P. art. 931 parties may
introduce no evidence to support or controvert the exception. See,
e.g., Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010
(La. App. 1 Cir. 3/27/97), 691 So.2d 751, 754, writ denied, 97-1066
(La. 6/13/97), 695 So.2d 982. . . .

An exception of no cause of action is likely to be granted only
in the unusual case in which the plaintiff includes allegations that
show on the face of the petition that there is some insurmountable bar
to relief. Thus, dismissal is justified only when the allegations of the
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petition itself clearly show that the plaintiff does not have a cause of
action, or when its allegations show the existence of an affirmative
defense that appears clearly on the face of the pleadings. [City of
New Orleans v.] Board of Comm’rs of Orleans Levee Dist., [93-690
La. 7/5/94),] 640 So.2d [] 237. A court appropriately sustains the
peremptory exception of no cause of action only when, conceding the
correctness of the well-pleaded facts, the plaintiff has not stated a
claim for which he can receive legal remedy under the applicable
substantive law.

In its amended petition, LCG made the following allegations:

10.
Since the inception of the Projects, in order for RMD to
prosecute its work under the contract with DOTD, RMD hired the
Defendants named in Paragraph 1(D) through Paragraph 1(MM) as
contractors, subcontractors, and/or vendors to provide labor,
materials, equipment, and other services in order to complete said
Projects. Thereafter, in order to prosecute their work under the
contract with DOTD and/or contracts and agreements amongst
themselves, the Defendants utilized the public roadways owned by the
Lafayette Consolidated Government to provide labor, haul equipment,
haul materials, and provide other services associated with the projects.

11.
The Petitioner avers that it notified the Defendants, through
their supervisors, agents, and/or representatives, on numerous
occasions that the public roadways were not designed nor rated to
sustain the construction traffic loads that the Defendants were placing
on them. As such, the Defendants had notice and initially performed
some patching and overlay where needed on the roadways; however,
the Defendants’ maintenance ceased and the roadways deteriorated
rapidly. The Defendants’ maintenance and repair of the roadways
constitutes an acknowledgment that it caused the damage; yet, despite
its knowledge and acknowledgment, the Defendants used and
continue to use said roadways thereby causing continuous and
successive damage.

12.
Accordingly, the Defendants knew or should have known that
its use of the roadways exceeded the weight limit and caused
continuous damage to said roadways; therefore, said damages fall
under Louisiana’s continuing tort doctrine because the damages are
continuing in nature.

14.
The Petitioner maintains that the continuous actions and/or
inactions of the Defendants are negligent and caused damage to the
property of the Petitioner, which has resulted in the following
continuous and successive damages:

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a) Cost and expense to investigate and inspect the
damage to the public roadways at issue herein to
determine the issues and damages and how to remedy
them;
b) Cost and expense to repair, reconstruct, replace,
and/or dispose of damaged portions of said roadways;
c) Cost and expense related to all other consequential
damages resulting from the Defendants’ continued use
and continuous damage to the public roadways at
issue herein; and
d) All other damages sustained by the Petitioner as may
be shown and proven at the trial on the merits of this
matter.

15.
Accordingly, the Petitioner asserts that the Defendants are
liable, jointly and in solido, for the continuous and successive
damages relating to and arising out of the Defendants' present and
continued use and negligence in failing to maintain the public
roadways in the City of Lafayette.

Taking all of the well-pleaded facts in the amended petition as true, we find

that LCG has stated a cause of action against DOTD. The agreements between

DOTD and LCG, which are attached to the original petition, clearly state that

DOTD will provide certain oversight of the projects, including inspection. LCG

alleges that it gave notice to DOTD about the damage. The complete contract

between DOTD and RMD Holdings is not in the record, and the exact nature of

DOTD’s involvement in the project is not in the pleadings.

CONCLUSION

We reverse the judgment of the trial court dismissing LCG’s claims against

DOTD, overrule DOTD’s peremptory exception of no cause of action, and remand

the matter to the trial court for further proceedings. Costs of this appeal in the

amount of $2,991.00 are taxed to DOTD.

REVERSED AND REMANDED.

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

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