Anthony James Landry v. Guzzino Commercial, LLC.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-206 consolidated with 20-207, 20-208

ANTHONY JAMES LANDRY, ET AL.

VERSUS

GUZZINO COMMERCIAL, LLC, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2013-2895 C/W 2013-3206, 2013-3564
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Candyce G. Perret,
Judges.

AFFIRMED AS AMENDED.

Thomas John Gayle
Gayle Law Firm
713 Kirby Street
Lake Charles, LA 70602
(337) 494-1220
COUNSEL FOR DEFENDANTS/APPELLANTS:
Guzzino Commercial, LLC
Industrial Carbon Services, Inc.
Utility Equipment & Truck
Phillip Anthony Guzzino

Ralph Edward Kraft
Kraft Lege Anseman, LLC
600 Jefferson Street, Suite 410
Lafayette, LA 70501
(337) 706-1818
COUNSEL FOR DEFENDANTS/APPELLANTS:
Guzzino Commercial, LLC
Utility Equipment & Truck
Industrial Carbon Services, Inc.

Christopher E. John
City of Lake Charles Legal Department
P.O. Box 900
Lake Charles, LA 70602-0900
(337) 491-1547
COUNSEL FOR DEFENDANT/APPELLEE:
City of Lake Charles

David Laine Morgan
Stockwell, Sievert, et al.
P.O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR DEFENDANT/APPELLEE:
City of Lake Charles

J. Lee Hoffoss, Jr.
Claude P. Devall
Donald Wayne McKnight
Hoffoss Devall, LLC
517 West College Street
Lake Charles, LA 70605
(337) 433-2053
COUNSEL FOR PLAINTIFFS/APPELLEES:
Anthony James Landry, et al.

Charles B. Cappel
1011 Lakeshore Drive, Suite 500
Lake Charles, LA 60601
(337) 491-6996
COUNSEL FOR PLAINTIFFS/APPELLEES:
Eula Bartie, et al.

GREMILLION, Judge.

In this “landowner nuisance” case pursued under La.Civ.Code arts. 667 and

668, the defendants, Guzzino Commercial, LLC (GC), Industrial Carbon Services,

LLC (ICS), and Utility Equipment and Truck Company (UTEC), appeal the trial

court’s judgment in favor of plaintiffs Anthony James Landry and Amy Patrice

Nevils Landry; Alfred Caesar and Ophelia Caesar; Vickie Brown; Elaine Jason; and

James Coley and Novelle Coley, awarding plaintiffs damages for injuries, medical

expenses, and property damage for their exposure to petroleum coke by defendants.1

For the reasons that follow, we affirm as amended.

FACTS

GC owns warehouse facilities on Industrial Avenue in Lake Charles,

Louisiana, that were leased by ICS for the storage and processing of petroleum coke,

a manufacturing waste product that is used in the manufacturing of other products,

such as steel. The warehouses are located near the Grienwich Terrace neighborhood.

Between 2011 and 2013, UTEC was engaged in the packaging and transportation of

the coke for ICS. In 2013, ICS took over the processing of the coke until 2015, when

that activity ended at the GC warehouses.

The plaintiffs are landowners or tenants in the Grienwich Terrace

neighborhood who allege that they have sustained property damage and health

effects as a result of coke that had wafted into the neighborhood from the improperly

maintained warehouses.

The matter was tried before the bench. The trial court rendered judgment

finding GC, UTEC, and ICS were liable in solido for the damages suffered by the

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This matter was consolidated for trial and appeal with Docket Number 20-207, Eula
Bartie, et al. v. Guzzino Commercial, LLC, and 20-208, Wanda Anderson, et al. v. Guzzino
Commercial, LLC. This opinion will address the claims in all three matters.

plaintiffs. In a separate rule to show cause, held before this appeal was perfected,

the trial court assessed court costs, including expert witness fees.

Defendants assign six errors that they contend warrant reversal:

1) Manifest error in finding that plaintiffs’ medical claims were caused by
petroleum coke;

2) Manifest error in finding that the property damage claim of Alfred and
Ophelia Caesar was caused by petroleum coke;

3) Legal error in holding defendants liable in solido;

4) Legal error in not assessing each defendant’s percentage of fault;

5) Not reducing plaintiffs’ quantum for their failure to mitigate their damages;
and,

6) Abusing its discretion in awarding expert witness fees.

ANALYSIS

Louisiana Civil Code Article 667 reads:

Although a proprietor may do with his estate whatever he
pleases, still he cannot make any work on it, which may deprive his
neighbor of the liberty of enjoying his own, or which may be the cause
of any damage to him. However, if the work he makes on his estate
deprives his neighbor of enjoyment or causes damage to him, he is
answerable for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known that his works would
cause damage, that the damage could have been prevented by the
exercise of reasonable care, and that he failed to exercise such
reasonable care. Nothing in this Article shall preclude the court from
the application of the doctrine of res ipsa loquitur in an appropriate case.
Nonetheless, the proprietor is answerable for damages without regard
to his knowledge or his exercise of reasonable care, if the damage is
caused by an ultrahazardous activity. An ultrahazardous activity as used
in this Article is strictly limited to pile driving or blasting with
explosives.

“Proprietor” includes not just the landlord, but also “a person whose rights derive

from the owner.” Inabnet v. Exxon Corp., 93-681, p. 12 (La. 9/6/94), 642 So.2d

1243, 1251.

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Assignment of error number 1

Defendants assert that the trial court manifestly erred in awarding damages

for medical claims without expert testimony establishing causation. Lasha v. Olin

Corp., 625 So.2d 1002 (La.1993) examined the notion that a plaintiff must establish

causation of injuries with “reasonable medical certainty.” The supreme court

determined that this was not an appropriate burden of proof. The court reasoned that

“certainty” was too high a standard, equating that degree of proof to “beyond a

reasonable doubt.” Id. at 1005. The court further concluded:

Second, because the word “medical” is susceptible of being construed
as referring only to expert medical testimony, the use of the phrase
“reasonable medical certainty” tends to preclude the trier of the facts
from considering evidence other than that of expert medical witnesses.
While expert medical evidence is sometimes essential, it is self-evident
that, as a general rule, whether the defendant’s fault, was a cause in fact
of a plaintiff’s personal injury or damage may be proved by other direct
or circumstantial evidence. Jordan v. Travelers Ins. Co., [257 La.
995],245 So.2d [151] at 155 [La.1971]; See Prosser, Torts, § 41, p. 269
(5th ed. 1984) (“Where the conclusion is not one within common
knowledge, expert testimony may provide a sufficient basis for it, but
in the absence of such testimony it may not be drawn. But on medical
matters within common knowledge, no expert testimony is required to
permit a conclusion as to causation.”) (Footnotes citing authorities
omitted.) cf. Carpenter v. Nelson, 101 N.W.2d at 922, and authorities
cited therein.

Id. Thus, a trier of fact can consider causation proven based upon areas that lie

within common knowledge.

The judgment awarded Anthony and Amy Landry $2,000.00 each for medical

“issues,” i.e., general damages. Similarly, the court awarded: Ophelia Caesar,

$2,000.00; Vickie Brown, $2,500.00; and Novelle Coley, $1,000.00. Each of these

awards represents aggravation of sinus and asthma complaints. The plaintiffs

presented the testimony of Dr. Michael Crouch, a toxicologist, who identified eye,

ear, nose, throat, and lung irritation as well-recognized problems associated with any

particulate matter, not just petroleum coke.

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Vickie Brown moved into Grienwich Terrace in February 2012. In June, she

began to experience difficulty breathing. This coincided with when she began to

notice black dust coating her son’s white car. Ms. Brown was admitted to Memorial

Hospital and diagnosed with bronchial spasms and asthma. She had never

experienced asthma before moving to Grienwich Terrace. As a result of the black

dust, Ms. Brown restricted her young son from playing outdoors. The black dust on

her ceiling fans and other areas of her home required more of Ms. Brown’s attention

to keep her house clean.

Anthony Landry and his wife moved into Grienwich Terrace in February 2011.

He began to notice the black dust around the property that summer. Mr. Landry had

asthma as a youth but had no problems since his pre-teen years. He experienced a

recurrence of his asthma, sinus and allergy problems, and eye irritation. Amy Nevils

Landry, too, testified to experiencing asthma and sinus and allergy problems. Since

she and her husband moved from Grienwich Terrace, those problems have lessened.

Ophelia Caesar did not testify at trial. Her husband, though, testified that his

wife began to experience more profound sinus problems than before the coke

operations at the warehouse. Those problems have lessened since 2015, when the

coke operation ceased.

Novelle Coley was unable to testify at trial because of an unrelated condition

that necessitated surgery. Her husband, James, testified that his wife began having

asthma problems after the couple noticed the black dust, which they even found in

the air conditioning ducts. She started taking asthma medication and has not been

able to stop, even after the coke operation ended.

A plaintiff’s testimony can establish causation when the alleged injury is one

that common knowledge associates with an alleged cause. Lasha, 625 So.2d 1002

We find no error in the trial court’s conclusion that breathing difficulties and eye
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irritation were caused by the plaintiffs’ exposure to a particulate substance,

petroleum coke, from the warehouses.

Assignment of error number 2

Defendants complain that the trial court erred in finding causation on the

Caesars’ property damage claims. The Caesars were awarded $14,527.69 in

property damage. The trial court itemized those damages as: $13,500.00 to replace

siding, $598.38 for lawn furniture, and $429.00 to replace their HVAC system motor.

The Caesars’ home was sided with cedar. Mr. Caesar testified that the siding

was impregnated with coke fines. Despite his efforts, he was unable to wash it off.

Some of the fines washed off the roof, but not all of it would. Therefore, the Caesars

had the house re-roofed with twenty-six-gauge metal and sided the house with vinyl

in March 2017.

The Caesars possessed outdoor furniture. Mr. Caesar testified that he and his

wife used the furniture frequently. Mrs. Caesar unsuccessfully tried to scrub the

coke fines from their furniture, so they replaced it in March 2014.

In April 2014, the Caesars replaced the condenser fan motor, burned contactor,

and capacitor in their air conditioner. Mr. Caesar opined in his testimony that the

problems with the HVAC system were caused by the abrasive nature of the coke

fines that infiltrated his outdoor unit.

As with medical causation, property damage causation must be proven by a

preponderance of the evidence. Butler v. Baber, 529 So.2d 374 (La.1988). Either

direct or circumstantial evidence may sustain a finding of causation. Id.

Defendants assert that there was no evidence that the roof or HVAC were

damaged by the presence of coke. Mr. Caesar, however, did testify to these facts.

His testimony constitutes evidence. We find no error in the trial court’s

determination that the roof, siding, and lawn furniture were damaged by coke. One
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can easily associate a causal relationship through common knowledge between the

coke and damage to exposed cedar siding, asphalt roofing, and lawn furniture.

The HVAC system, however, presents a distinct situation. Plaintiffs presented

no evidence other than Mr. Caesar to establish a causal relationship between the coke

and the damage to the aged condenser and other components of the system. We find

that establishing a causal relationship between the coke and the damaged HVAC

system falls outside the realm of common knowledge. Air conditioner condensers

fail without the presence of particulate matter and are more complex systems about

which most people know little. The trial court erred in awarding damages for the

HVAC repairs on the evidence presented.

Assignments of error numbers 3 and 4

The defendants complain that the trial court erred in failing to apply the

principle of comparative fault to this claim. The plaintiffs counter that defendants

are solidary obligors pursuant to La.Civ.Code art. 2324(A), which provides for

solidary liability when two or more persons conspire to commit an intentional or

willful act.

In Yokum v. 615 Bourbon St., L.L.C., 07-1785 (La. 2/26/08), 977 So.2d 859,

our supreme court discussed the nature of liability under La.Civ.Code art. 667 in

light of legislative amendments enacted by the legislature in La.Acts 1996, 1st

Ex.Sess., No.1, §1. This amendment incorporated a landowner-negligence

requirement to impose liability under La.Civ.Code art. 667; it must be proven that

the landlord knew or reasonably should have known that the works on his property

would cause damage. Thus, liability under Article 667 represents a delict, which

mitigates in favor of applying comparative fault. Yokum, 977 So.2d 859.

Further, this court has held that comparative fault applies to claims brought

pursuant to La.Civ.Code art. 667. In Pelt v. City of Deridder, 553 So.2d 1097
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(La.App. 3 Cir. 1989), we held that a landowner whose apartment complex received

a backwash of sewerage in a flood was properly assessed with 65% comparative

negligence by the trial court for constructing the apartments in an area that he had

been warned was prone to flooding. We reiterated the Pelt holding in Stanford v.

Town of Ball, 05-38 (La.App. 3 Cir. 6/1/05), 903 So.2d 1235, writs denied, 05-1684

(La. 1/9/06), 918 So.2d 1053, 05-1709 (La. 1/9/06), 918 So.2d 1057. Those cases,

though, involved comparative fault of the alleged victims rather than an

apportionment of fault between obligors.

More recently, however, our colleagues on the fifth circuit undertook an

exhaustive analysis of the issue and concluded that comparative fault applies

between obligors to obligations arising under La.Civ.Code art. 667. Kenner

Plumbing Supply, Inc. v. Rusich Detailing, Inc., 14-922 (La.App. 5 Cir. 9/23/15),

175 So.3d 479, writs denied, 15-2110 (La. 2/5/16), 186 So.3d 1164, 15-2112, 15-

2115 (La. 2/5/16), 186 So.2d 1165. In light of Pelt, Stanford, and the fifth circuit’s

excellent analysis in Kenner Plumbing Supply, we conclude that the trial court erred

as a matter of law in not assessing the defendants’ comparative fault. We therefore

amend the judgment to apportion fault as follows: Guzzino Commercial, LLC, 25%;

UTEC, 25%; and Industrial Carbon Services, LLC, 50%. Each of these enterprises

were aware of the condition of the buildings, the need for appropriate precautions,

and the nature of the material with which they were working. UTEC physically

transported and packaged the material. It supplied protective equipment for its

employees, indicating knowledge of the nature of petroleum coke. UTEC and ICS

processed the material for about an equal amount of time, but UTEC did so at ICS’s

direction. GC, while not engaged in the processing of the coke, was the owner of

the building and aware of the nature of petroleum coke and that it was being

processed on its premises.
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Assignment of error number 5

Defendants assert that the plaintiffs failed to mitigate their damages. The trial

court, they argue, erred in not finding that the plaintiffs failed to mitigate their

damages.

ICS sued the City of Lake Charles over an ordinance that would have

restricted its activities in the warehouses. The judgment enjoined the city from

inhibiting ICS’s activities unless it could be demonstrated to the court that petroleum

coke was being released from the warehouses. Because the plaintiffs were aware of

the injunction and failed to seek redress under its terms, defendants argue, they failed

to mitigate their damages.

Defendants’ argument holds the plaintiffs responsible for not curtailing

defendants’ conduct. “The only answer to this argument is, that the ways of the

transgressor are hard, and that if a party litigant does not come into courts of justice

with clean hands, he has no right to complain of the consequences of his misconduct.”

Hebert v. Lacour, 5 La.Ann. 599, 600 (La.1850). The plaintiffs were not bound by

the injunction. Indeed, defendants were aware that the injunction would be dissolved

if it were shown that coke was escaping the buildings. It was incumbent upon the

defendants to prevent this, not the plaintiffs.

Assignment of error number 6

Defendants argue that the trial court erred in awarding the expert witness fees

of Dr. Stephen Compton, Mr. Scott Darrah, and Mr. Dewayne Corley. Between

these three witnesses, the fees awarded total $63,515.78.2 Plaintiffs counter that the

award of court costs represents a separate judgment that must be appealed separately;

therefore, they urge that we dismiss this portion of defendants’ appeal for want of

2
Dr. Compton’s fees and deposition charge total $51,266.08; Mr. Darrah’s total $6,650.00;
and Mr. Corley’s $5,599.70.
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jurisdiction. We will address plaintiffs’ contention first because, were we to

determine that we are without jurisdiction over costs, there would be no need to

address the merits of defendants’ argument.

Louisiana Code of Civil Procedure Article 2088 governs the matters over

which a trial court retains jurisdiction after an appeal. It reads, in pertinent part:

A. The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the appellate court
attaches, on the granting of the order of appeal and the timely filing of
the appeal bond, in the case of a suspensive appeal or on the granting
of the order of appeal, in the case of a devolutive appeal. Thereafter,
the trial court has jurisdiction in the case only over those matters not
reviewable under the appeal, including the right to:

....

(10) Set and tax costs and expert witness fees.

In support of their contention, plaintiffs cite Harruff v, King, 15-840 (La.App. 3 Cir.

2/3/16), 185 So.3d 289, writ denied, 16-676 (La. 5/27/16), 192 So.3d 745. In

Harruff, the plaintiffs sought to rescind a sale of immovable property on grounds of

lesion beyond moiety. The trial court rescinded the sale, and defendants appealed.

During the pendency of the appeal, plaintiffs filed a rule to fix costs. The trial court

awarded expert costs to plaintiffs, and defendants did not appeal that ruling. We

determined that after an appeal is filed, the trial court’s jurisdiction is divested over

matters being appealed. Other matters that arise after the appeal is taken do not vest

with the court of appeal.

In this case, the judgment on the merits was signed on January 15, 2019.

Defendants timely sought new trial, which the trial court denied. Plaintiffs then

sought court costs and expert fees through a rule to show cause. The judgment

awarding those costs and fees was signed on July 29, 2019. Defendants then sought

a suspensive appeal on September 10, 2019.

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This chronology distinguishes the present matter from Harruff. Here, the

appeal was not taken until after the judgment was rendered, whereas, in Harruff the

appeal was taken before costs were assessed. Further, the conclusion that the expert

fees award does not constitute a separate judgment that must be appealed apart from

the judgment on the merits is supported by the statute governing the award of expert

witness fees. Louisiana Revised Statutes 13:3666 provides, in pertinent part

(emphasis added):

A. Witnesses called to testify in court only to an opinion founded
on special study or experience in any branch of science, or to make
scientific or professional examinations, and to state the results thereof,
shall receive additional compensation, to be fixed by the court, with
reference to the value of time employed and the degree of learning or
skill required.

B. The court shall determine the amount of the fees of said expert
witnesses which are to be taxed as costs to be paid by the party cast in
judgment either:

(1) From the testimony of the expert relative to his time rendered
and the cost of his services adduced upon the trial of the cause, outside
the presence of the jury, the court shall determine the amount thereof
and include same.

(2) By rule to show cause brought by the party in whose favor a
judgment is rendered against the party cast in judgment for the purpose
of determining the amount of the expert fees to be paid by the party cast
in judgment, which rule upon being made absolute by the trial court
shall form a part of the final judgment in the cause.

This court does have jurisdiction to review the expert fees’ award.

The award of expert witness compensation lies within the sound discretion of

the trial court and may only be reversed on a showing that the trial court abused that

discretion. Raymond v. Gov’t. Employees Ins. Co., 09-1327 (La.App. 3 Cir. 6/2/10),

40 So.3d 1179, writ denied, 10-1569 (La. 10/8/10), 46 So.3d 1268. The factors the

trial court should consider are the length of time the expert spent preparing for trial;

the time the expert spent at trial; the amount of work and nature of the work the

expert performed; the expert’s knowledge, accomplishments, and skill; the
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complexity of the issues before the court; the helpfulness of the expert to the trier of

fact; and awards of compensation to experts in similar cases. Id.

Defendants argue that Mr. Darrah inspected each home and estimated based

upon assumptions regarding the presence and properties of petroleum coke that were

unfounded. Defendants contend that the trial court did not rely upon Mr. Darrah’s

opinions in its decision.

Plaintiffs counter that neither the trial court’s judgment nor its written reasons

for judgment indicate the degree to which it relied upon these experts, and we agree.

However, the sum awarded for the work of Mr. Darrah is far below the amount

plaintiffs were billed, $43,900.00. The trial court denied the plaintiffs any award for

Mr. Darrah’s investigative work and only awarded the amounts for his actual

deposition testimony. Mr. Darrah’s deposition was used at trial for purposes of

La.R.S. 13:3666. We find no abuse of the trial court’s discretion regarding this

award.

Similarly, we find no abuse of discretion in the trial court’s award regarding

Mr. Corley’s testimony. However, Mr. Corley, a registered geologist who was

tendered and accepted as an expert in sampling and contour mapping, sampled the

properties involved in the litigation and prepared a contour map of the concentrations

of petroleum coke. While Mr. Corley’s testimony was not cited explicitly by the

trial court in its reasons for ruling, his map visually reinforced the data that linked

the warehouses to the coke found on plaintiff’s properties.

Defendants suggest that the trial court did not rely upon Dr. Compton’s

testimony. We note that the trial court’s reasons for judgment specifically mention

Dr. Compton and juxtapose it with the testimony of defendants’ expert, Mr. Lester

McCoy. The trial court clearly gave greater credence to Dr. Compton, whose

testimony was corroborated to a greater extent by the physical evidence. We find
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no merit to the argument that the trial court did not rely upon Dr. Compton and no

abuse of discretion in awarding the expert fees for Dr. Compton’s services.

DECREE

For the reasons assigned, the judgment of the trial court in favor of Alfred and

Ophelia Caesar is amended to $14,098.69 in property damages. All other damage

awards are affirmed. Fault is assessed to defendants as follows: Guzzino

Commercial, LLC, 25%; UTEC, 25%; and Industrial Carbon Services, LLC, 50%.

All costs of this appeal are taxed to defendants/ appellants, Guzzino Commercial,

LLC, Industrial Carbon Services, LLC, and Utility Equipment and Truck Company.

AFFIRMED AS AMENDED.

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