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Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church

Court of Appeals of Louisiana, Fourth Circuit

June 24, 2015

SHOW AND TELL OF NEW ORLEANS, L.L.C.
v.
FELLOWSHIP MISSIONARY BAPTIST CHURCH AND FIRST NBC BANK CONSOLIDATED WITH: S & R PROPERTIES INVESTMENTS, LLC
v.
FELLOWSHIP MISSIONARY BAPTIST CHURCH CONSOLIDATED WITH: HOLLIE D. VEST AND WANDA BERRYMAN HANSEN
v.
FELLOWSHIP MISSIONARY BAPTIST CHURCH CONSOLIDATED WITH: AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY
v.
FELLOWSHIP MISSIONARY BAPTIST CHURCH AND MOSES GORDON, II

Page 1137

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2011-00481, C/W 2011-00890, C/W 2011-07049, C/W2012-00130, DIVISION " C" . Honorable Sidney H. Cates, Judge.

JUDGMENT AFFIRMED.

Dominic J. Gianna, William D. Aaron, Jr., Lee M. Rudin, AARON & GIANNA, PLC, New Orleans, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS, S& R PROPERTIES INVESTMENTS LLC.

Maryann G. Hoskins, John W. Strange, DEGAN, BLANCHARD, & NASH, New Orleans, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS, AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY.

Virgil A. Lacy, III, Alexis K. Caughey, BLUE WILLIAMS, L.L.P, Metairie, LA, COUNSEL FOR DEFENDANTS/APPELLEES FELLOWSHIP MISSIONARY BAPTIST CHURCH AND COLONY INSURANCE COMPANY.

(Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Terri F. Love).

OPINION

Dennis R. Bagneris, Sr., J.

Page 1138

[2015-0067 La.App. 4 Cir. 1] Plaintiffs/appellants, S& R Properties Investments and American Empire Surplus Lines Insurance Company, appeal the judgment in favor of defendant/appellee, Fellowship Missionary Baptist Church, finding that the church was not liable for a fire that resulted in damages to S& R's property and the property of American Empire's insured. We find that the judgment was not manifestly erroneous or clearly wrong. Accordingly, the judgment is affirmed.

FACTS/PROCEDURAL HISTORY

The New Orleans Fire Department was called on January 7, 2011, to suppress a fire at property owned by the Fellowship Missionary Baptist Church (hereinafter, FMBC or " the church" ). The property encompassed the church building located at 2101 Prytania Street and a residential house located at 2113 Prytania Street. FMBC had not conducted worship services on the property since the church was damaged by Hurricane Katrina in 2005.

[2015-0067 La.App. 4 Cir. 2] The New Orleans Fire Department, the State Fire Marshall's Office, and the Bureau of Alcohol, Tobacco, and Firearms investigated the fire. All agencies agreed that the cause or the origin of the fire could not be conclusively determined.

Notwithstanding efforts to contain the fire, S& R and American Empire's insured, Show and Tell of New Orleans, L.L.C., sustained water and fire damages to their nearby properties, along with the owners of the Magnolia Mansion. S& R, American Empire, as the subrogated property insurer of Show and Tell, and the owners of the Magnolia Mansion filed complaints against FMBC.[1] The aggregate complaints essentially claimed that FMBC was negligent for its alleged inattentiveness in maintaining its property in a safe and secure manner and its alleged failure to adequately secure the church to prevent vagrants, who the complainants claimed caused the fire, from habitually entering and inhabiting the church. The complaints also contended that the building had been in a state of disrepair; that the property had been adjudged a public nuisance; and had been cited as blighted property by the City of New Orleans in September and November of 2009.

The parties agreed to a bi-ficurated jury trial on the issues of liability and damages. Trial commenced as to liability only on July 28, 2014.[2] A summary of pertinent trial testimony included the following:

[2015-0067 La.App. 4 Cir. 3] Raymond Washington, an inspector with the New Orleans Fire Department, investigated the fire. He testified that the cause and the origin of the fire were undetermined. Inspector Washington confirmed that fire investigators from the Louisiana State Fire Marshall's Office and the Bureau of Alcohol, Tobacco, and Firearms,

Page 1139

also reached the same conclusion. He was unable to substantiate any statements that vagrants had been inside the church. None of the witnesses he spoke to reported seeing persons entering or leaving the church at the time of the fire.

John Gauthier, the innkeeper at the neighboring Henry Howard House, testified regarding two occasions when he had entered the church. The first time he accessed the church, he entered through an opening in a door on the main floor. He saw clothes, food wrappers, and empty beer bottles-which indicated to him that homeless people had been inside the church. The second time he entered the church, he was with Myrna Keys, the church's real estate agent. This entry happened approximately a year before the fire. He conceded that on this second entry, the opening he had previously gone through had been secured. Mr. Gauthier also admitted that since the second entry, he never again saw anyone enter the church building. Mr. Gauthier did not see anyone leaving the church's premises on the night of the fire.

Pinar Alptunaer, a frequent Henry Howard House guest, testified that homeless people could squeeze through a back gate to enter the church's property. She believed that the church had a missing window located above its back door [2015-0067 La.App. 4 Cir. 4] and that milk crates were positioned below this missing window. She surmised that homeless persons used these crates to gain entry inside the church. On cross-examination, she admitted that she never saw vagrants or the homeless inside the church nor did she see them break into the church. Ms. Alptunaer also never actually saw anyone use the milk crates to enter the church through the alleged missing window. Ms. Alptunaer was not in town at the time of the fire.

Myrna Keys, the church's real estate agent, frequently showed the church over the years. She testified that when the property was first listed in 2008, she received calls that unauthorized persons were getting into the church building. She added, however, that church members quickly responded and took care of the problems she identified. Ms. Keys maintained that by mid-2009, the building was totally secured. In particular, she did not receive any more calls from anyone at Henry Howard House regarding unauthorized entries. Ms. Keys testified that she saw no evidence of people being able to enter the church for about a year and a half before the fire.

The video-taped deposition of Matt Patin, a retired police officer who worked at Henry Howard House, was introduced into evidence. Mr. Patin said he had called the police to have vagrants removed from outside the church's premises sometime in early December 2010. He did not see any more vagrants outside the property after that time.

Mr. Patin testified that he saw the fire. He said he saw flames coming simultaneously from the church as well as a dumpster that was located on S& R's [2015-0067 La.App. 4 Cir. 5] property. Mr. Patin did not observe any vagrants entering or leaving the church or its property on the evening of the fire.

The plaintiffs' fire sciences consultant expert, George Casellas, opened his investigation on June 12, 2012, about a year and a half after the fire. He stated that a triangle of fuel, oxygen, and ignition is needed to start a fire. Mr. Casellas explained that the wooden pews, books, and paper inside the church created a large fuel source; and that a hole in the church steeple provided the oxygen. He added that because the church lacked environmental controls as its utilities had been shut off, the wood within the church would be drier, which would make a fire burn with greater intensity. Mr. Casellas acknowledged

Page 1140

that the ignition source was unknown. However, he said the fire was probably caused by human intervention and that the likely source was vagrants based on reports he read that vagrants had previously been observed on the church's premises. Mr. Casellas did not believe that flames came from the dumpster. He theorized that Matt Patin, who saw flames in the S& R dumpster, ...


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