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Newsome v. City of Bastrop Through

Court of Appeals of Louisiana, Second Circuit

November 15, 2017

TERRY NEWSOME AND CYNTHIA NEWSOME Plaintiffs-Appellants
v.
CITY OF BASTROP THROUGH Defendants-Appellees

         Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana Trial Court No. 201533 Honorable Wilson Rambo, Judge

          SMITH & NWOKORIE, LLC Counsel for Appellants By: Anselm Nwokorie Brian G. Smith

          HUDSON, POTTS & BERNSTEIN, LLP Counsel for Appellee By: Robert M. Baldwin City of Bastrop Johnny R. Huckabay, II Larry D. McCarty

          CHRISTOVICH & KEARNEY, LLP Counsel for Appellee By: Mindy Brickman Veolia Water North Christy Lynn McMannen America-South, LLC

          Before WILLIAMS, DREW (Ad Hoc), and BLEICH (Pro Tempore), JJ.

          BLEICH, J. (Pro Tempore)

         This action for damages arises from alleged malfunctions of the City of Bastrop's sewerage system. Plaintiffs appeal a summary judgment granted in favor of the City of Bastrop and Veolia Water North America-South, LLC. We affirm.

         FACTS

         In 1999, Terry and Cynthia Newsome ("the Newsomes") purchased immovable property on Rose Street in Bastrop, Louisiana. Shortly after the purchase of the property, the Newsomes began to experience sewage backup in their home due to the overburdened wastewater collection system that could not contain the increased amount of water caused by rainfall. The water overflow escalated and eventually caused sewage water to back up into the tubs, toilets, and sinks inside the house and produced varying types of water damage to the residence.

         On February 4, 2015, the Newsomes filed a petition for damages against the City of Bastrop, through its Mayor Arthur Jones ("the City"), and Veolia Water North America-South, LLC ("Veolia") alleging that the flooding of the property caused by sewage overflow was due to negligence and failure to properly maintain the sewerage system. The City is the owner of the sewerage system, but contracted with Veolia in 2012 to maintain and operate the sewerage system and pumps.

         After discovery, Veolia filed a motion for summary judgment on the grounds that any claims the Newsomes may have had against the City or Veolia had prescribed. The City filed a separate motion incorporating and adopting Veolia's motion. After a hearing, the trial court granted summary judgment in favor of the City and Veolia, and denied a motion by the Newsomes to strike an affidavit submitted in support of the summary judgment. The Newsomes now appeal that judgment.

         DISCUSSION

         Summary Judgment/Prescription

         Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by motion for summary judgment. Hogg v. Chevron USA, Inc., 2009-2632 (La. 07/06/10), 45 So.3d 991, 997. When prescription is raised by motion for summary judgment, review is de novo, using the same ...


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