FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-08800,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
W. Russo Dominick F. Impastato, III FRISCHHERTZ POULLIARD
FRISCHHERTZ & IMPASTATO, LLC FOR PLAINTIFF/APPELLANT
M. Howard Christian B. Bogart Meredith L. Simoneaux DUPLASS
ZWAIN BOURGEOIS PFISTER & WEINSTOCK COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins
CABRINA JENKINS JUDGE.
personal injury action, plaintiff Donald Morgan appeals the
trial court's October 7, 2016 judgment granting a
peremptory exception of prescription filed by
defendant/appellee Cox Communications Louisiana, LLC
("Cox"). For the reasons that follow, we reverse
the trial court's judgment and remand for further
AND PROCEDURAL BACKGROUND
September 17, 2013, Mr. Morgan filed an Original Petition for
Damages (the "Petition") against Entergy New
Orleans, Inc. ("Entergy"). The Petition alleged
that Mr. Morgan sustained personal injuries on February 9,
2013 when he tripped and fell over an unguarded guy wire
attached to a utility pole owned by Entergy. Along with the
Petition, Mr. Morgan served interrogatories and requests for
production of documents (the "Discovery Requests")
on Entergy which, among other things, asked for the identity
of all persons and entities that owned, leased, installed,
worked on, or had "any interest in" the utility
pole at issue, including those who were responsible for
attaching the guy wire.
November 7, 2013, Entergy responded to the Discovery Requests
(the "Discovery Responses"). Entergy did not
identify any persons or entities as required, but simply made
blanket references to an attached 1982 agreement between New
Orleans Public Service Inc. ("NOPSI") and South
Central Bell Telephone Company ("Bell") (the
"Entergy/BellSouth Joint Use Agreement"). Under the
agreement, in exchange for rental payments, NOPSI gave Bell
the right to use NOPSI's utility poles to attach
Bell's wires and cables needed in the construction,
operation, and maintenance of Bell's
on the Entergy/BellSouth Joint Use Agreement, Mr. Morgan
filed a First Amended Petition on January 27, 2014 naming
BellSouth Communication Systems, LLC, and BellSouth
Telecommunications, LLC (collectively,
"BellSouth"), and Bell as additional defendants.
February 6, 2014, during a Rule 10.1 discovery conference,
counsel for Entergy told counsel for Mr. Morgan that the
Entergy/BellSouth Joint Use Agreement specified which utility
had the authority to attach guy wires at certain heights on
the pole, and that the height of the wire at issue signified
that BellSouth was responsible for the wire.
February 9, 2014, three days after Entergy confirmed that
BellSouth was responsible for the wire, the one-year
prescriptive period for Mr. Morgan's tort claims ended.
Based on this information from Entergy, on March 13, 2014,
Mr. Morgan propounded discovery requests to BellSouth to
confirm that BellSouth was the owner of the guy wire. On
October 13, 2014, BellSouth responded to Mr. Morgan's
discovery requests, denying ownership of, and responsibility
for, the wire.
November 3, 2014, nine months after expiration of the
one-year prescriptive period, Entergy supplemented its
original Discovery Responses by producing a July 16, 1982
agreement between Louisiana Power & Light Company
("LP&L") and Cox (the "Entergy/Cox Joint
Use Agreement"). Under this agreement, in exchange for
rental payments, Entergy gave Cox the right to use
Entergy's utility poles for the attachment of Cox's
wires and cables needed to furnish cable communication system
service to Orleans Parish. Based on the Entergy/Cox Joint Use
Agreement, on March 13, 2015, Mr. Morgan filed a Second
Amended Petition naming Cox as a defendant.
September 8, 2015, Mr. Morgan voluntarily dismissed BellSouth
from the action, without prejudice. On April 6, 2016, the
trial court granted Entergy's Motion for Summary Judgment
and dismissed Mr. Morgan's claims against Entergy, with
23, 2016, Cox filed an Exception of Prescription, seeking
dismissal of Mr. Morgan's claims. After conducting a
hearing on September 23, 2016, the trial court signed a
judgment dated October 7, 2016 sustaining Cox's Exception
of Prescription. The trial court stated that, even though the
result was "harsh, " the court was bound by the
Supreme Court's decision in Renfroe v. State ex rel.
Dept. of Transp. & Dev., 01-1646 (La. 2/26/02), 809
So.2d 947 ("Renfroe").
Morgan timely appealed.
prescription is raised by peremptory exception, with evidence
being introduced at the hearing on the exception, the trial
court's findings of fact on the issue of prescription are
subject to the manifest error-clearly wrong standard of
review." In re Med. Review Panel of Hurst,
16-0934, p. 4 (La.App. 4 Cir. 5/3/17), 220 So.3d 121, 125-26,
writ denied, 17-803 (La. 9/22/17), -- So.3d --, 2017
WL 4546566. "The relevant issue in a manifest error
inquiry is not whether the finder of fact was right or wrong,
but whether its decision was a reasonable one."
Id., 16-0934, p. 4, 220 So.3d at 126.
the trial court commits an error of law, however, the
applicable standard of review is de novo."
Richard v. Richard, 14-1365, p. 9 (La.App. 4 Cir.
6/3/15), 171 So.3d 1097, 1102-03. "The standard
controlling our review of a peremptory exception of
prescription also requires that we strictly construe the
statutes against prescription and in favor of the claim that
is said to be extinguished." Jones v. Sewerage &
Water Bd., 16-0691, p. 3 (La.App. 4 Cir. 3/8/17), 213
So.3d 497, 499.
Morgan contends that: (1) the trial court erred in failing to
apply the doctrine of contra non valentem to suspend
prescription of his claim against Cox; and (2) the trial
court erred in deciding that Renfroe was
controlling, and sustaining Cox's Exception of