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Morgan v. Entergy New Orleans, Inc.

Court of Appeals of Louisiana, Fourth Circuit

December 6, 2017

DONALD MORGAN
v.
ENTERGY NEW ORLEANS, INC.

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-08800, DIVISION "N-8" Honorable Ethel Simms Julien, Judge

          Mary W. Russo Dominick F. Impastato, III FRISCHHERTZ POULLIARD FRISCHHERTZ & IMPASTATO, LLC FOR PLAINTIFF/APPELLANT

          Sheryl M. Howard Christian B. Bogart Meredith L. Simoneaux DUPLASS ZWAIN BOURGEOIS PFISTER & WEINSTOCK COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins

          SANDRA CABRINA JENKINS JUDGE.

         In this 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 proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         On 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 facilities.[1]

         Based 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.

         On 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.

         On 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.

         On 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").[2] 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.

         On 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 prejudice.

         On June 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").

         Mr. Morgan timely appealed.

         DISCUSSION

         Standard of Review

         "When 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.

         "If 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.

         Mr. 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 Prescription.

         Contra ...


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