RONALD COLSON AND VIRGINIA COLSON, ET AL.
COLFAX TREATING CO, LLC, ET AL.
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
236, 116 C/W 236, 112 HONORABLE WILLIAM GREGORY BEARD,
J. Bailey Eli J. Meaux Provosty, Sadler, & deLaunay, APC
COUNSEL FOR PLAINTIFFS/APPELLANTS: Virginia Colson Ronald
E. Broussard, Jr. Broussard, Halcomb & Vizzier COUNSEL
FOR PLAINTIFFS/APPELLANTS: Virginia Colson Ronald Colson
Randall B. Keiser David E. Boraks Keiser Law Firm, P.L.C.
COUNSEL FOR DEFENDANT/APPELLEE: City of Pineville
composed of Marc T. Amy, Shannon J. Gremillion, and Candyce
G. Perret, Judges.
SHANNON J. GREMILLION JUDGE.
Ronald and Virginia Colson, appeal summary judgment in favor
of the City of Pineville in this suit arising from damage to
the Colsons' home in the wake of Hurricane Gustav. The
City filed a Motion to Strike the Colsons' reply brief.
In response to the City's motion to strike, the Colsons
filed a motion for leave to exceed the page limit on reply
briefs. The Colsons also filed a motion to supplement the
record with documents proffered at the hearing on the motion
for summary judgment but were excluded from evidence by the
trial court. For the reasons that follow, we grant the
City's motion to strike, deny the Colsons' motion to
supplement the record, and affirm the trial court.
AND PROCEDURAL HISTORY
Colsons own property on Church Street in Pineville,
Louisiana. They alleged in their petition that their property
was flooded on September 1 and 2, 2008, and that the flood
water was contaminated with creosote/pentachlorophenol, TPH
diesel, and other contaminates that originated at the Colfax
Treating Company's (Colfax) wood treating facility in
Pineville, which was allowed by permit to be disposed of
through Pineville's waste water system. When Hurricane
Gustav inundated Central Louisiana with heavy rains,
according to the petition, contaminated waste and storm water
overwhelmed Pineville's system and contaminated the
Colsons' property. The petition further alleges that the
contamination resulted in the Colsons' forcible and
unlawful eviction from their home. The Colsons sued both
Colfax and the City. The City is alleged to have failed to
timely activate pumps designated to evacuate waste and storm
water, failed to properly inspect or maintain those pumps
prior to the event, and allowed Colfax to improperly dispose
of these contaminates above legally-allowed limits.
Colsons' suit was joined with two other neighbors and
consolidated with a similar action filed by yet more
neighbors in the Church Street area. The other actions,
though, have all been dismissed.
City filed a motion for summary judgment on October 17, 2016,
in which it asserted that it was immune from liability
pursuant to the Louisiana Homeland Security and Emergency and
Disaster Assistance Act ("the Act"), La.R.S.
29:721-39. A second motion for summary judgment was filed the
same day and asserted that the City was not liable for
flooding, as the Red River, Atchafalaya, and Bayou Boeuf
Levee District was solely responsible for flood control
within the area of its operation, which includes the City of
Colsons filed oppositions to these motions, arguing that the
City violated applicable Environmental Protection Agency and
Louisiana Department of Environmental Quality statutes,
orders, and regulations governing waste water contaminants,
as well as requirements that it develop a plan to deal with
situations like it faced in Hurricane Gustav. Further, the
Colsons argued, the City was empowered by terms of its permit
to Colfax to order Colfax to cease releasing waste into its
system. In their opposition, the Colsons offered the
affidavit of Dr. Nicholas P. Cheremisinoff, Ph.D., a chemical
engineer with many years of experience in environmental
management and a CD containing several exhibits, which they
sought to authenticate through the affidavit of their
counsel. They also offered the deposition of Mr. Colson.
Colsons' exhibits presented in opposition to the
City's motion, other than the affidavits and deposition,
were contained on a compact disc. The City filed, in its
reply memorandum, an objection to all of the Colsons'
exhibits except Mr. Colsons' deposition.
Colsons sought a continuance of the hearing on the City's
motions because of outstanding discovery issues. Nonetheless,
the motions were heard by the trial court on January 9, 2017.
The trial court also heard the City's objections to
various exhibits and struck all exhibits besides Dr.
Cheremisinoff's affidavit and Mr. Colsons'
deposition. The Colsons then made a proffer of those
exhibits. The trial court rendered judgment in favor of the
Colsons on the issue of the City's immunity under the
Act. It ruled in favor of the City on the issue of flooding,
rendering judgment as follows (emphasis in original):
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED THAT the City of
Pineville's Motion for Summary Judgment based on
LSA-R.S. 38:291 et seq. is hereby GRANTED
and that all claims against the City of Pineville by
Plaintiffs for injuries and damages related to flooding are
hereby dismissed with prejudice at Plaintiffs' sole cost;
IT IS FURTHER HEREBY ORDERED, ADJUDGED, AND DECREED THAT all
of Plaintiffs' claims for damages resulting from the City
of Pineville's sewer system are not dismissed ...