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Colson v. Colfax Treating Co, LLC

Court of Appeals of Louisiana, Third Circuit

April 18, 2018

RONALD COLSON AND VIRGINIA COLSON, ET AL.
v.
COLFAX TREATING CO, LLC, ET AL.

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 236, 116 C/W 236, 112 HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

          Joseph J. Bailey Eli J. Meaux Provosty, Sadler, & deLaunay, APC COUNSEL FOR PLAINTIFFS/APPELLANTS: Virginia Colson Ronald Colson

          Daniel 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

          Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.

          SHANNON J. GREMILLION JUDGE.

         Plaintiffs/appellants, 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.

         FACTS AND PROCEDURAL HISTORY

         The 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.

         The 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.

         The 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 Pineville.

         The 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.

         The 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.

         The 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 ...

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