CHRIS MARKERSON, JR. AND AMY MARKERSON
COMPOSITE ARCHITECTURAL DESIGN SYSTEMS, LLC, 2LONG, LLC, THE CITY OF GONZALES AND BARNEY ARCENEAUX
Appealed from the 23rd Judicial District Court In and for the
Parish of Ascension State of Louisiana
Christopher T. Cascio Baton Rouge, Louisiana Counsel for
Defendant/Appellant Composite Architectural Design Systems,
Segura Landry Gonzales, Louisiana Counsel for
Defendant/Appellant 2Long, LLC
Anne Wolf Chelsea A. Payne Baton Rouge, Louisiana Counsel for
Plaintiffs/Appellees Chris Markerson, Jr. and Amy Markerson
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
Architectural Design Systems, LLC (CAD) and 2Long, LLC
(2Long) appeal the judgment of the Twenty-Third Judicial
District Court that found in favor of Chris Markerson, Jr.
and Amy Markerson. 2Long has also filed a peremptory
exception of prescription with this Court. For the following
reasons, we deny the peremptory exception, affirm the
judgment in part, and reverse in part.
AND PROCEDURAL HISTORY
of 2014, Chris and Amy Markerson purchased a home located in
Gonzales, Louisiana. At the time of the purchase, an adjacent
lot contained vacant buildings zoned by the City of Gonzales
(the City) as "B-1," or a limited business
August 28, 2014, 2Long purchased the adjacent lot and was
informed by real estate broker Melissa Warren of the zoning
restriction at the time of the closing on August 29, 2014.
Ms. Warren advised Todd Long, a member and co-owner of 2Long,
that his anticipated business operations on the property may
not fall within the zoning restrictions and that he should
forward any questions he had regarding the issue to the City.
In the weekend following the closing, CAD, who began leasing
the disputed property from 2Long, moved its business onto the
premises. CAD, an aluminum composite material (ACM)
fabricator, was advised by Mr. Long to get in touch with the
City regarding zoning restrictions.
first issued a "retail occupational" business
license from the City on September 4, 2014, then renewed the
license before its expiration on November 11, 2014. The
Markersons alleged that CAD operated its business all day and
all night, using a rotary saw to cut sheets of metal, which
was extremely loud. They further alleged that bright lights
from trucks at CAD's business shone directly into their
bedroom window through the night. The Markersons claimed to
have recorded twenty-five instances of the disruptive
activities from November 2014 to April 2015.
Markerson alleged he had advised the City that CAD was in
violation of the zoning ordinance, claiming the noise to be a
nuisance, and formally requested that the City investigate
and rectify the situation. The City subsequently took sound
measurements on the disputed property. On January 9, 2015,
Clay Stafford, clerk for the City, informed Mr. Markerson
that CAD was made aware of the Markersons' complaints and
that CAD explained the noise was due to renovations that were
being made on the property. Mr. Stafford further explained
that CAD assured the City that the renovations had been
completed, and upon the City's measuring the sound levels
on the disputed property, the noise "barely
registered." The Markersons claimed the City took no
further action to enforce the zoning restriction.
8, 2015, the Markersons filed a petition for injunction and
damages, or, in the alternative, for a writ of mandamus. The
Markersons made the aforementioned allegations and further
alleged that the activities of 2Long and CAD constituted a
nuisance, causing a permanent diminution of their value and
enjoyment of their property. The Markersons petitioned the
trial court to enjoin 2Long and CAD from further conducting
its business of fabricating ACM at the disputed property and
to award damages for nuisance. In the alternative, the
Markersons petitioned for a writ of mandamus against the City
and its mayor to enforce its zoning ordinances with respect
to the disputed property.
October 5, 2015, the Markersons filed a supplemental and
amending petition for damages against 2Long and CAD, in which
they claimed both parties had violated the Louisiana Unfair
Trade Practices and Consumer Protection Law (LUTPA), La. R.S.
51:1401, et seq. Specifically, the Markersons claimed that
2Long "knowingly purchased a B-l zoned property with the
intention of leasing the property to [CAD], and knew or
should have known that [CAD]'s business operations
violated the zoning ordinances." As to CAD, the
Markersons claimed "[CAD] misrepresented the extent of
its business operations by representing to [the City] that
the loud rotary saw used in its fabrication business was only
used temporarily during renovations, when in fact the loud
saw was and continues to be used to fabricate products."
Pursuant to La. R.S. 51;1409(A), the Markersons prayed for
November 12, 2015, the Markersons filed a motion for partial
summary judgment to permanently enjoin 2Long and CAD from
using the disputed property in violation of the zoning
ordinance. In a judgment and order signed January 20, 2016,
the trial court granted the partial summary judgment, finding
CAD to be in violation of the City's zoning ordinance and
enjoining 2Long and CAD from conducting business on the
disputed property in violation of the zoning
ordinance. The trial court further issued a writ of
mandamus against the City to enforce the zoning ordinance on
the disputed property.
motion to set status conference and trial date filed on March
24, 2016, the Markersons claimed that despite the partial
summary judgment, injunction, and writ of mandamus, 2Long and
CAD continued to violate the City's zoning ordinance in
contravention of the trial court's order with the same
activities of loud noise and bright lights both day and
night, including weekends. After a bench trial, the trial
court signed a judgment on May 10, 2017, finding 2Long and
CAD liable in solido to the Markersons for nuisance
violations, violations of the trial court's injunction
order, and pursuant to LUTPA. Chris and Amy Markerson were
each awarded $20, 000.00 in damages for the nuisance
violations and violation of the injunction, with interest and
costs. Pursuant to LUTPA, the trial court awarded to Chris
Markerson $1, 049.99 in costs for surveillance fees and also
awarded reasonable attorney's fees to the Markersons,
which were to be determined by a subsequent show cause
hearing. Both 2Long and CAD have appealed.
to the appeal, 2Long filed a peremptory exception of
prescription with this Court, claiming that the
Markersons's supplemental and amending petition for
injunction and damages, which raised LUTPA as a cause of
action, was prescribed on its face pursuant to La. R.S.
has cited the following assignments of error:
1. The trial court committed manifest error in finding the
Markersons's claims fall under the protection of LUTPA as
set forth in La. R.S. 51:1409.
2. The trial court committed manifest error in determining
the actions of 2Long and CAD were a violation of LUTPA under
La. R.S. 51:1401, et seq.
3. The trial court's finding of an ascertainable loss of
money by the Markersons as required under La. R.S. 51:1409
was manifest error.
4. The trial court committed manifest error in its
evidentiary rulings by:
A. Considering evidence not introduced into the record at
B. Accepting the Markersons's exhibit P-21 into evidence
when the Markersons failed to lay a foundation and
authenticate each video included on the exhibit.
C. Accepting Exhibit P-22 into evidence as a summary when the
underlying materials were not so voluminous they could not be
conveniently examined in court and by not requiring the
evidence being summarized to be admitted.
D. Striking the police officers listed as witnesses by 2Long
in the pre-trial order.
5. The trial court committed manifest error in finding that
the fabrication operations of CAD were a nuisance under La.
C.C. art. 667.
6. The trial court's award of $20, 000.00 to each
plaintiff for loss of use and enjoyment of property, stress
and anxiety as a result of the nuisance violations was
7. The trial court committed legal error by expanding the
pleadings to render a judgment of ...