LAUREN PIZZOLATO AND JOHN PIZZOLATO, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN
TERRY R. GRIER, SR.
Appealed from the 21st Judicial District Court In and for the
Parish of Livingston, State of Louisiana Trial Court No.
155369 Honorable Elizabeth P. Wolfe, Judge
F. WILLEFORD REAGAN L. TOLEDANO NEW ORLEANS, LA AND NICHOLAS
A. HOLTON NEW ORLEANS, LA ATTORNEYS FOR PLAINTIFFS
-APPELLANTS LAUREN PIZZOLATO AND JOHN PIZZOLATO, INDIVIDUALLY
AND ON BEHALF OF THEIR MINOR CHILDREN
M. BOLLINGER ATTORNEYS FOR JEFFREY E, McDONALD COVINGTON, LA
ATTORNEYS FOR DEFENDANTS -APPELLEES TERRY R, GRIER, SR.,
ENVIRONMENTAL MANAGEMENT & TESTING, LLC, AND ADMIRAL
BEFORE: WELCH, HIGGINBOTHAM, CHUTZ, PENZATO, AND LANIER, JJ.
appeal a judgment of the trial court sustaining
defendants' exception raising the objection of
prescription and dismissing plaintiffs' claims, with
prejudice. For the reasons that follow, we reverse and remand
for further proceedings.
case involves a claim by plaintiffs, Lauren Pizzolato and
John Pizzolato, against defendants, Terry R. Grier, Sr., his
employer, Environmental Management & Training, LLC
("EMT"), and insurer, Admiral Insurance Company
("Admiral"), for personal injuries and property
damage arising from alleged long-term exposure to mold and
extreme moisture in their home. According to the record,
plaintiffs contacted Mr. Grier, a professional engineer, in
the summer of 2015 regarding a mold and moisture problem they
were having in their home. Mr. Grier issued a report on July
7, 2015, recommending that plaintiffs install dehumidifiers
"to correct the problem of high humidity conducive to
the growth of mold." Mr. Grier advised plaintiffs to
have their air condition systems checked to be sure they were
functioning properly and also suggested having the slab
checked because of the possibility of water being soaked up
from the yard, through the slab, and into the floors. Mr.
Grier further suggested that plaintiffs use Sniper and
BioProtect to spot clean the mold. Mrs. Pizzolato testified
that they had the slab checked, and there were no problems
noted. Plaintiffs installed the dehumidifiers as recommended
and continually had the dehumidifiers checked to be certain
they were operating correctly.
Grier returned to the home in August 2015, after Mrs.
Pizzolato emailed him to say that though things seemed to be
better, they were "still seeing condensation in the home
and that it still felt damp." Mr. Grier issued a second
report on August 12, 2015. According to Mrs. Pizzolato, Mr.
Grier advised her that they needed to be patient because
"things were very wet and ... it shouldn't be a
problem as long as the dehumidifiers continued to function
properly." Mr. Grier reassured her, stating that it was
going to take a long time, Mrs. Pizzolato testified,
"[Mr. Grier] was ordering more Sniper for us to continue
maintaining it and I felt that that was all we needed to do,
was continue to do what he said and be patient."
Pizzolato indicated that during this time, she was pregnant
with her second child and was on bedrest from November 2015
until the birth of her son in January 2016. She explained
that she, her four-year old daughter, and her newborn son
"had all been sick" with "[s]inus issues,
breathing issues, [and] different stuff," and they were
not sure what was causing their health problems. Mrs.
Pizzolato stated that the humidity levels in the house
remained about the same through the winter and early spring
months, but that when they began using the air conditioner
again more regularly in May, they started to have more
concerns about the humidity becoming a problem again. She
testified, however, that it was not until July that they
found the mold had spread significantly to other places where
there was no mold before. Plaintiffs found mold in several
kitchen drawers and "[i]t spread to the other side of
[the] kitchen." Noting that "it was a significant
amount more on July 12, and then it seemed to just spiral
from July 12 forward," Mrs. Pizzolato indicated they
took their kitchen apart, took everything outside, and
sought a second opinion from Brent Driskill of Driskill
Environmental Consultants, LLC, who provided them with
detailed reports of his findings on July 29 and September 15,
2016. According to Mr. Driskill's findings, the home was
uninhabitable and not safe for humans based on the mold spore
count in the home. Plaintiffs filed suitagainst Mr. Grier
on May 4, 2017, alleging that the "professional
engineering advice given to plaintiffs was negligent and
below the standard of care and a cause in fact of
plaintiffs' damages." Plaintiffs asserted that
"the dehumidifiers not only did not correct the problem
of excessively high humidity in the home but, exasperated the
mold infiltration throughout the home."
Grier filed an answer generally denying the allegations of
the petition and an exception raising the objection of
prescription. He argued that plaintiffs "had actual
and/or constructive knowledge of their claim prior to April
27, 2016, and, as such, their claims [were] prescribed."
Plaintiffs filed an opposition to the exception, asserting
that their claims sound in contract rather than in tort and
that a 10- year prescription period applies; that negligence
causing long term exposure to mold is a continuing tort and,
thus, prescription did not begin to run until they vacated
the home in late 2016; and that contra non valentem
applies because plaintiffs neither knew nor had any reason to
know of Mr. Grier's tortious conduct prior to July 2016.
The matter proceeded to hearing on November 20, 2017, at
which time Mrs. Pizzolato testified. In written reasons for
judgment issued on December 29, 2017, the trial court
sustained the exception raising the objection of
prescription, dismissing plaintiffs' claims, with
prejudice. The trial court signed a judgment on January 31,
2018, in accordance with its findings.
appeal by plaintiffs followed. Plaintiffs argue that the
trial court erred in 1) granting the prescription exception;
2) finding no evidence of a contract between the parties; 3)
holding that plaintiffs' cause of action against Mr.
Grier accrued before April 28, 2016; 4) holding that
contra non valentem does not apply to suspend
prescription of plaintiffs' cause of action; and 5)
holding that Mr. Grier did not commit a continuing tort.
the burden of proof on an exception raising the objection of
prescription, evidence may be introduced at trial "to
support or controvert any of the objections pleaded, when the
grounds thereof do not appear from the petition." La.
Code Civ. P. art. 931. However, "[e]vidence not properly
and officially offered and introduced cannot be considered,
even if it is physically placed in the record. Documents
attached to memoranda do not constitute evidence and cannot
be considered as such on appeal." Denoux v. Vessel
Management Services, Inc., 2007-2143 (La. 5/21/08), 983
So.2d 84, 88. Generally, in the absence of evidence, the
objection of prescription must be decided based upon the
facts alleged in ...