Todd Rebstock, Monica Matherne, Joey Matherne and Aaron Guidry VS Seismic Exchange, Inc. and Suncoast Land Services, Inc.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 CA 0540 TODD REBSTOCK MONICA MATHERNE JOEY MATHERNE AND AARON GUIDRY VERSUS SEISMIC EXCHANGE INC AND SUNCOAST LAND SERVICES INC V N Judgment Rendered 1 201 On Appeal from 17th Judicial District Court In and for Parish of Lafourche l i State of Louisiana Tria1 Court No 110098 The Honorable Ashly Bruce Simpson Judge Presiding Jerald P Block Thibodaux Louisiana Attorney for Plaintiffs Appellants Carl D Rosenblum Attorney for DefendandAppellee New Orleans Louisiana BEFORE Todd Rebstock Monica Matherne and Joey Matherne Seismic Exchange Inc J WHIPPLE C WELCH AND CRAIN JJ CRAIN J Plaintiffs Todd Rebstock Monica Matherne and Joey Matherne appeal a judgment sustaining a peremptory exception raising the objection of prescription and dismissing their claims against Seismic Exchange Ina SEI We affirm in part reverse in part and remand FACTS AND PROCEDURAL HISTORY On August 29 2008 the plaintiffs instituted suit against SEI They alleged that in September 2007 SEI conducted vibratory seismographic testing that caused property damage to their homes In response SEI filed a peremptory exception of prescription asserting that the testing occurred on August 11 2007 and that this suit filed more than one year later is barred After a two hearing the trial court determined that SEI proved that the day testing occurred on August 11 2007 and that SEI met its initial burden of proving that the suit filed more than one year later on August 29 2008 was untimely The trial court then found that the plaintiffs failed to prove that they did not acquire or should not have acquired knowledge of their damages until on or after August 29 2007 The trial court sustained the exception and dismissed the plaintiffs claims against SEI with prejudice at the plaintiffs cost The plaintiffs now appeal DISCUSSION Liberative prescription is a mode of barring actions as a result of inaction for a period of time La Civ Code art 3447 Delictual actions are subject to a liberative prescription of one year which commences to run from the date the injury or damage is sustained La Civ Code art 3492 However w hen damage is caused to immovable property the one year prescription commences to Aaron Guidry is also a plaintiff in the underlying suit but his claims were not dismissed by the jud before the court on appeal and are not considered in this appeal Plaintiffs nent claims against a second named defendant SunCoast Land Services Inc were voluntarily dismissed without prejudice 2 run from the day the owner of the immovable acquired or should have acquired knowledge of the damage La Civ Code art 3493 Tracts of land with their component parts including buildings belonging to the landowner are immovables La Civ Code arts 462 463 Exxon Corp v Foster Wheeler Corp 00 La 2093 App 1 Cir 12 805 So 2d 432 435 writ denied 02 La 3 O1 28 0261 02 28 812 So 2d 633 Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished Mallett v McNeal OS 2289 La 10 939 So 2d 1254 1258 Generally the burden of proving an 06 17 action is prescribed lies with the party pleading prescription Hogg v Chevron USA Inc 09 La 7 45 So 3d 991 998 An exception to this general 2632 10 6 rule exists when the face of the petition shows that it is prescribed in which case the burden shifts to the plaintiff to prove that prescription was interrupted or suspended Bailey v Khoury 04 La 1 891 So 2d 1268 1275 0620 OS 20 Stated another way it is only when the plaintiff claim is prescribed on the face of s the petition that the initial burden of proof is shifted to the plaintiff to prove that the claim is not prescribed The party urging the application of an exception to the general rule on prescription has the burden of proving that the exception applies Cf Roba Inc v Courtney 09 La App 1 Cir 8 47 So 3d 500 506 0508 10 10 Consequently the burden of proof does not shift to the plaintiff unless the defendant can establish that the face of the plaintiff s petition reveals that the plaintiff knew or should have known of the damage more than one year before the petition was filed Sadler v Midboe 97 La App 1 Cir 12 723 So 2120 98 28 2d 1076 1082 In this case although the plaintiffs petition references the alleged date of the seismographic testing it does not state a specific date when the plaintiffs 3 learned of the alleged damage The perition alleges that the seismographic testing was performed in September 2007 which makes the petition filed on August 29 2008 not facially prescribed Because the petition does not allege that plaintiffs knew or should have known of the damage more than one year prior to the suit the burden of proof did not shift to plaintiffs to prove a suspension or interruption of prescription Rather the burden of proving prescription remains with the defendant who is urging the exception Cf Naguin v Bollinger Shipyards Inc 1217 11 La App 1 Cir 9 102 So 3d 875 880 writs denied 12 La 12 7 2676 13 8 2 108 So 3d 87 and 12 La 2 108 So 3d 93 The trial court 2754 13 8 erred in placing the initial burden of proof relative to prescription on the plaintiffs The introduction of evidence to support or controvert the objection of prescription is permitted when the grounds do not appear on the face of the petition Pal v Strancq Inc 10 La App l Cir 8 76 So 3d 477 1507 11 3 485 writ denied 1834 11 11 4 La 11 75 So 3d 925 When evidence is received the trial court factual findings are generally reviewed under the s traditional rules governing appellate review of facts meaning that the trial court s factual determinations regarding prescription should not be reversed in the absence of manifest error Naquin 102 So 3d at 878 However where one or more legal errors by the trial court interdict the fact process the manifest error finding standard is no longer applicable and if the record is otherwise complete the reviewing court should make its own independent de novo review and assessment of the record Campo v Correa O1 La 6 828 So 2d 502 510 2707 02 21 Application of an improper burden of proof calls for de novo review of the evidence Campo 828 So 2d at 510 The critical question presented in this appeal is when the plaintiffs acquired or should have acquired knowledge of the alleged property damage La Civ Code a art 3493 Hogg 45 So 3d at 997 Although the petition alleges that the seismographic testing occurred in September 2007 it was established at the hearing on the exception that the testing actually occurred on August 11 2007 Therefore if plaintiffs knew or should have known of the property damage before August 29 2007 then the petition filed on August 29 2008 is untimely The prescriptive period is triggered by actual or constructive knowledge of Hogg 45 So 3d damage at 997 Thus a plaintiff need not have actual knowledge or even full knowledge of the extent of his damage Marin v Exxon Mobil Corp 09 La 10 48 So 3d 234 245 A prescriptive period 2368 19 will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same Gallant Investments Ltd v Illinois Cent R Co 08 La App 1 Cir 1404 09 13 2 7 So 3d 12 19 Prescription commences upon whatever notice is enough to excite attention and put the injured party on guard or call for inquiry Hogg 45 So 3d at 997 When immovable property has been damaged knowledge sufficient to start the running of prescription is the acquisition of sufficient information which if pursued will lead to the true condition of things Marin 48 So 3d at 246 This date has been found to be the date the damage becomes apparent Marin 48 So 3d at 246 The analysis is the same as the discovery rule of the jurisprudential doctrine of contra non valentem Marin 48 So 3d at 245 A plaintiff is deemed to know what he could have leamed through the exercise of reasonable diligence and cannot rely on ignorance attributable to his own willfulness or neglect Marin 48 So 3d at 246 The testimony at the hearing established that in July and August of 2007 SEI conducted seismographic testing as part of the Bully Camp Survey Plaintiffs homes are within the geographic boundaries of the survey The testing involved a 5 convoy of four vibroseis trucks specially designed to generate energy to create seismic waves in residential or urban areas Vibrations generated by the seismic waves were measured with a seismograph to map layers of the Earth crust for s purposes of petroleum exploration The testing also involved cables or wires laid on the ground across properties of those who agreed which were described as being larger than an extension card and obvious to property owners Prior to the actual testing SEI sought and obtained permits from landowners relating to the testing which granted SEI the right to conduct geophysical explaration surveys by seismograph for a one period year Rebstock refused to sign the permit but testified that he allowed cables to be run across his property Monica Matherne signed two permits dated February 27 2007 and July 2 2007 identifying separate tracts of land and was compensated far doing sq but denied reading the documents and upon examination believed that the properties described were family properties and not the house she alleges was damaged In connection with the testing cables were laid across all of the plaintiffs properties which remained on the ground for one to two weeks The evidence introduced at the hearing establishes and the trial court found that the seismographic testing near plaintiffs homes took place on August 11 2007 Rebstock denied being at home when the testing occuned He testified that he learned of the testing a few days later from another neighbor who complained that the testing had shaken his house That neighbor gave Rebstock the business card of Adam Young who contracted with SEI as a land man in connection with the Bully Camp Survey The neighbor described Young as the man to call with complaints Within days of receiving the business card Rebstock called Young because he was upset about the seismographic activity in the neighborhood and wanted 6 I someone to check his house believing that the testing shook it and could have caused damage Young recalled the phone call taking place within three to four days of the August 11 testing with the latest possible date being August 18 Young testified that Rebstock was angry and concemed that the vibroseis trucks had damaged his home although Young could not recall the specific complaints Young informed Rebstock that SEI would respond to the complaints and likely send someone over Thereafter SEI sent Rudy Ledet another contractor whose wife is a ftrst cousin of Rebstock along with another individual from the company that SEI s contracted to monitor the vibration levels to photograph and document any damage to Rebstock house Ledet believed that his supervisor at SEI contacted s him about going to Rebstock house approximately four to five days before s completion of the Bully Camp Survey on August 23 2007 Ledet testified that the meeting with Rebstock occurred within one week ofhis supervisar calling him and at that meeting Rebstock pointed out potential damage that he believed was caused by SEI We find that SEI established that Rebstock had constructive knowledge of the alleged damage at the time he called Young By that time Rebstock knew that the seismographic testing had occurred and had potentially shaken his house Rebstock admitted that he was upset and prior to calling Young looked around his house a little and thought he saw a little bit of damage It is undisputed that the call to Young occurred prior to Rebstock meeting s with Ledet Ledet recalled that the seismographic activiry for the Bully Camp Project was still going on at the time his SEI supervisor called and instructed him to meet with Rebstock Eric Schuster an SEI project manager testified that the testing far that project concluded on August 23 2007 Thus the record establishes that Rebstock sphone call to Young occurred prior to August 23 2007 At the time of the call Rebstock had notice enough to excite his attention and call for inquiry thereby equating to constructive knowledge that commenced the running of the one prescriptive period Cf Hogg 45 So 3d at 997 SEI satisfied its year burden of proving that Rebstock claims had prescribed when the petition was s filed on August 29 2008 Rebstock argues that application of the third category of contra non valentem prevents the running of prescription due to actions by SEI that prevented him from availing himself of his cause of action The Louisiana Supreme Court has explained that t category of contra non valentem is implicated only his when 1 the defendant engages in conduct which rises to the level of concealment misrepresentation fraud or ill practice 2 the defendant actions s effectively prevented the plaintiff from pursuing a cause of action and 3 the plaintiff must have been reasonable in his or her inaction Marin 58 So 3d at 252 citations omitted The testimony at the hearing established that Rebstock believed SEI caused damage to his house at the time he called Young and at the time he met with Ledet Addirionally Ledet testified that the entire cornmunity knew about SEI in connection with the Bully Camp Survey The evidence does not support the assertion that SEI acted to prevent plaintiffs from pursuing their causes of action and therefore does not support application of the third category of contra non valentem See Marin 58 So 3d at 252 253 Monica Matherne chief complaint is of cracks around the edges of her s swimming pool which could have appeared in August or September 2007 As previously set forth she aclrnowledged signing two permits allowing SEI to conduct seismographic testing but denied reading them and upon examination believed that they related to family property S but not her home She further acknowledged seeing the cables on her property and stated that she questioned a neighbor who told her they were seismogaphing She is certain the cracks around the pool did not appear befare the time the cables were on her property Monica Matherne testified that she did not learn that the seismographic testing had occuned until she showed the cracks to Rebstock who told her there had been some seismogaphing that may have caused them She did not know if that conversation occurred before or after Rebstock met with Ledet but believed that she spoke with Rebstock in September 2007 Monica Matherne shusband Joey Matherne did not inspect the pool and had no independent recollection of when the cracks appeared Further he indicated that his wife Monica handled the home implying that he did not have knowledge of facts sufficient to put him on notice prior to Monica acquiring that knowledge The testimony at the hearing does not establish the date Monica Matheme first noticed the cracks around the pool or the date of her conversation with Rebstock in which she learned the testing had occurred z In contrast to Rebstock SEI had no phone calls from the Mathernes or meetings with them through representatives that would indicate the date they were in possession of sufficient facts to constitute constructive lrnowledge The trial court after finding that the burden of proof rested with the Mathernes stated that it is equally probable that she discovered the damage prior to August 29 2007 According to the trial court Matherne could not say whether the cracks in her pool appeared before or after August 29 2007 so the trial court held that she did not carry her burden of proving that her claims were timely Considering the same evidence as the trial court but placing the burden of proof with SEI we find that it is equally probable that z he record also does not contain photographs showing the severity of the cracks 9 Matherne discovered the damage after August 29 2007 Therefore SEI failed to prove that the Mathemes claims were prescribed CONCLUSION Far the foregoing reasons the trial court judgment sustaining the s peremptory exception raising the objection of prescription and dismissing the claims of Todd Rebstock is affirmed The trial court judgment sustaining the s peremptory exception raising the objection of prescription and dismissing the claims of Monica Matherne and Joey Matherne at their costs is reversed This matter is remanded for further proceedings Costs of this appeal are assessed equally between Seismic Exchange Inc and Todd Rebstock AFFIRMED IN PART REVERSED IN PART AND REMANDED io
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