PETTIGREW, Judge.
Plaintiffs, Dwight Allen Woosley and Barbra Griffith Woosley, appeal a grant of summary judgment that dismissed all of their claims against defendants, the Parish of East Baton Rouge, the City of Baton Rouge/Parish of East Baton Rouge Department of Public Works ("City/Parish") and Evans-Graves Engineers, Inc. ("Evans-Graves"), with prejudice. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
According to the record, the Woosleys purchased their home, which is situated in the Biltmore Subdivision on 14970 Brent Avenue, Central City, Louisiana, on December 10, 1976, and have continuously resided there since that time. Prior to the Woosleys' purchase of the home, a sewer line was installed east of the City/Parish's servitude for public utilities along the west sideline of the property in question. The Woosleys allege that it was not until they constructed a garage on their property in 1979 that they became aware of this buried sewer line on their property. Following numerous unsuccessful attempts to get the sewer line removed from their property, the Woosleys filed a tort action on May 6, 2009, against the City/Parish and Evans-Graves. In connection therewith, the Woosleys claimed that both the City/Parish and Evans-Graves were liable for trespass and all damages sustained by the Woosleys as a result of said trespass.
In response to said petition for damages, the City/Parish filed a general denial. Subsequently the City/Parish filed a motion for summary judgment as to the Woosleys' original petition, urging that the Woosleys' claims were prescribed. The motion filed by the City/Parish was supported by deposition excerpts from the Woosleys. Evans-Graves filed an exception raising the objection of peremption; however, there is no indication in the record that this exception was ever heard by the trial court. Rather, Evans-Graves subsequently sought to dismiss the Woosleys' claims through the filing of a motion for summary judgment. Evans-Graves argued that it was entitled to summary judgment because the Woosleys' claims were perempted and because the Woosleys had no expert witness to testify that Evans-Graves deviated from the standard of care for an engineer. Evans-Graves' claim of peremption was based on La. R.S. 9:2772 and 9:5607.
The Woosleys subsequently filed a first amending petition asserting a petitory action in connection with what they alleged was basically a predial servitude being used and operated by the City/Parish and Evans-Graves. In the first amending petition, the Woosleys sought a judgment 1) recognizing them as the owners of the predial servitude; 2) recognizing their right to peaceful possession of the predial servitude; and 3) requiring the defendants to remove the sewer line and impacted soil from their property and repair all damage caused by their use and occupation of the predial servitude.
According to the record, the City/Parish filed a general denial as to the first amending petition by the Woosleys. There are no other pleadings by the City/Parish in the record before us concerning either the original petition or the first amending petition filed by the Woosleys. In response to the first amending petition, Evans-Graves filed an exception raising the objection of peremption, adopting and reurging the arguments it had previously made with respect to the original petition. However, Evans-Graves failed to set the exception for hearing. Rather, Evans-Graves filed a supplemental memorandum in support of its original motion for summary judgment, reurging all arguments in support of its original motion for summary judgment. Thereafter, Evans-Graves filed a second motion for summary judgment seeking dismissal of the Woosleys' first amending petition, along with a motion for sanctions, arguing that a reasonable legal inquiry had not been conducted by the Woosleys prior to the filing of any pleadings. Evans-Graves asserted that the Woosleys and their attorneys filed the original and amending petitions unsupported by evidence and with full knowledge that the allegation that Evans-Graves installed the sewer line was false.
After filing their first amending petition, the Woosleys filed an opposition to the motions for summary judgment filed by the City/Parish and Evans-Graves. Initially, the Woosleys noted that neither the City/Parish nor Evans-Graves had supplemented the pending summary judgment motions to discuss the petitory action set forth in the first amending petition.
The Woosleys subsequently filed a motion for summary judgment on their petitory action, seeking judgment 1) recognizing them as the owners of the predial servitude; 2) recognizing their right to peaceful possession of the predial servitude; and 3) requiring the defendants to remove the sewer line and impacted soil from their property and repair all damage caused by their use and occupation of the predial servitude. In support of their motion, the Woosleys submitted various documents pertaining to their property, including the subdivision restrictions and the cash sale dated December 10, 1976, and an affidavit by Mr. Woosley.
Following a hearing on December 5, 2011, the trial court denied the Woosleys' motion for summary judgment and granted the motions for summary judgment filed by the City/Parish and Evans-Graves. The trial court further ruled that the motion to strike was moot and denied the motion for sanctions, finding that the Woosleys' claims did not meet the level of frivolous litigation. A judgment to this effect was signed by the trial court on December 21, 2011, dismissing all claims by the Woosleys against the City/Parish and Evans-Graves, with prejudice.
It is from this judgment that the Woosleys have appealed, assigning the following specifications of error:
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact.
Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues.
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. Code Civ. P. art. 966(C)(2);
After hearing argument from the parties at the hearing on the motions for summary judgment, the trial court offered the following reasons for judgment:
Following our review of the record before us, we agree with the trial court that judgment in favor of the City/Parish and Evans-Graves on the tort action was warranted, but for reasons other than those given by the trial court. Under the unique facts and circumstances of this case, the Woosleys have failed to state a cause of action against either the City/Parish or Evans-Graves for trespass in their original tort action, and, thus, their claims should have been dismissed accordingly.
Louisiana Code of Civil Procedure article 927(B) provides that a plaintiff's failure to disclose a cause of action to institute the suit may be noticed by either the trial or appellate court on its own motion.
The installation of the sewer line was the injury producing event from which the Woosleys' tort-based cause of action for trespass necessarily arose. The record is clear that the sewer line was installed sometime prior to the Woosleys' purchase of the property in 1976. Moreover, Mr. Woosley acknowledged in his deposition that it was his understanding that a third party, Sullivan Construction, was the company that actually installed the sewer system in his neighborhood. Thus, it follows that any cause of action that the Woosleys may have for trespass on their property would properly be against Sullivan Construction, not against the City/Parish or Evans-Graves, as neither of these parties had anything to do with the actual installation of the sewer line in question. Accordingly, we conclude the Woosleys have failed to state a cause of action for trespass for which relief may be granted against the City/Parish and Evans-Graves, and their tort action is hereby dismissed. Our inquiry, however, does not end here.
In its reasons for judgment, the trial court made reference to the Woosleys filing suit "alleging trespass on their property for installation of the sewer line along the side of their property prior to their purchasing the property" and whether their claims were "prescribed and/or barred by peremption." The trial court makes no mention of the Woosleys' first amending petition alleging a petitory action against the City/Parish and Evans-Graves. Instead, the trial court simply denied the motion for summary judgment filed by the Woosleys on this very issue.
Pursuant to La. Code Civ. P. art. 3651, a "petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership." The proof of ownership required in a petitory action is set forth in La. Code Civ. P. art. 3653 as follows:
Evans-Graves addressed the Woosleys' petitory action and filed a second motion for summary judgment seeking dismissal of the Woosleys' claims. In support of its motion, Evans-Graves submitted a second affidavit from John A. Graves, in which Mr. Graves attested that Evans Graves finished its work in connection with the project in question in 1974 and that Evans-Graves had never controlled, possessed, used, or occupied the buried sewer line on the Woosleys' property.
While the City/Parish filed a general denial as to the Woosleys' petitory action, it appears from the record that the City/Parish did little else with respect to this issue prior to the hearing before the trial court. We have thoroughly reviewed the record on appeal and find no opposition by the City/Parish to the Woosleys' summary judgment motion.
Based on our review of the evidence, we find there are no genuine issues of material fact remaining as to any of the issues relative to the Woosleys' petitory action against Evans-Graves. Accordingly, summary judgment in favor of Evans-Graves was appropriate, and all claims by the Woosleys against Evans-Graves were properly dismissed by the trial court below. However, with respect to the City/Parish, we find there is sufficient evidence in the record to create a genuine issue of material fact concerning the Woosleys' petitory action against the City/Parish. Thus, we reverse that portion of the judgment that denied summary judgment in favor of the Woosleys as it relates to the City/Parish and remand for further proceedings.
For the above and foregoing reasons, we affirm that portion of the December 21, 2011 judgment that granted the motions for summary judgment filed by Evans-Graves and dismissed all claims filed by the Woosleys against Evans-Graves, with prejudice. We likewise affirm that portion of the judgment that dismisses the Woosleys' claims in trespass against the City/Parish. We reverse that portion of the judgment that dismisses the petitory action claim asserted by the Woosleys against the City/Parish. We also reverse that portion of the judgment that denied the motion for summary judgment filed by the Woosleys, only as it relates to their petitory action against the City/Parish, and remand for further proceedings. In all other respects, the judgment is affirmed. Appeal costs in the amount of $1,880.32 are assessed equally against the Woosleys and City/Parish.
And La.R.S. 9:5607(A) provided, in part, as follows:
