Nick Farone Music Ministry v. City of Bastrop
179 So. 3d 629
La. Ct. App.2015Background
- Farone (Nick Farone Music Ministry d/b/a New Beginnings Christian Center) sued the City of Bastrop after a deteriorating drainpipe on Farone’s property caused a sinkhole in its parking lot; the city had previously performed repairs but stopped.
- At an initial bench trial the court dismissed the suit, citing discretionary immunity; this court reversed on appeal, holding the city had used the drain for a public purpose, had notice, and had previously repaired it.
- On remand Farone sought mandamus to force repair; the writ was denied and trial resumed. The trial court barred Farone from introducing new evidence not pled but permitted proof of new damages if the petition were amended; Farone did not amend.
- The trial court found the city did not own the pipe or possess a servitude but had assumed responsibility through prior repairs, making it liable for replacement costs.
- The trial court awarded $11,430 (based on a contractor’s estimate) for removing the old drainpipe and installing a new one, but denied Farone’s claim for loss of business income.
- Farone appealed only the damages award, arguing the trial court abused its discretion by failing to award lost business income (claimed at $297,400 for 2008–2014 based on testimony of its tax preparer).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Farone proved special damages for lost business income attributable to the city’s failure to repair | Farone: tax preparer testimony shows $148,730 loss (2008–2010) and $297,400 (2008–2014) — damages should be awarded | City: plaintiff failed to prove lost profits with reasonable certainty or causation; evidence speculative | Held: Trial court did not err — lost business income not proven with reasonable certainty or causation; award denied |
| Whether the trial court’s $11,430 award for pipe replacement was adequate | Farone: award is abusively low because it omits lost business income | City: only replacement/removal costs proved; no basis for lost income award | Held: $11,430 supported by contractor estimate; affirmed |
Key Cases Cited
- Smith v. Escalon, 117 So.3d 576 (La.App. 2d Cir. 2013) (special damages must be specifically pled and proven with reasonable certainty)
- Bailes v. U.S. Fidelity & Guar. Co., 512 So.2d 633 (La. App. 2d Cir. 1987) (loss of business income is a special damage requiring reasonable certainty)
- Rosenblath v. Louisiana Bank & Trust Co., 432 So.2d 285 (La. App. 2d Cir. 1983) (special damages cannot be based on speculation)
- Peacock's, Inc. v. Shreveport Alarm Co., 510 So.2d 387 (La. App. 2d Cir. 1987) (plaintiff must show lost income more probably than not attributable to defendant)