MCQUITTY v. FISHER (2025)

This appeal involves a lawsuit filed by a husband and wife against their neighbors, complaining that the discharge from the neighbors’ septic system into the common area of Briar Ridge subdivision in Lafayette is unsanitary and a nuisance. The trial court granted partial summary judgment, in favor of the owners of the septic system, finding the septic system was in compliance with the Louisiana Sanitary Code and City of Lafayette ordinances. The couple appealed the judgment asking the court to compel the neighbors to comply with the Louisiana Sanitary Code and city ordinances.

FACTS

Nannette Fisher acquired property on Renee Avenue through a donation from her mother in 2003. This house is not part of Briar Ridge subdivision. She and her husband David renovated the home and were approved by the Louisiana Department of Health and Hospitals, Office of Public Health, to install an on-site wastewater treatment system in 2004. The state sanitarian selected an effluent reduction field system which uses absorption to reduce effluent volume. According to the permit issued, this field is not visible above ground and cannot be driven over or paved or built on. It was decided that the back ditch/canal along the south side of the Fishers’ property would provide adequate drainage. The mechanical plant was installed in 2005. The effluent was discharged into a drainage ditch located in the common area of Briar Ridge subdivision.

In 2013, the McQuittys purchased a house in Briar Ridge subdivision. The backyard of their house is adjacent to the common area where the drainage ditch is located.

In 2014, a complaint was filed by Eleanor Buoy with the State of Louisiana Department of Health, Sanitarian Services, stating that the Fishers’ septic system may not be operating properly. Ms. Buoy also lived in Briar Ridge subdivision. After it was inspected, the Fishers received notice from the Department of Health that they needed to service the system and provide perpetual maintenance on the system. The Fishers replaced a blower and had the system pumped out. It was reinspected and found to be in satisfactory working condition.

On May 1, 2023, Mrs. McQuitty went to see Susan Trahan with Louisiana Sanitarian Services. Ms. Trahan was the sanitarian manager for Lafayette Parish. Mrs. McQuitty complained to Ms. Trahan that the Fishers’ septic discharge line was over the property line. Ms. Trahan explained that the discharge line was not supposed to be over the property line but that was not an issue that Sanitarian Services could determine. She informed Ms. McQuitty she would need to file suit to address that issue. The McQuittys filed a formal complaint with Sanitarian Services in May 2023, stating that the Fishers’ septic system was in violation of the Louisiana Sanitary Code and City of Lafayette ordinances. The McQuittys complained that the tank, drain field, and discharge line were emitting noxious odors. The McQuittys claimed that the Fishers were required to connect to the city sewer line instead of discharging the effluent in the ditch.

On June 1, 2023, Vickie Collins, the regional director with Sanitarian Services of Region Four, which includes Lafayette Parish, inspected the septic system. Sid Lange, also an employee with Sanitarian Services, attended the inspection. They observed that the septic system appeared to be functioning properly. The aerator was running, and the effluent was clear and odorless. They attested that they were not requiring the Fishers to abandon their existing, approved septic system. The Fishers also provided a receipt for service indicating the septic system had been pumped out on February 7, 2023.

On July 24, 2023, the McQuittys filed suit against the Fishers seeking to fix the boundary in addition to seeking injunctive relief and damages. The Fishers filed an exception of no right of action alleging that the McQuittys had no legal ownership to the Briar Ridge subdivision common area. The McQuittys also filed exceptions of no right and no cause of action claiming the Fishers had no right to recover damages, attorney fees, or costs for what the Fishers claimed was a frivolous lawsuit. A hearing on the exceptions was held on November 20, 2023, with the Fishers agreeing that the boundary line was what was indicated in a 2019 survey. The trial court further found that the McQuittys are property owners by way of easement and have a right to assert damages to the subdivision common area. The matter of injunctive relief and damages was left to be decided at a another time.

Subsequently, the McQuittys and the Fishers filed cross motions for partial summary judgment. The Fishers claimed they were entitled to judgment that they are not mandated to connect to the City sewer system and that their system has been maintained. The McQuittys sought summary judgment, claiming that the Fishers “own and operate an onsite individual sewerage system which is not in compliance with the Louisiana Sanitary Code or applicable Lafayette Consolidated Government ordinance[.]” A hearing on these motions was held on March 31, 2025. The trial court denied the motion for summary judgment filed by the McQuittys but granted the motion filed by the Fishers. A judgment was signed on May 6, 2025, finding the Fishers’ septic sewage system was in full compliance with the Louisiana Sanitary Code and applicable City of Lafayette ordinance. The trial court designated the judgment as a final judgment for immediate appeal. The McQuittys then filed the present appeal.

SUMMARY JUDGMENT

The McQuittys’ four assignments of error concern the trial court's denial of their partial summary judgment and grant of partial summary judgment in favor of the Fishers, finding that the Fishers’ septic sewage system was in compliance with the Louisiana Sanitary Code and applicable City of Lafayette ordinance. In the present case, the McQuittys disagree with the determination that the Fishers have not violated the Louisiana Sanitary Code with the operation of their sewage plant and its discharge location into the Briar Ridge subdivision common area.

The McQuittys argue that the Fishers are discharging septic effluent across the property line and into the common area behind the McQuittys’ home without a servitude or permission of Briar Ridge subdivision. They also argue that the Louisiana Sanitary Code and the permit issued for the sewage system required a 200-foot effluent reduction field, but it was only 120 feet according to the certificate of the installer. The McQuittys additionally complain that the Fishers drive cars and heavy machinery over the effluent reduction field, and maintenance of their system has been spotty and haphazard. Lastly, they claim that the Fishers are required by both the Louisiana Sanitary Code and a City of Lafayette ordinance to connect to the City of Lafayette sewer line which is only 200 feet away.

Ordinarily, an appeal may not be taken from the denial of a motion for summary judgment which is an interlocutory judgment. La.Code Civ.P. art. 968. “However, when there is also an appeal from a final judgment, i.e., a trial court's grant of summary judgment, an interlocutory ruling may also be reviewed by the appellate court.” Douga v. Progressive Cas. Ins. Co., 16-543, page 1 (La.App. 3 Cir. 12/7/16), 208 So.3d 394, 396 (fn 2), writ denied, 16-2271 (La. 2/3/17), 215 So.3d 694. When reviewing a partial summary judgment, the standard of review is de novo. Unicorp, L.L.C. v BRaDD, L.L.C., 24-176 (La.App. 3 Cir. 11/6/24), 397 So.3d 453, writ denied, 24-1494 (La. 2/25/25), 401 So.3d 660.

The summary judgment procedure is favored and is intended “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment is properly granted if, after an opportunity for adequate discovery, ‘the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

At the hearing on the cross motions for summary judgment, the trial court stated:

I am not going to today or ever say that my job is to decide whether the Sanitation Department of the State of Louisiana, or of Lafayette, is or is not doing their job or is, in fact, the facts that you alleged are that the Sanitation Department should have shut down the Fishers’ septic tank. I don't believe I have that authority, nor am I fixing to be the Appellate Court for sanitation. There are other remedies I believe for you to take for that.

The McQuittys first argue that the trial court erred in holding it could not compel the Fishers to comply with the Louisiana Sanitary Code and that there were other remedies available to them. The McQuittys argue that the Louisiana Sanitary Code does not provide an administrative remedy for them when they believe that there are violations that have not been addressed. They note that it only provides a remedy to the Fishers if they receive a compliance order informing them they are in violation of the code.

Louisiana Administrative Code Title 51, Part XIII, § 101 to § 1501, comprises that part of the Louisiana Sanitary Code pertaining to sewage disposal. The state health officer, acting through the Louisiana Department of Health, is tasked with preparing, promulgating, and enforcing the rules and regulations embodied within the Louisiana Sanitary Code. La.R.S. 40:4(A).

Louisiana Revised Statutes 40:5(A)(3) further provides that:

The state health officer and the office of public health of the Louisiana Department of Health shall have exclusive jurisdiction, control, and authority:

․

[t]o enforce a sanitary code for the entire state containing provisions for the improvement and amelioration of the hygienic and sanitary conditions of the state.

The Louisiana Sanitary Code provides for the right to an administrative proceeding or appeal when a compliance order requiring correction of a violation is issued. 51 La.Admin. Code Pt I, § 111(C). In the present case, no compliance order was issued because the Department of Health found no violations with the Fishers’ system.

Louisiana courts have upheld the Department of Health's exclusive authority to enforce the Louisiana Sanitary Code. In Southern Shell Fish Co., Inc. v. Office of Public Health, Department of Health and Hospitals, 96-2295 (La.App. 1 Cir. 11/7/97), 703 So.2d 1321, the first circuit upheld the statutory authority of the Department of Public Health to enforce the provisions of the Louisiana Sanitary Code. The Louisiana Supreme Court held that the Department of Health was liable for negligent enforcement of the Louisiana Sanitary Code, emphasizing its mandatory duty to enforce regulations aimed at protection of public health. Gregor v. Argenot Great Cent. Ins. Co., 02-1138 (La. 5/20/03), 851 So.2d 959.

The McQuittys cite Smith v. Cutts, 99-253 (La.App. 3 Cir. 3/15/00), 759 So.2d 851, writ denied, 00-1081 (La. 6/2/00), 763 So.2d 598, for the proposition that courts do have the power and authority to compel compliance with the Louisiana Sanitary Code. That case involved the back-up of sewage onto a neighboring property. The Smiths filed suit against their neighbors, the Cutts, for an injunction and damages. They also sued the installer of the sewerage system. Subsequently, the Smiths filed a petition for writ of mandamus “seeking to have the State enforce the guidelines of the State Sanitary Code by ordering the Cutts to discontinue operating their sewage treatment plant.” Id. at 854.

The trial court in Smith found that neighbors discharging effluent were solely liable pursuant to La.Civ.Code arts. 667 and 2315. Reviewing the Louisiana Sanitary Code, this court found that the State and installer of an individual sewer treatment plant were equally responsible with the landowners for the damages pursuant to La.Civ.Code art. 2315 which were caused by the back-up of sewage. This court found that the property owners operated the plant in accordance with the standards set forth by the State and installer. The State determined that the roadside ditch was adequate for the plant's discharge and directed the property owners to pipe the effluent into the ditch. This court held that downhill neighbors cannot be required to accept effluent from the dominant estate and that “[e]ven chlorinated effluent is an unacceptable discharge.” Id. at 858. In making this determination, this court stated:

We interpret State Sanitary Code 13:012–2 as requiring the State to have a firm appreciation and understanding of the area's topography before authorizing the installation of an individual sewage system. Particularly, the State should be cognizant of exactly where the discharged effluent flows. Without such understanding, a competent determination as to whether the individual facilities are likely to create a nuisance or public health hazard cannot be made. This case substantiates our position.

Id. at 857.

This court also noted that the Louisiana Sanitary Code requires the sewage system's installer to submit a “ ‘Survey Checklist and Certificate’ ” to the State. Id. at 858. “To complete the checklist the installer must inspect the premises and determine whether the location can support the proposed sewage system.” Id. The installer certified that the discharge location and elevation was acceptable, which it was not.

The court of appeal did apply the Louisiana Sanitary Code to the facts in Smith to find that the State and installer were liable because they did not follow the mandates of the code. However, the homeowner was found responsible pursuant to the provisions of La.Civ.Code art. 667, which supports awards for acts, constructions, and activities that cause damage to immovable property.

The above cases demonstrate the Department of Health is the entity who is responsible for enforcing the Louisiana Sanitary Code, and it can be held responsible for negligent enforcement of the code. Any issues regarding enforcement of the Louisiana Sanitary Code should be brought directly against the Department of Health, as it holds exclusive jurisdiction and authority over the Louisiana Sanitary Code's implementation and compliance measures.

We agree with the trial court that the McQuittys do have other legal means to address their concerns. As noted above, they could have sued the Department of Health for negligent enforcement of the Louisiana Sanitary Code. Furthermore, their other claims for damages and injunctive relief pursuant to La.Civ. Code arts. 667–669 and La.Civ. Code art. 2315 are still pending.

For the above reasons, we affirm the decision of the trial court granting the motion for partial summary judgment filed by David and Nanette Fisher and denying the motion for partial summary judgment filed by James and Claudia McQuitty. Costs of this appeal are assessed to the McQuittys. We remand this case for further proceedings.

AFFIRMED AND REMANDED.

BRADBERRY, Judge.