Clark v. East Baton Rouge Parish Department of Public Works

196 So. 3d 142, 2015 La.App. 1 Cir. 1646, 2016 La. App. LEXIS 1114
CourtLouisiana Court of Appeal
DecidedJune 3, 2016
DocketNo. 2015 CA 1646
StatusPublished
Cited by2 cases

This text of 196 So. 3d 142 (Clark v. East Baton Rouge Parish Department of Public Works) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. East Baton Rouge Parish Department of Public Works, 196 So. 3d 142, 2015 La.App. 1 Cir. 1646, 2016 La. App. LEXIS 1114 (La. Ct. App. 2016).

Opinion

CRAIN, J.

|2The plaintiffs, Terri Clark and Betty Clark, appeal a judgment sustaining a peremptory exception of prescription and "dismissing their claims with prejudice. We affirm in part, reverse in part, and remand.

[144]*144FACTS

On March 9, 2005, the Clarks filed a petition against the. East Baton Rouge Parish Department of Public Works alleging that their immovable property had repeatedly sustained water damage due to defective storm drains and a defectively installed or maintained pump. According to the petition, the property experienced flooding in December 2000, August 2001, and March 2002, “as a result of defective storm drains, when the sewer backed-up and overflowed into the bathrooms of the property as it has done on a number of occasions past and since.” The Clarks reported the matter to the Department of Public Works, and a water pump, referred to in the petition as a “Liberty Pump,” was installed at the property in 2002. The petition further, alleges that the property “continued to experience plumbing and electrical problems” at various times throughout 2003, which prompted the Clarks to retain an engineer who determined that much of the damage was associated with poor drainage and the Liberty Pump. The petition alleges damages in the amount of $26,650.67 “[a]s a result of the continued flooding [and] sewage backup” caused by the defective drains and Liberty Pump, and that the plaintiffs “continue to suffer” a loss of use and enjoyment of their property along with other non-pecuniary damages.

In response to the petition, the City of Baton Rouge/Parish of East Baton Rouge filed an exception of vagueness, asserting that it was unable to determine “exactly what event dates the plaintiffs rely upon to seek damages from the LCity/Parish.”1 The trial court granted the exception and ordered the Clarks to amend their petition.

The Clarks filed a first supplemental and amending petition on November 27, 2006, that reiterated their prior allegations and further alleged that the property experienced flooding in October 2003, February 2004, and March 2004, due to the defective Liberty Pump. The City/Parish responded with a motion to dismiss the claims on the basis that the amended pleading did not sufficiently clarify the Clarks’ .claims. The trial court agreed and ordered the Clarks to amend their petition within thirty days to allege clear and concise facts upon which their claim was based.

The Clarks filed a second supplemental and amending petition on October 31, 2008, alleging the following information. The plaintiffs owned a building' containing four apartments at 9121 Great Smokey in Baton Rouge, Louisiana. Due to drainage and sewer problems at the property, the City/Parish corresponded with the Clarks about their potential qualification to receive a Liberty Pump, which was thereafter installed at the property on or about September 1, 2002. Immediately following the installation of the pump, the Clarks renovated the apartment building to repair the previous damage caused by the sewage backup, including the installation of new carpeting, appliances, baseboards, and sheetrock.

The property continued to have problems with drainage and sewage issues, allegedly due to the faulty Liberty Pump, and the Clarks were again forced to replace the flooring and appliances in all four apartments. Repeated calls and complaints to the City/Parish ultimately led to the installation of a second Liberty Pump on or about February 3, 2004. Following the installation of the second pump,, the [145]*145property continued to experience flooding or sewage backups on | ¿numerous occasions, including March 9, 2004, March 17, 2004, and November 3, 2004.

Repeated calls and complaints to the City/Parish ultimately led to the installation of a third Liberty Pump on or about November 3, 2004. The Clarks continued to experience problems with drainage and sewage that required service-calls on January • 5, 2005, and March 8, 2005. The Clarks allege that the continued flooding and sewage backups were due to the City/Parish’s failure to maintain storm drains and the failure to properly install or maintain the Liberty Pumps. The-second amendment to the petition also avers that in the fall/winter of 2005, the Clarks were ultimately forced to sell the property for less than its market value due to the drainage and sewage issues.

The City/Parish filed another motion to dismiss asserting that the second amending petition failed to comply with the trial court’s order. The motion was denied; and, after filing an answer and conducting discovery, the City/Parish "filed a peremptory exception of prescription asserting that all claims set forth in the original and amending petitions had prescribed. The City/Parish argued that the Clarks’ claims were subject to a one-year prescriptive period and that all claims alleged in the original petition arose more than one year prior to its filing on March 9, 2005. The claims arising after March 9, 2004, according to the City/Parish, were alleged only in the amending petitions, and those pleadings were filed more than one year after the damages were sustained. The Gity/Parish further contended that the amending petitions did not relate back to the filing of the original petition, because the original petition did not contain sufficient allegations to afford fair notice of any claims arising after March 9,2004.

The Clarks filed an opposition but conceded that any claims arising before March 9, 2004, had prescribed. As to the claims arising on or after that date, the IfiClarks asserted that the claims were timely because the amending petitions related back to the date of the filing of the original petition in accordance with Louisiana Code of Civil Procedure article 1153, which provides:

When.the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or, attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading. ■

Arguing that the claims in the amending petitions arose from the same conduct, transaction, or occurrence alleged in the original petition, the Clarks cited allegations in the original petition'averring that the flooding had occurred “on a number of occasions past and since” and that the Clarks had sustained damages as a result of “the continued flooding [and] sewage back-up” caused by the City/Parish’s failure to “maintain the. storm drains and improper or defective installation and/or maintenance of the Liberty Pump.”

The trial court held a hearing on . the exception and ruled in favor of the City/Parish, sustaining the exception of prescription as to all claims. A judgment was signed on July 13,2015, that dismissed the Clarks’ petition with prejudice. The Clarks now appeal.

DISCUSSION

In their sole assignment of error, the Clarks assert that the claims for damages sustained on or after March 9, 2004, have not prescribed and that the trial court erred in finding that the second amending petition did not relate back to the date of [146]*146the filing of the original petition on March 9, 2005.2

Generally, a trial court’s factual findings on a peremptory exception of prescription, such as the date on which prescription begins to run, are reviewed on appeal under the manifest error-clearly wrong standard of review. McKenzie v. Imperial Fire and Casualty Insurance Company, 12-1648 (La.App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Clark v. E. Baton Rouge Parish Dep't of Pub. Works
248 So. 3d 409 (Louisiana Court of Appeal, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
196 So. 3d 142, 2015 La.App. 1 Cir. 1646, 2016 La. App. LEXIS 1114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-east-baton-rouge-parish-department-of-public-works-lactapp-2016.