Crosby v. Sahuque Realty Co.

122 So. 3d 1197, 2012 La.App. 4 Cir. 1537, 2013 WL 4477051, 2013 La. App. LEXIS 1692
CourtLouisiana Court of Appeal
DecidedAugust 21, 2013
DocketNos. 2012-CA-1537, 2012-CA-1538
StatusPublished
Cited by8 cases

This text of 122 So. 3d 1197 (Crosby v. Sahuque Realty Co.) 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
Crosby v. Sahuque Realty Co., 122 So. 3d 1197, 2012 La.App. 4 Cir. 1537, 2013 WL 4477051, 2013 La. App. LEXIS 1692 (La. Ct. App. 2013).

Opinions

SANDRA CABRINA JENKINS, Judge.

| ]This case involves a landlord-tenant dispute over damages to movable property due to water intrusion in leased property. Plaintiffs, Benjamin Crosby and Bentex Associates, Inc., rented three apartments at 708 Orleans Avenue, owned by defendant Sahuque Realty Co., Inc. and managed by defendant Latter & Blum, Inc. (collectively “defendants”). During plaintiffs’ occupancy, from the mid-1990s until June, 2009, plaintiffs experienced water intrusion into the apartments that damaged plaintiffs’ furnishings, draperies, rugs, clothing, and artwork. Plaintiffs filed a petition for damages and argued that the defendants’ failure to properly weatherproof and make necessary repairs to the leased property constituted a continuing tort, because the operating cause of the injury was ongoing and gave rise to successive damages. Defendants argued that plaintiffs’ alleged damages resulted from separate weather-related occurrences of water intrusion into the apartments, rather than from continuous tortious conduct by the defendants. Defendants filed a peremptory exception of prescription alleging that the last water intrusion, during which plaintiffs could have sustained property damages, occurred on August 8, 2008, more than one year before the petition for damages was filed. The trial court granted the exception of prescription and dismissed plaintiffs’ 12property damage claims with prejudice. In further proceedings, the trial court dismissed all remaining claims asserted by plaintiffs against defendants.

Plaintiffs filed this devolutive appeal limited to the trial court’s judgment granting the exception of prescription and dismissing the property damage claims. At the trial on the peremptory exception of prescription no evidence was properly introduced into the record to demonstrate that plaintiffs’ property damage claim prescribed before the petition was filed. Based on the content of the record before this Court, we must conclude that defendants did not meet their burden of proof at the trial of the exception of prescription. For the reasons set forth below, we reverse the trial court’s January 28, 2011 judgment.

FACTS AND PROCEDURAL HISTORY

Benjamin Crosby (“Crosby”) is the sole owner and employee of Bentex Associates, Inc. (“Bentex”) (collectively “plaintiffs”). Between 1995 and 1996, Crosby entered into a lease for two apartments at 708 Orleans Avenue, owned by Sahuque Realty Co., Inc. (“Sahuque”). Several years later, Bentex entered into a lease with Sahuque for a third apartment at 708 Orleans Avenue. Latter & Blum, Inc. became the property management company for that property in June, 2008.

Between 1995 and 2009, plaintiffs experienced water intrusion leaks in all three apartments. Plaintiffs contend that the water intrusion leaks became progressively worse through the years, and resulted in significant water and mold damage to plaintiffs’ furnishings, draperies, rugs, clothes and artwork.

[1200]*1200Plaintiffs maintain that they notified Sa-huque and Latter & Blum several times, during plaintiffs’ tenancy, that there was a problem with water intrusion in the apartments and that plaintiffs’ property was being damaged as a result. |sPIaintiffs contend that Sahuque made assurances to plaintiffs that steps would be taken to prevent further water intrusion.

In November, 2008, plaintiff Crosby was diagnosed with a sinus infection, and believing his physical condition was due to mold exposure in the apartments, plaintiffs ceased staying and working in the three apartments at 708 Orleans Avenue. Between December, 2008 and June, 2009, the parties attempted to negotiate terms for a continued lease agreement, including repairs and remediation to the apartments, but the parties failed to come to an agreement. Defendants issued a notice to vacate to plaintiffs in June, 2009, and plaintiffs vacated the apartments.

On October 26, 2009, plaintiffs filed a petition for damages against defendants. Plaintiffs alleged that defendants’ failure to weatherproof the apartments, make necessary repairs, and perform remediation caused damage to plaintiffs’ personal, movable property, for which plaintiffs sought damages.1 Plaintiffs argued that defendants’ failure to act constituted a continuing tort and led to successive damages that remained unaddressed and unalleviat-ed for the entire period that plaintiffs occupied the apartments.

In October, 2010, each defendant filed a peremptory exception of prescription as to the property damage claims in plaintiffs’ petition.2 Defendants argued that each water intrusion that caused damage to plaintiffs’ movable property gave rise to a separate property damage claim, subject to its own one-year liberative prescriptive period that commenced on the day the damage was Rsustained. Relying on plaintiffs’ responses to interrogatories and Crosby’s deposition, defendants averred that plaintiffs’ property sustained water damage during separate instances of water intrusion, on at least ten occasions between 1995 and 2005, once in June, 2005, once in October, 2007, and finally in August, 2008. Defendants asserted that plaintiffs’ last potential property damage claim had prescribed in August, 2009, one year after the last water intrusion and two months prior to the filing of plaintiffs’ petition for damages on October 26, 2009.

In opposition to the exception of prescription, plaintiffs maintained that the defendants’ ongoing failure to weatherproof the apartments and prevent further water intrusion was a continuing tort, for which the prescriptive period does not commence until the wrongful conduct causing damages is abated. Plaintiffs argued that defendants’ wrongful conduct continued unabated during the entire period of plaintiffs’ occupancy, which lasted until June, 2009.

At the trial on the peremptory exception of prescription, neither party formally introduced into evidence any supporting exhibits nor presented any arguments. The trial court granted defendants’ peremptory exception of prescription on the plaintiffs’ property damage claims. The trial court stated, “[u]pon review of the petition, case law and Plaintiffs deposition taken in Au[1201]*1201gust 2010, the Court finds that the undisputed facts demonstrate that the Plaintiff was aware of his property damage sustained in separate weather intrusions between 1995 and 2005.” The trial court found that the facts demonstrated the last water intrusion and damage occurred in August, 2008, and that the plaintiffs’ property damage claim prescribed in August, 2009. The trial court reasoned that the separate water intrusions provided a multiplicity of causes of action, each of which had a corresponding one-year liberative prescriptive period from the date on which Isplaintiffs acquired, or should have acquired, knowledge of the damage sustained. The trial court also stated that a series of injuries caused by separate wrongful acts does not constitute a continuing tort, which only applies when continuous conduct causes continuing damages. The trial court dismissed plaintiffs’ property damage claims with prejudice.

Plaintiffs filed a motion for new trial or, alternatively, for leave to amend the petition to set forth facts in support of a contra non valentum defense to prescription. In denying the motion, the trial court noted again its rejection of plaintiffs’ continuing tort argument and quoted the Louisiana Supreme Court case, Hogg v. Chevron USA, Inc.,

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122 So. 3d 1197, 2012 La.App. 4 Cir. 1537, 2013 WL 4477051, 2013 La. App. LEXIS 1692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crosby-v-sahuque-realty-co-lactapp-2013.