Judgment rendered May 5, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,821-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
GLENDA EMMONS AYCOCK Plaintiff-Appellant
versus
BOARD OF COMMISSIONERS Defendant-Appellees OF THE BOSSIER LEVEE DISTRICT AND CITY OF BOSSIER CITY
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 140,852
Honorable Ford E. Stinson Jr. (Pro Tempore), Judge
THE TOUCHSTONE LAW FIRM Counsel for Appellant By: David Mark Touchstone Dylan David Touchstone
COOK, YANCEY, KING & GALLOWAY Counsel for Appellees By: Robert Kennedy, Jr. James Ashby Davis
Before MOORE, ROBINSON, and BLEICH (Pro Tempore), JJ. MOORE, C.J.
Aubrey R. Aycock, executor of the estate of his late wife, Glenda
Emmons Aycock, appeals a judgment that sustained, after a trial on the
merits, the City of Bossier City’s exception of prescription and dismissed
Ms. Aycock’s claim of inverse condemnation. The City has filed an
exception of no right of action seeking to dismiss the appeal. For the
reasons expressed, we overrule the exception and affirm the judgment.
FACTUAL BACKGROUND
Ms. Aycock, a real estate agent, owned a house on Lot 14-C, Village
Square West Phase 2-C, a subdivision in Bossier City. The lot is adjacent to
a drainage ditch (sometimes called the Loreco Ditch); across the ditch lies
Rusheon Elementary School. A timber-and-railroad tie retaining wall,
apparently installed by the developer of the subdivision in the early 1980s,
originally stood next to the ditch.
In February 2009, the treasurer of the Village Square West Phase 2
Home Owners Association wrote to Mark Hudson, the city engineer, to
advise that the retaining wall was near collapse, which would result in
serious damage to all houses in the subdivision. He reminded Hudson that
the City had previously replaced a similar wall in Village Square West Phase
1. Hudson brought the matter to the City Council, which adopted an
ordinance to allocate $230,000 to replace a section of the Village Square
West Phase 2 retaining wall adjacent to the ditch. In May, the City delivered
to each Phase 2 homeowner a document, “Indemnification / Retaining Wall
Improvements / Village Square West.” Ms. Aycock signed this agreement,
on May 5, 2009, on behalf of her mother, who owned the lot at the time. The City placed the project out for bid; the winning bidder was
Integrity Inc.; the City signed the contract and issued a notice to proceed on
July 31, 2009. Integrity completed the work on September 8, 2009; Hudson,
the city engineer, signed a certificate of substantial completion that day.
Ms. Aycock testified that because she had to put her mother in a
nursing home (she passed away in 2010), the house on Lot 14-C sat vacant
from March 2009 until May 2012. At that point, she started leasing the
house intermittently. However, a tenant advised her that the in-ground
sprinkler system was not working properly. Ms. Aycock inspected and
found, in addition to a buried sprinkler pipe that was now above ground,
cracks in the ceiling and foundation that could not be repaired. She then
learned about the City’s prior work replacing the retaining wall.
PROCEDURAL HISTORY
Ms. Aycock filed this petition on January 22, 2013, alleging inverse
condemnation in that the City’s changes to the retaining wall caused erosion,
poor drainage, and instability of the soil, leading to a “taking” of her
property, under La. Const. art. I, § 4(B). She alleged that she did not
discover the taking until May 2012, when the tenant reported the problem
with the sprinkler system. In her petition, she demanded the full value of the
house and property, with general damages. By pretrial memos, she also
demanded attorney fees and argued that her action for “compensation for
property taken” prescribed three years after the taking, under La. R.S.
13:5111 A.1
1 The petition also named the Board of Commissioners of the Bossier Levee District as a defendant, but the Board was dismissed by unopposed motion for summary judgment early in the proceedings. 2 The City initially moved for summary judgment on the basis of the
indemnification agreement, discretionary immunity, and the prescription of
two years, running from “the completion and acceptance of the public
works” “when private property is damaged for public purposes.” La. R.S.
9:5624. The court denied summary judgment, finding genuine issues of
material fact.
In August 2019, days before trial was to begin, the City filed this
exception of prescription, reiterating the two-year limit of R.S. 9:5624. It
showed that the certificate of substantial completion was signed on
September 8, 2009, but suit was not filed until January 22, 2013.
SUMMARY OF TRIAL EVIDENCE
The matter proceeded to bench trial over four days, in August 2019.
Ms. Aycock testified to the facts described above. She admitted that the
City never acquired any part of her lot, but she felt that the foundation issues
would make the house lose 30-40% of its value. Mr. Aycock, who manages
rental properties for his wife, corroborated her testimony and individually
identified 121 photos he took of the house and yard.
Ms. Aycock called David Pattridge, who qualified as an expert in
post-tension foundations, foundation evaluations, soil-slab interactions, and
remediation of foundations. He felt that the sheet pile wall installed by the
City in 2009 projected above the grade, creating a dam that would not let
water return to the ditch; the resulting poor drainage was the source of Ms.
Aycock’s foundation problems. He proposed remediation by raising the soil
level on the east side of the wall, and by repairing the catch basin in the
street. He also individually identified 100 photos he took of the house and
yard. 3 Ms. Aycock also called Roy D. Jones, a retired civil engineer, who
qualified as an expert in geotechnical engineering and investigation of soil
and drainage issues and structural failures. He agreed that the problem was
not from groundwater, but from “perched” water, which was trapped in the
lot by the retaining wall.
Finally, Ms. Aycock called Clint Land, a real estate appraiser, who
estimated the house was worth from $190,000, in its current condition, to
$210,000, in good condition.
By posttrial memo, Ms. Aycock figured her damages at $343,482.49.
The City called its engineer, Hudson, who testified that even though
the City did not own the original retaining wall, it felt a responsibility to help
the homeowners next to the ditch. He explained that the indemnification
agreement was chiefly to protect the City from complaints of inconvenience
during the construction process, but also to advise homeowners that the City
would not own the finished wall. He was emphatic that the City never
appropriated, or made any ownership claim over, any part of Lot 14-C.
The City also called Paul Cormier, a professional engineer, who
testified that there were many sources of Ms. Aycock’s foundation
problems: small soffits and lack of gutters on the house, the sprinkler
system, and a poorly functioning drain near the street. By contrast, he felt
that the sheet pile retaining wall was installed properly.
By posttrial memo, the City argued lack of causation, damages, the
effect of the indemnification agreement, and, crucially, the two-year limit of
R.S. 9:5624.
4 ACTION OF THE DISTRICT COURT
The district court wrote an eight-page opinion recognizing that Ms.
Aycock’s property had been taken or damaged for a public purpose, under
La. Const. art. I, § 4(B), but found that which one of these disjunctive
options occurred was crucial. An action for a taking prescribed in three
years from the taking, La. R.S. 13:5111 A, while an action for a damaging
prescribed in only two years from the acceptance of the public work, La.
After reviewing the jurisprudence, the court rejected the notion that
any substantial interference with the free use and enjoyment of property was
automatically a taking. Instead, it adopted the gradation between damaging
(less severe) and taking (more severe) recognized in Avenal v. State, 03-
3521 (La. 10/1/04), 886 So. 2d 1085, 34 Envtl. L. Rep. 20,122, cert. denied,
544 U.S. 1049, 125 S. Ct. 2305 (2005), and Suire v. Lafayette City-Parish
Consol. Gov’t, 04-1459 (La. 4/12/05), 907 So. 2d 37. The court implicitly
found only a damaging, applied the two-year period of R.S. 9:5624, and
ruled that Ms. Aycock’s claim had prescribed. The court rendered judgment
dismissing her claim.
Ms. Aycock appealed, raising two assignments of error. However,
she passed away in February 2021, and the City filed an exception of no
right of action on grounds that her husband had not yet been appointed
executor of her estate. After Mr. Aycock submitted proof of his
appointment, the City filed a second exception, this time urging that the
proper appellants were the successors defined in La. C.C. art. 2315.1 A(1),
her surviving spouse and children. This court referred the exception to the
merits. 5 DISCUSSION
No Right of Action
By its second exception of no right of action, the City urges that when
a party dies during the pendency of an action, his “legal successor” is the
proper party to pursue the claim, and that La. C.C.P. art. 801 defines “legal
successor” as the survivors designated in La. C.C. art. 2315.1. The City
contends that Ms. Aycock’s cause of action survived in favor of the
“surviving spouse and child or children of the deceased,” La. C.C. art.
2315.1 A(1), and that Mr. Aycock, as executor of the estate, does not meet
these criteria.
An action can be brought only by a person having a real and actual
interest which he or she asserts. La. C.C.P. art. 681. The function of an
exception of no right of action is to determine whether a plaintiff belongs to
the class of persons to whom the law grants the cause of action asserted in
the petition. Miller v. Thibeaux, 14-1107 (La. 1/28/15), 159 So. 3d 426;
Myles v. Howell, 52,460 (La. App. 2 Cir. 1/16/19), 265 So. 3d 22. Any
judgment rendered for or against a deceased person is an absolute nullity.
Cortes v. Fleming, 307 So. 2d 611, 81 A.L.R. 3d 267 (La. 1974); Kemper v.
Don Coleman, Jr., Bldr. Inc., 31,576 (La. App. 2 Cir. 7/29/99), 746 So. 2d
11, writs denied, 99-2954, 2955 (La. 1/7/00), 752 So. 2d 861.
The Code of Civil Procedure provides for the substitution of deceased
parties. Article 801 states:
When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality. As used in Articles 801 through 804, “legal successor” means:
6 (1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and (2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased’s succession is not under administration therein.
The statute referenced, La. C.C. art. 2315.1, states (in pertinent
part, with emphasis added):
A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of: (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
Plain reading discloses that the provisions for the survival action
apply only when the damages were caused by the offense or quasi offense.
As noted by Prof. H. Alston Johnson, “It seems difficult to avoid the
inference * * * that the right to recover damages to the property of the
victim, unlike the right to recover damages for personal injury, [have]
become a matter of general succession law rather than tort law.” H. Alston
Johnson, Testamentary Dispositions, 57 La. L. Rev. 181, 195 (1996).
There is no suggestion, and no evidence, that the alleged inverse
condemnation of Ms. Aycock’s property resulted in her injury and death.
On this record, the legal successor is the succession representative, La.
C.C.P. art. 801 (2). Mr. Aycock supplied proof that he has been duly
appointed the executor of his late wife’s estate and is the proper party to
proceed with the appeal. The exception of no right of action is overruled.
7 Damaging vs. Taking
By her first assignment of error, Ms. Aycock urges that the court erred
in finding that her claim was for a “damaging” rather than a “taking” and in
applying R.S. 9:5624 to find that the claim had prescribed. She shows that
just compensation is due whenever property is “taken or damaged,” La.
Const. art. I, § 4(B), and cites the three-part test for inverse condemnation
outlined in State v. Chambers Inv. Co., 595 So. 2d 598 (La. 1992).2 She
concedes that R.S. 13:5111 and 9:5624 provide different prescriptive
periods, but argues that she proved a taking, for all purposes. She contends
that her case is directly on point with Simmons v. Board of Comm’rs, 624
So. 2d 935 (La. App. 2 Cir. 1993), in which this court affirmed the finding
of a taking, when dredging a canal led to crevices, loss of soil and trees, and
damages to nearby foundations. She contends that the Supreme Court
confirmed Simmons by citing it with approval in Suire v. Lafayette Parish,
supra, and that other ditch-related cases have also resulted in findings of
takings. Mitter v. St. John the Baptist Parish, 05-375 (La. App. 5 Cir.
12/27/05), 920 So. 2d 263, writ denied, 06-0254 (La. 5/26/06), 930 So. 2d
21; Jones v. Ouachita Parish Police Jury, 36,552 (La. App. 2 Cir. 12/11/02),
833 So. 2d 1094, writ denied, 03-0082 (La. 3/21/03), 840 So. 2d 553;
Lowenburg v. Sewerage & Water Bd. of New Orleans, 2019-0524 (La. App.
4 Cir. 7/29/20), __ So. 3d __. Finally, she disputes the district court’s
treatment of Avenal v. State, supra, in that the damaged property there,
2 Under this test, the court must (1) “identify a recognized species of private property right that has been affected,” (2) “decide whether the property, either a right or a thing, has been taken or damaged, in a constitutional sense,” and (3) decide “whether the taking or damaging is for a public purpose.” 8 oyster beds, were only leased to the plaintiffs; they were owned by the state,
and the state could not appropriate anything from itself.
“Property shall not be taken or damaged by the state or its political
subdivisions except for public purposes and with just compensation paid to
the owner or into court for his benefit.” La. Const. art. I, § 4(B). Although
the Constitution requires just compensation when property is taken or
damaged, the law distinguishes these actions by fixing different time limits
for them. “Actions for compensation for property taken by the state [or] a
parish * * * shall prescribe three years from the date of such taking.” La.
R.S. 13:5111 A (emphasis added). “When private property is damaged for
public purposes any and all actions for such damages are prescribed by the
prescription of two years, which shall begin to run after the completion and
acceptance of the public works.” La. R.S. 9:5624 (emphasis added). In a
case such as this one, it is critical to distinguish between taking and
damaging.
In Avenal v. State, supra, the Supreme Court confirmed that property
is taken when the public authority “acquires the right of ownership or one of
its recognized dismemberments”; it is considered damaged when the action
of the public authority “results in the diminution of the value of the
property.” Id. at 29, 886 So. 2d at 1105; Soma Enters. Inc. v. State, 521 So.
2d 829 (La. App. 2 Cir.), writ denied, 522 So. 2d 572 (1988).
The trial court’s factual findings in an inverse condemnation case are
subject to manifest error review. Crooks v. Department of Natural Res., 19-
0160 (La. 1/29/20), __ So. 3d __; Huckabay v. Red River Waterway
Comm’n, 27,113 (La. App. 2 Cir. 10/12/95), 663 So. 2d 414, writ denied,
95-3007 (La. 3/8/96), 669 So. 2d 403. 9 We have closely examined the evidence and note the opinion of Ms.
Aycock’s civil engineer, Jones, who stated that she had “lost” a substantial
amount of her yard. However, her real estate appraiser, Land, testified that
the house would be worth $210,000 in good condition, and $20,000 less “as
is.” Ms. Aycock, herself a real estate agent, felt the house had lost 30-40%
of its value. This is easily a “diminution of the value of the property,” and
thus a damaging, as opposed to a taking of the lot (or of $20,000 worth of it).
Like Jones, Ms. Aycock’s foundations expert, Pattridge, proposed
remediations to shore up the soil and allow water to flow over the retaining
wall; such efforts would not be consistent with a view that the property was
taken. The city engineer, Hudson, testified without contradiction that the
City never appropriated, or made any ownership claim over, any part of Ms.
Aycock’s lot. On this record, the district court was not plainly wrong in its
implicit finding that what happened was a damaging, rather than a taking, of
property.
The jurisprudence cited by Ms. Aycock presents much more extreme
situations. In Simmons v. Board of Comm’rs, supra, the levee board’s
dredging caused the bank to “crack and slough or drop off,” with the loss of
between 7 and 8.75 acres; vertical drop-offs of 8-10 feet; the loss of 25 to
150 trees per lot; and extensive structural damage to homes. In Mitter v. St.
John the Baptist Parish, supra, the parish’s work resulted in 20% of the
plaintiff’s property being submerged by outflow from a drainage culvert,
resulting in stagnation and insect infestation. In Jones v. Ouachita Parish,
supra, the expansion of a ditch left 0.45 acres of the plaintiff’s land covered
with spoil and other debris, making it unusable. The instant record falls far
short of the vanished acreage proved in these cases. In Lowenburg v. 10 Sewerage & Water Bd., supra, the alleged damage, in uptown New Orleans,
was excessive vibrations and noise, with dust, dirt, and debris over a 3½-
year period; the court affirmed awards for inconvenience but did not specify
whether it found a taking or a damaging. Notably, none of these cases
discussed whether the government’s action was a taking, or merely a
damaging. These cases do not compel a finding of a full taking.
In short, the district court was not plainly wrong in finding a
damaging, rather than a full taking, and not legally wrong in applying the
two-year period of La. R.S. 9:5624 to the claim. This assignment of error
lacks merit.
Suspension of Prescription
By her second assignment of error, Ms. Aycock urges the court erred
in failing to apply the equitable doctrine of contra non valentem to allow her
to proceed with her claim. If the two-year period of R.S. 9:5624 must apply,
she contends she was not aware of any problem until May 2012, and she
filed suit in January 2013, making her claim timely. Citing the seminal
cases of Corsey v. State, 375 So. 2d 1319 (La. 1979), and Renfroe v. State,
01-1646 (La. 2/26/02), 809 So. 2d 947, she argues that prescription is
suspended if “the cause of action is neither known nor reasonably knowable
by the plaintiff, even though plaintiff’s ignorance is not induced by the
defendant.” She submits that one court has applied contra non to R.S.
9:5624, Miley v. Consol. Gravity Drainage Dist. No. 1, 93-1321 (La. App. 1
Cir. 9/12/94), 642 So. 2d 693, and submits that the “lulling” found in Miley
is similar to her situation of not occupying the property when the damage
occurred. Finally, she submits that R.S. 9:5624 is not a peremptive statute,
as it uses the words “prescribed” and “prescription,” and courts always 11 interpret dubious statutes to maintain rather than bar actions, Taylor v.
Liberty Mutual Ins. Co., 579 So. 2d 443 (La. 1991).
The City responds that the two-year period of R.S. 9:5624 is, in fact,
peremptive, based on the analogous phrasing of La. R.S. 38:2189, which has
been found to be peremptive, State v. McInnis Bros. Constr., 97-0742 (La.
10/21/97), 701 So. 2d 937.3 The City further shows that two courts have
implicitly treated § 5624 as peremptive, without much discussion. Lyman v.
Town of Sunset, 500 So. 2d 390 (La. 1987); Nuckolls v. State, 337 So. 2d
313 (La. App. 2 Cir. 1976). The City concludes that Ms. Aycock’s suit was
filed over two years after the work was accepted and, thus, is too late.
This court acknowledges the City’s argument that R.S. 9:5624 is
peremptive, and finds that one court has so held, Wilson v. Dept. of Transp.
& Dev., 98-1142 (La. App. 4 Cir. 4/14/99), 737 So. 2d 866, writ denied, 99-
2625 (La. 12/17/99), 752 So. 2d 165. We recognize, however, more recent
jurisprudence interpreting statutes that use the word “prescription” as
prescriptive, not peremptive. Borel v. Young, 07-0419 (La. 11/27/07), 989
So. 2d 42; Watkins v. Exxon Mobil Corp., 13-1545 (La. 5/7/14), 145 So. 3d
237; MR Pittman Group LLC v. Plaquemines Parish Gov’t, 2015-0396 (La.
App. 4 Cir. 12/2/15), 182 So. 3d 291. We pretermit resolving the issue
because even if R.S. 9:5624 is prescriptive, we find that Ms. Aycock’s
action prescribed.
Prescription runs against all persons unless exception is established by
legislation. La. C.C. art. 3467. Nevertheless, Louisiana courts have applied
3 This section states, “Any action against the contractor on the contract or on the bond * * * shall prescribe 5 years from the substantial completion * * * or acceptance of such work, whichever occurs first, or the notice of default of the contractor[.]” 12 the jurisprudential doctrine of contra non valentem to suspend the running of
prescription in four factual situations. Corsey v. State, supra; Marin v.
Exxon Mobil Corp., 09-2368 (La. 10/19/10), 48 So. 3d 234, 177 Oil & Gas
Rep. 453. Of relevance to this case is Category 4:
Where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiff’s ignorance is not induced by the defendant.
Marin v. Exxon Mobil Corp., supra at 12, 48 So. 3d at 245.
The Supreme Court has cautioned that lower courts apply Category 4
of contra non too broadly; it is meant for “exceptional circumstances.” Id.;
Renfroe v. State, supra. It will not save the plaintiff’s claim from the
running of prescription if his ignorance is attributable to his own willfulness
or neglect; a plaintiff is deemed to know what he could by reasonable
diligence have learned. Marin v. Exxon Mobil Corp., supra at 13, 48 So. 3d
at 246, and citations therein.
Ms. Aycock testified that she was a real estate agent; she helped her
mother buy Lot 14-C, in 2005, and then helped her design and build the
house; the mother moved into it in 2006. By March 2009, however, Ms.
Aycock had to place her mother in the Alzheimer’s unit at The Glen, and the
house sat vacant until May 2012, when she leased it. That month, the tenant
advised that the sprinkler system was not working; Mr. Aycock promptly
went to the property and saw the white pipe protruding from the ground; Ms.
Aycock visited soon after that and discovered the cracked foundation, walls,
and window frames.
Contra non will apply if the property damage was “neither known nor
reasonably knowable” within two years after September 8, 2009. The
damage described, and documented by the numerous photos, is readily 13 apparent. We recognize the disruption of life when Ms. Aycock had to place
her mother in a facility and, about a year later, arrange her funeral. The
question is whether Ms. Aycock’s decision to leave the house vacant for
over three years, and not inspect it periodically, especially before renting to
a tenant, was reasonably diligent. Considering that she was a real estate
agent and had taken a close interest in the design and building of the house,
this conduct is more consistent with willfulness or neglect. Although the
district court did not make an explicit finding as to contra non, the record
supports its implicit decision to deny the application of the doctrine.
The district court did not abuse its discretion in declining to apply
contra non valentem to suspend the two-year limitation of R.S. 9:5624. The
second assignment of error lacks merit.
CONCLUSION
For the reasons expressed, the exception of no right of action is
overruled. In all other respects, the judgment is affirmed, with costs to be
paid by Aubrey R. Aycock, executor of the estate of Glenda Emmons
Aycock.
EXCEPTION OVERRULED; JUDGMENT AFFIRMED.