Toomer v. City of Lake Charles

392 So. 2d 794
CourtLouisiana Court of Appeal
DecidedFebruary 13, 1981
Docket7938
StatusPublished
Cited by10 cases

This text of 392 So. 2d 794 (Toomer v. City of Lake Charles) 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
Toomer v. City of Lake Charles, 392 So. 2d 794 (La. Ct. App. 1981).

Opinion

392 So.2d 794 (1980)

John Sheldon TOOMER, Plaintiff-Appellee
v.
CITY OF LAKE CHARLES, Louisiana et al, Defendants-Appellants.

No. 7938.

Court of Appeal of Louisiana, Third Circuit.

December 17, 1980.
Writ Refused February 13, 1981.

*795 McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for defendants-appellants.

Gregory Belfour, Lake Charles, for defendant-appellee.

Rester & Van Norman, John L. Van Norman, III, Lake Charles, for plaintiff-appellee.

Before GUIDRY, STOKER and DOUCET, JJ.

GUIDRY, Judge.

In this suit plaintiff seeks judgment declaring certain claims, liens and privileges, resulting from the levying of special assessments by the City of Lake Charles, Louisiana, against immovable properties owned by him, extinguished or prescribed and ordering cancellation of same from the mortgage records of Calcasieu Parish. Plaintiff instituted a similar suit against Acton Hillebrandt, Clerk of Court for Calcasieu parish and the City of Lake Charles which latter suit was consolidated with the instant suit for purpose of trial and remains so on appeal. We this day render a separate decree in the latter suit.

The trial court rendered judgment in favor of plaintiff and the defendant City has appealed. The Clerk of Court, Acton Hillebrandt, has neither appealed nor answered the appeal.

The trial judge, in a well written opinion, has succinctly set forth the facts giving rise to the instant controversy and his legal conclusions in regard thereto. We quote the well prepared opinion of the trial court in full:

"These two consolidated cases involve street and sidewalk paving assessments made by the City of Lake Charles against property owned by John Sheldon Toomer. The property owned initiated the suits alleging that the claims, liens and privileges resulting from the recordation of ordinances levying assessments against the property are prescribed and that the inscriptions thereof should be cancelled. In both suits the City reconvened for the alleged balances due from the original assessments owed by the respective properties owned by Toomer.

The case was presented to the court by way of stipulated facts. The facts are essentially what appear on the public records, i. e., the ordinances, recordation data and reinscription dates, together with the admission that the assessments have not been paid.

Based on these stipulations, it is apparent that there were three ordinances levying assessments. Ordinance No. 1068, adopted October 25, 1956, levied an assessment for a sidewalk. Adopted pursuant to LSA-R.S. 33:3301-3316, this ordinance provided that the amount due, if not paid on adoption of the ordinance, would be payable in annual installments over a period of ten years beginning December 31, 1956, and ending December 31, 1965. This ordinance was reinscribed February 1, 1967. Nothing has been paid on the amount due as a result of the assessment against the property by the enactment of this ordinance.

The second ordinance involved was Ordinance No. 1185 adopted August 3, 1959 for street paving. It was adopted pursuant to the same statutory authority and the failure of the owner to pay the assessment implemented a schedule of ten annual installments beginning December 31, 1959 and ending December 31, 1968. This ordinance was reinscribed June 29, 1971. Nothing has ever been paid on that assessment.

The third ordinance was Ordinance No. 1275 adopted June 21, 1961. It provided a ten year repayment schedule also, from December 31, 1961 until December 31, 1970. It was reinscribed June 29, 1973. No payments were ever made under this assessment.

The property owner's allegations of prescription are based upon LSA-R.S. 33:3746 (Act No. 204, § 1 of 1954) in effect at the time that the ordinances were passed. This statute then read as follows:

*796 `Claims, liens and privileges resulting from the levying of local or special assessments by any parish, municipality, sewerage district or other special taxing district to cover the cost of constructing, paving, surfacing, resurfacing or otherwise improving streets, roads, sidewalks and alleys or the cost of the construction, installation or maintenance of sewerage systems shall prescribe three years after the date when the final installment or deferred payment of said local or special assessment shall become due and payable under the terms of the ordinance or resolution levying the assessment.'1
1 The commencement date of the three year prescriptive period provided by this statute is the date the last payment was due, whether or not failure to pay prior payments accelerated the obligation, according to City of Lafayette v. Marks Construction Company, Inc., 317 So.2d 232 (La.App. 3rd Cir.1975). By Act 709 of 1975 the Legislature amended the statute to incorporate this interpretation.

Following what is apparently standard practice where the property owner has not paid the assessments, the City caused each of the ordinances herein to be recorded again before the three year prescriptive period ran, counting in each case from the date that the last or tenth installment was due. This is the City's way of reinscribing the assessments, and it is the City's contention that this has the effect of interrupting prescription on the claim and the privilege and of preserving both for an additional ten years. The City reinscribed these ordinances but once, the most recent being Ordinance No. 1275, reinscribed June 29, 1973.

Suit was filed by Toomer on August 9, 1976. The City reconvened on September 9, 1977, asserting its claims for the assessments and its lien and privilege.

It is the contention of the property owner that there is no statutory or juris-prudential authority for extending the life of a claim for paving by reinscription. It is the property owner's contention that the only way the municipality can keep prescription from running is by filing a suit on the claim before prescription has run. It is accordingly his contention that the attempted reinscription was without legal effect.

The City of Lake Charles contends, on the contrary, that there is jurisprudential authority that a paving lien may be reinscribed and that this has the effect of keeping alive the claim on which the lien and privilege is based. It points out that before the year 1918 paving liens were imprescriptible but that by virtue of Act 46 of 1918, a prescription of 10 years was provided for claims, liens and privileges for paving, and that this prescriptive time of ten years was the law until 1954. Since 1954 and the passage of Act 204 of that year the prescriptive period has been three years.

The cases on which the City relies were decided between 1918 and 1954. They are City of Shreveport v. Urban Land Company, 159 So. 158 (La.App. 2nd Cir. 1935) and Mount Carmel Convent of Abbeville, La. v. Hebert, 68 So.2d 918 (La.App. 1st Cir. 1953).

These cases support the City's contention that a paving lien can be reinscribed. Dicta in the City of Shreveport case, supra, at page 160, states:

`It seems clear to us that the liens and privileges dealt with in this Act (Act 46 of 1918) are put on all fours with mortgages and other liens and privileges against real estate, and that the general law applicable to reinscription thereof, to continue their effect as to third persons, is equally applicable to them.'

In this case the court found that the owner at the time of suit was different from the owner at the time of recordation of the ordinance creating the assessment.

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