Glenn Bernard v. City of Marksville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-730

GLENN BERNARD AND RANDY BERNARD

VERSUS

CITY OF MARKSVILLE

**********
APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, DOCKET NO. 2012-7571
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
J. David Painter, Judges.

AFFIRMED.

Chad P. Guillot
122 East Mark Street
P.O. Drawer 158
Marksville, LA 71351
(318) 253-6656
ATTORNEYS FOR PLAINTIFFS/APPELLANTS
Glenn Bernard and Randy Bernard

Derrick M. Whittington
Whittington Law Firm
339 Moreau St., Suite A
P.O. Box 127
Marksville, LA 71351
(337) 253-5852
ATTORNEY FOR DEFENDANTS/APPELLEES
City of Marksville

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

In 2004, Plaintiff, Glenn Bernard, purchased a tract of property adjacent to

his residence from Defendant, the City of Marksville (hereafter the City). The

purchased property was also bordered by Laurel Street, which is maintained by the

City. At the time of the purchase, a twelve-inch culvert ran underneath Laurel

Street and drained onto the purchased property. Plaintiff acknowledged the

presence of this culvert constituted an apparent servitude on the property in

question. The culvert was used to drain rainwater from City ditches and

neighboring property. Plaintiff maintained his property suffered no damages as a

result of the twelve-inch culvert.

According to Plaintiff, “[s]ometime during the year 2005,” the City replaced

the existing twelve-inch culvert with a thirty-inch culvert. According to Plaintiff,

this replacement greatly increased the flow and volume of water running onto his

property. Due to the influx of additional water, the ground became consistently

muddy and soft, preventing Plaintiff from maintaining and enjoying his property

under the same conditions existing prior to the installation of the larger culvert.

Plaintiff also alleged a ditch formed on his property, from which shrubbery began

growing.

On January 27, 2012, Plaintiffs filed a “Petition to Restore Peaceful

Possession, for Injunctive Relief Under Ordinary Process, and for Damages”

against the City.1 Damages were requested for “property damages” and “mental

anguish and anxiety.” Plaintiffs also requested an injunction issue “ordering CITY

OF MARKSVILLE to remove the thirty inch culvert and reroute the water damage

to a location away from [Plaintiffs’] property.”

1
Along with Glenn Bernard, the petition also named Randy Bernard as a plaintiff.
2

On August 19, 2013, the City filed a peremptory exception of prescription

alleging that Plaintiffs’ claims had prescribed because suit was not filed within one

year from the operating cause of their injury. The exception was set for a

contradictory hearing.

After the hearing on the exception and the submission of briefs, the trial

court granted the City’s exception of prescription. The trial court concluded the

prescriptive period had run in this matter because Plaintiffs had known of the

operating cause of the alleged damages/injuries (the installation of the thirty-inch

culvert) for several years prior to suit being filed. The trial court also determined

the facts of this case did not present a continuing tort case, reasoning the Plaintiffs

were complaining of the ill effects of a single event. Plaintiffs now appeal the

judgment of the trial court granting the exception of prescription.

ANALYSIS

Plaintiffs’ petition, which was filed on January 27, 2012, alleges “at the time

of the purchase of the property in question, there was located on the property a

drainage culvert twelve inches in diameter that [the City] used for the drainage of

water.” The petition then alleges “approximately five years ago, [the City]

installed a thirty inch culvert in place of the twelve inch culvert, in violation of

Louisiana law. . .” The petition contended “[a]s a result of defendant’s actions,

[Plaintiffs are] unable to have the free and unfettered use and enjoyment of the

property. . .” and have suffered damages to their property and persons.

Louisiana law provides the one-year liberative prescriptive period for

delictual actions begins to run from the day injury or damage is sustained.

La.Civ.Code art. 3492. If the damage complained of is to immovable property,

prescription begins to run from the day the owner “acquired, or should have

acquired, knowledge of the damage.” La.Civ.Code art. 3493. A review of

Plaintiffs’ petition reveals it asserts the installation of the thirty inch culvert was

3

the operating cause of the alleged injuries and/or damages suffered. The petition,

filed on January 27, 2012, asserts this act occurred “approximately five years ago.”

Thus, Plaintiffs’ action is prescribed on the face of the pleadings of the petition.

Ordinarily, the party urging prescription bears the burden of proof at trial of the

exception; however, if the petition is prescribed on its face, the burden shifts to the

plaintiff to show the action is not prescribed. Cichirillo v. Avondale Indus., Inc.,

04-2894, 04-2918 (La. 11/29/05), 917 So.2d 424; Dugas v. Bayou Teche Water

Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826.

Recognizing these legal precepts, Plaintiffs argue on appeal that the tort sued

upon is a continuous tort and prescription begins to run only when the wrongful

conduct ceases. The City notes the petition did not specifically plead that Plaintiffs

were the victims of a continuous tort. However, that issue was discussed at the

hearing, with the trial court ultimately concluding no continuous tort existed under

the facts of this case. After a review of the record and the applicable

jurisprudence, we agree.

The Louisiana Supreme Court in Crump v. Sabine River Authority, 98-

2326, pp. 9-10 (La. 6/29/99), 737 So.2d 720, 726, discussed the theory of

continuing tort:

As previously noted by this Court, the theory of continuing tort
has its roots in property damage cases and requires that the operating
cause of the injury be a continuous one which results in continuous
damages. Bustamento v. Tucker, 607 So.2d 532, 543 n. 8 (La. 1992);
South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533
(La.1982). Professor Yiannopoulos, in his treatise on Louisiana
predial servitudes clarified this requirement as it relates to prescription
as follows:

[A] distinction is made between continuous and
discontinuous causes of injury and resulting damage.
When the operating cause of the injury is ‘not a
continuous one of daily occurrence’, there is a
multiplicity of causes of action and of corresponding
prescriptive periods. Prescription is completed as to each
injury, and the action is barred upon the lapse of one year
from the date in which the plaintiff acquired, or should

4

have acquired, knowledge of the damage. . . . [This is to
be distinguished from the situation where] the ‘operating
cause of the injury is a continuous one, giving rise to
successive damages from day to day. . . .’

A.N. Yiannopoulos, Predial Servitudes, § 63 (1983). (emphasis added).

In this latter case discussed by Professor Yiannopoulos, where
the operating cause of injury is a continuous one and gives rise to
successive damages, prescription dates from the cessation of the
wrongful conduct causing the damage. South Central Bell, 418 So.2d
at 533. However, in cases where property has been injured or
damaged, and the continuing tort theory is inapplicable, either because
the operating cause of the injury is discontinuous or because the
damages are not successive, prescription runs from the date that
knowledge of such damage was apparent or should have been
apparent to the injured party. La.Civ.Code Ann. art. 3493 (West
1994); South Central Bell, 418 So.2d at 532; Dean v. Hercules, Inc.,
328 So.2d 69, 73 (La.1976).

In Hogg v. Chevron USA, Inc., 09-2632, p. 16 (La. 7/6/10), 45 So.3d 991,

1003, the supreme court further explained the inquiry as to whether there is

continuous tortious conduct “is essentially a conduct-based one, asking whether the

tortfeasor perpetuates the injury through overt, persistent, and ongoing acts.” The

Hogg court stated:

[C]ourts [look] to the alleged injury-producing conduct of the
tortfeasors to determine whether that conduct was perpetuated through
overt, persistent, and ongoing acts. Where the wrongful conduct was
completed, but the plaintiff continued to experience injury in the
absence of any further activity by the tortfeasor, no continuing tort
was found.

Id., 45 So.3d at 1005.

In the present case, there is no dispute that the operating cause of the

damages claimed in the petition was the installation of the thirty-inch culvert. The

petition does not claim there have been continual or ongoing unlawful acts on the

part of the City subsequent to the installation of the thirty-inch culvert or that there

was any failure to act or remediate the damages on the City’s part after being made

aware of any problems. The continued presence of excess water on the property is

simply the continuing ill effect from the original tortious act, installation of the

5

larger culvert. This is similar to what the supreme court found in Hogg (no

continuing tort found where “the wrongful act was completed, but the plaintiff

continued to experience injury in the absence of any further activity by the

tortfeasor) and Crump (no continuing tort found where the wrongful act of the

tortfeasor, the digging of a canal some twenty years prior, was not followed by any

further unlawful acts).

Plaintiffs cite Estate of Patout v. City of New Iberia, 01-151 (La.App. 3 Cir.

4/3/02), 813 So.2d 1248, writ denied, 02-1172, 02-1231 (La.6/21/02), 819 So.2d

335, 336, as support that the facts in the present case constitute a continuing tort.

In Patout, the plaintiffs, private landowners who owned property adjacent to a city-

operated landfill, sued the city for damages resulting when garbage was pushed

onto their property. A panel of this court held that the continued presence of

garbage on the plaintiffs' property constituted a continuing trespass and that

prescription would not begin to run until the garbage was removed. Patout, 813

So.2d at 1250. We find Patout is distinguishable, in that this court determined the

failure to remove the garbage was the operating cause of the injury, not the placing

of the garbage on the property, particularly given the fact the city in Patout, “[o]n

numerous occasions, . . . acknowledged its wrongful conduct and informed the

landowners that the garbage would be removed.” Id., at 1250. In the instant case,

Plaintiffs’ petition does not allege any such acknowledgment on the City’s part or

any lack of action on its part. Moreover, as the City notes, Plaintiffs have

acknowledged the water did not remain constantly on their property.

We also note with interest this court’s decision in LeJeune Brothers, Inc. v.

Goodrich Petroleum, Co., L.L.C., 06-1557 (La.App. 3 Cir. 11/28/07), 981 So.2d

23, writ denied, 08-298 (La. 4/4/08), 978 So.2d 327, wherein we rejected a

landowner’s argument that the failure to remove oilfield exploration and

production waste wrongfully deposited on his property constituted a continuing

6

tort. It was determined that the operating cause of damage was the disposal of

waste into the property, not the failure to remove it. In reaching this conclusion,

we noted the following reasoning from Crump, 737 So.2d at 727-728:

In the instant case, the plaintiff similarly argues that the mere
existence of the canal is the operating cause of daily injury because
the effect of its presence is the continuous diversion of the flow of
water away from the ox-bow. Relying on our prior decision in Griffin
[v. Drainage Commission of New Orleans, 110 La. 840, 34 So. 799
(1903)], however, we find that the actual digging of the canal was the
operating cause of the injury. The continued presence of the canal
and the consequent diversion of water from the ox-bow are simply the
continuing ill effects arising from a single tortious act.

In LeJeune, Hogg and Crump, the courts looked to the alleged injury-

producing conduct of the tortfeasors to determine whether that conduct was

perpetuated through overt, persistent, and ongoing acts. Where the wrongful

conduct was completed, but the plaintiff continued to experience injury in the

absence of any further activity by the tortfeasor, no continuing tort was found. We

find the same result applies in the present case, and affirm the trial court’s grant of

the exception of prescription.

We also find no merit in Plaintiffs’ alternative argument that even if we

affirm the grant of the exception of prescription, we “should still reverse that

portion of the judgment dismissing all causes of action against the City,” and allow

for the recovery of damages for any injuries that have occurred “since suit has been

filed.” Such an interpretation is contrary to the purpose of prescriptive statutes and

is not supported by the law.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

of this appeal are assessed to Plaintiffs/Appellants.

AFFIRMED.

7