City of Lafayette v. Marks Const. Co., Inc.

• Decision Date: 30 July 1975
• Docket Number: No. 5086,5086
• Parties: CITY OF LAFAYETTE, Louisiana, Plaintiff-Appellant, v. MARKS CONSTRUCTION COMPANY, INC., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 232

317 So.2d 232

CITY OF LAFAYETTE, Louisiana, Plaintiff-Appellant, v. MARKS CONSTRUCTION COMPANY, INC., Defendant-Appellee.

No. 5086.

Court of Appeal of Louisiana, Third Circuit.

July 30, 1975.

Rehearing Denied Aug. 28, 1975.

Writ Refused Oct. 17, 1975.

Ronald J. Judice, Charles R. Keller, Lafayette, for plaintiff-appellant.

Howard W. Martin, Martin & Leonard, Lafayette, for defendant-appellee.

Before FRUGE , DOMENGEAUX and WATSON, JJ.

WATSON, Judge.

The City of Lafayette, Louisiana, filed this suit against Marks Construction Company, Inc. to enforce its liens against lots 199, 200 and 201 of Best Marks Subdivision in order to collect a sewerage assessment. The defendant-owner filed a peremptory exception urging the prescription of three years. The exception of prescription was sustained by the trial court which dismissed plaintiff's suit.

The facts were presented by stipulation. In summary, they are as follows: The sewerage assessments were levied under Ordinance No. 872 of the City of Lafayette. The ordinance was passed under the authority of LSA-R.S. 33:3986, which will be quoted in pertinent part below. The ordinance provided that the assessments were due on or before June 20, 1969, and, if not paid on that date, it was presumed conclusively that the owner elected to pay them off in ten equal annual installments, the first being due on December 31, 1969. The defendant did not pay the assessments on June 20, 1969, or the first installments due on December 31, 1969, nor any subsequent installments.

This suit was filed on August 5, 1974. There is no dispute as to the collection of the assessment, other than that of prescription. The parties agree that the prescriptive period is three years, as provided by LSA-R.S. 33:3746, also quoted below.

The question presented is: when does the prescriptive period commence?

The trial court held, as the ordinance provided, that defendant's failure to pay on June 20, 1969, was an election to pay in equal annual installments; that defendant's failure to make the first annual payment due on December 31, 1969, caused all of the subsequent installments to become due; and that, therefore, plaintiff's claim prescribed three years thereafter. The trial court reasoned that the City of Lafayette had ample time to proceed to collect the assessment and its failure to do so had caused prescription to run.

Plaintiff contends on appeal that the acceleration clause in the ordinance does not accelerate the prescription period and that prescription does not run until the original due date of the final installment, in this case, December 31, 1978.

The parties agree that Ordinance No. 872 was passed pursuant to the authority of LSA-R.S. 33:3986, which provides in pertinent part as follows:

The amount assessed in said ordinance shall be due and collectible immediately on its passage, and, if not paid within thirty days from the date of the adoption of said ordinance, it will be conclusively presumed that any property owner whose property is affected thereby, exercises the right and option, which is hereby authorized, to pay the amount due in equal annual installments bearing interest at a rate or rates not exceeding the maximum rate provided for conventional interest by Article 2924 of the Louisiana Civil Code as the same now exists or may be hereafter amended, and extending over a period not exceeding twenty years, all within the discretion of the governing authority and as provided for in the ordinance levying such local or special assessments. The first installment shall become due on December 31 of the then current year or one year after the date of the assessment ordinance herein provided for, in the discretion of the governing authority of the district, and annually thereafter. The failure to pay any installment or interest thereon when due, shall ipso facto cause all other installments and the interest thereon to become due and payable and the sewerage district shall within thirty days from date of such default, proceed against the property for the collection of the total amount due thereon, including interest, plus twenty per cent additional on the principal and interest of the past due installment or installments or twenty per cent of the amount sued for, and in the event judgment is necessary to effect collection, twenty per cent of the amount of the judgment rendered, as attorneys' fees.'

The parties also agree that the applicable statutory provision relative to prescription is found in LSA-R.S. 33:3746, which, in its entirety, reads as follows:

' § 3746. Prescription of claims, liens and privileges for local or special assessments for paving and sewerage improvements

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, re-surfacing or otherwise improving streets, roads, sidewalks and alleys or the cost of the construction,...