94-0025 La.App. 4 Cir. 6/30/94, Ridge Oak Development, Inc. v. Murphy

• Decision Date: 30 June 1994
• Citation: 641 So.2d 586
• Parties: 94-0025 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 586

641 So.2d 586

94-0025 La.App. 4 Cir. 6/30/94

RIDGE OAK DEVELOPMENT, INC. and St. Bernard Home Development, Inc. v. Cecil Leitz MURPHY, individually and L. Murphy's Trucking

Service, Inc.

No. 94-CA-0025.

Court of Appeal of Louisiana,

Fourth Circuit.

June 30, 1994.

Rehearing Denied Sept. 13, 1994.

Glenn E. Diaz, Chalmette, for appellants.

Joseph R. Bossetta, Patrick R. Bossetta, Dorsey & Bossetta, New Orleans, for appellees.

Before BYRNES, JONES and WALTZER, JJ.

[94-0025 La.App. 4 Cir. 1] BYRNES, Judge.

On September 3, 1993 the Thirty-Fourth Judicial District Court for the Parish of St. Bernard rendered judgment in favor of plaintiffs-appellees, Ridge Oak Development, Inc. and St. Bernard Home Development, Inc. (referred to collectively as the "developers") and against the defendant, L. Murphy's Trucking Service (Murphy), in the sum of $25,000.00. We affirm.

The developers desired the construction of an artificial lake in Oak Ridge Park Subdivision. Murphy is in the business of excavating earth, sand and gravel, transporting same to job sites, and supplying same to home owners and builders in the area. Murphy desired to obtain the dirt excavated from the area that was to become the lake for use as fill for other projects.

In a series of transactions between 1987 and 1990, Murphy agreed to purchase the fill material from the developers, in place, and to remove same from the developers' property, the result of which was to create Acorn Lake in the Oak Ridge Park Subdivision. The excavation was performed in phases, under four separate contracts. The first contract was executed on September [94-0025 La.App. 4 Cir. 2] 8, 1987, and provided for the excavation of a lake bed which was five acres in area. Murphy excavated the fill from the specified five acres of land in the subdivision. For the right to remove the fill from that area, Murphy paid $125,000.00. That payment was funded by the advance payment of $50,000.00 and by the making of a promissory note for the $75,000.00 balance.

On April 18, 1990, a second contract was entered into by and among those same parties, this time for the excavation of three acres with defendant paying the developers $75,000.00 in advance for the right to remove the fill which was excavated from that area. On that occasion, Murphy allegedly excavated more fill than called for in the contract between the developers and itself.

Murphy then entered into a third contract to purchase the fill from the contiguous two acres. The alleged excess fill which had been previously removed under the second contract was included within that two-acre plot and was paid for by the payment of $50,000.00 for the right to remove the fill from the balance of the two acre plot.

On September 28, 1990 a fourth contract was entered into for the removal of one acre of fill in the specified manner for the usual $25,000.00 price per acre. The work under that contract was completed in October of 1990. The developers claimed that Murphy removed more fill than it paid for under the fourth contract. They sought payment for 1.37 acres of excess fill, at the same price of $25,000.00 per acre as Murphy had paid under the previous contracts. No additional agreement was entered into between Murphy and the developers for any additional amounts of fill material as there had [94-0025 La.App. 4 Cir. 3] been following the second contract involving the three-acre plot when Murphy allegedly excavated more fill material than it had bought.

On February 13, 1992 the developers filed this suit claiming that Murphy was indebted to them at the rate of $25,000.00 per acre for removing 1.37 acres more of dirt than called for in the contract; $25,000.00 for the cost of removing debris from adjoining property; and 25% attorney's fees.

Murphy filed an answer and third party demand against Eugene I. Estopinal & Associates, Inc., the land surveyor, for negligence. The third party defendant filed an exception of prescription, pleading the liberative prescription of one year. A directed verdict was rendered in favor of the third party defendant. The judgment in favor of the third party defendant has not been appealed.

I. The Developers' Claim Did Not Prescribe In One Year

The main question raised by this appeal is whether the taking of the excess dirt was tortious in nature in which case the claim of the developers would have prescribed in one year prior to the time this suit was filed; or was it a breach of the contract in which case the developers' claim was subject to the ten year prescriptive period; or both.

Although it is necessary for this Court to determine the nature of plaintiffs' claim in order to determine the applicable prescriptive period, plaintiffs are required to plead only such facts as will entitle them to recover under any applicable theory. The "theory of the case" is abolished as a pleading requirement or restriction. Cox v. W.M. Heroman & Co., 298 So.2d 848 (La.1974); Brewhouse, Limited v. New Orleans Public Service Inc., 614 [94-0025 La.App. 4 Cir. 4] So.2d 118 (La.App. 4 Cir.1993). When a certain state of facts under the law entitles a party to alternative remedies, both founded upon the identical state of facts, these remedies are not considered inconsistent remedies. Giron v. Housing Auth. of City of Opelousas, 393 So.2d 1267, 1271 (La.1981).

It is well settled that the same acts or omissions may constitute a breach of both general duties and contractual duties and may give rise to both actions in tort and actions in contract. Free v. Franklin Guest Home, Inc., 397 So.2d 47, 49 (La.App. 2 Cir.1981), writ den. 401 So.2d 975 (La.1981), and appeal after remand 463 So.2d 865 (La.App. 2 Cir.1985), writ den. 467 So.2d 535 (La.1985), writ den. 467 So.2d 536 (La.1985); United Gas Pipe Line Co. v. Cargill, 612 So.2d 783, 785 (La.App. 1 Cir.1992); See also: Federal Insurance Co. v. Insurance Co. of No. Amer., 262 La. 509, 263 So.2d 871 (1972).

None of the cases cited by Murphy ¹ on the taking of shell, sand and gravel, timber, oil and gas, or other minerals are applicable to this case. We accept Murphy's argument that an analogy can be drawn to the taking of such things, including timber. But the cases Murphy cites do not say that where a plaintiff's claims give rise to actions both in contract and in tort that such claims are limited to tort recovery and tort prescription. The only case that [94-0025 La.App. 4 Cir. 5] really addresses this question in a factually analogous context is Oberling v. Miller, 86 So.2d 748 (La.App. 1 Cir.1956).

In Oberling the defendant purchased standing timber on the plaintiff's land. The contract specifically required that no cedar trees be cut. The court held as follows A trial upon the merits resulted in judgment for the plaintiff's for the 8 cedar trees cut in violation of the terms of the contract, in the amount of $160.

* * * * * *

The appellant maintains the plea of prescription should be sustained on the ground that since the cutting of the trees took place between June of 1952 and January of 1953 and no suit was filed until February 16, 1954, that more than one year had elapsed and the action would be barred by limitation. He argues that this action sounds in tort....

* * * * * *

This case is somewhat similar to that of Transportation Equipment Co. v. Younger Bros., La.App. [1948], 34 So.2d 347. In this last case the plaintiff sued for the balance due for altering and rebuilding a tank trailer. The defendant reconvened for damages for the loss of the tank, claiming it exploded due to negligence of the employees of the plaintiff while it was being repaired. The plaintiff plead the prescription of one year to the reconventional demand, maintaining it was based in tort. The Court took the position that the demand was based on a contract, even though the acts complained of were due to negligence. It was further held that where a contract is breached by negligence, the party damaged may bring his suit either on breach of the contract or on the tort.

* * * * * *

The ruling of the trial court upon the plea of prescription was correct.

Oberling v. Miller, 86 So.2d 748 (La.App. 1 Cir.1956).

[94-0025 La.App. 4 Cir. 6] The Oberling decision is consistent with general tort law:

Where a claim for breach of contract exists, plaintiff is entitled to plead it and assert the statute of limitations applicable to actions for breach of contract even where an action for conversion arising out of the breach would also lie. However, at trial, plaintiff has to prove that defendant breached some contractual duty above and beyond the general duty not to convert another's property in order for the statute of limitations applicable to actions for breach of contract to apply. [Emphasis added] 54 C.J.S. Limitations of Action, Sec. 52 at p. 87.

In Parro v. Fifteen Oil Co., 26 So.2d 30, 32 (La.App. 1 Cir.1946) no such special contractual duty was found. In Parro plaintiff sued his mineral lessee for damage to his property caused by salt water and waste oil discharge. The court found that no special contractual obligation was breached and held that the action was subject to the one year tort prescriptive period:

In the examination of the entire petition to determine whether or not plaintiff bases his cause of action on the contract of lease, or on one of tort, we must bear in mind the distinction between the two actions. The action on a contract flows from a breach of a special obligation, while an action in tort flows from the violation of a general duty. [Emphasis added]. After a careful review and study of plaintiff's entire petition, we are fully convinced that plaintiff based his action in tort.[ ² His complaint is such that it could be made by any property owner against a defendant who permits salt water, waste oil, and other refuse to flow as alleged in his petition. His cause of action is not the kind that is open to him because of his contract of mineral lease with the...