Estate of Patout v. City of New Iberia

• Decision Date: 07 July 1999
• Docket Number: No. 98-C-0961.,98-C-0961.
• Citation: 738 So.2d 544
• Parties: ESTATE OF Gaston PATOUT and Roy Patout v. The CITY OF NEW IBERIA, Louisiana. Squirrel Run Investment Group, Inc. v. The City of New Iberia.
• Court: Louisiana Supreme Court

738 So.2d 544

ESTATE OF Gaston PATOUT and Roy Patout v. The CITY OF NEW IBERIA, Louisiana.

Squirrel Run Investment Group, Inc. v. The City of New Iberia.

No. 98-C-0961.

Supreme Court of Louisiana.

July 7, 1999.

Charles J. Foret, Briney & Foret, Lafayette; Allyson Claire M. Edwards, James Michael Garner, McGlinchey Stafford; Keith Alex Kornman, Martha Young Curtis, Scott R. Hoyt, Thomas D. Boyle, Ralph Shelton Hubbard, III, Loree Peacock LeBoeuf, Lugenbuhl, Burke, New Orleans; Counsel for Applicant.

Porteous Richard Burke, Burke, Cestia, New Iberia; Paulin J. Laborde, Jr., Counsel for Respondent.

CALOGERO, Chief Justice.¹

We granted writs in this case to determine whether lawsuits filed by the plaintiffs, the Estate of Gaston Patout and various Patout family members ("Patouts"), and the Squirrel Run Investment Group, Inc. ("Squirrel Run"), for damages arising from the unauthorized dumping of trash on their land by the City of New Iberia, are governed by the two year prescriptive period of La. R.S. 9:5624, the three year prescriptive period of R.S. 13:5111, or some other prescriptive period. Both lower courts concluded that because the damages incurred by the plaintiffs were not a "necessary consequence" of the City's landfill operations, R.S. 9:5624 is not applicable to plaintiffs' claims. We agree, and also conclude that the application of R.S. 13:5111, argued for the first time by defendants before this Court, is improper. Therefore, we find plaintiffs' causes of action to be governed by the one year general prescriptive period for delictual actions. Having so resolved the questions which triggered the granting of this writ application, we affirm the holding, and the judgment, of the court of appeal.

Facts

This dispute arises from landfill operations conducted by the City of New Iberia from 1970-85. In 1970, the City leased a tract of land from Lloyd Viator, adjacent to property owned by the Patouts and the predecessors of Squirrel Run, for use as a solid waste landfill. Over the course of the next fifteen years, trash was dumped and pushed well beyond the boundaries of the leased premises and onto the respective properties of the Patouts and Squirrel Run's predecessor in title. Unrefuted testimony established that this unauthorized dumping usually occurred when the access road to the dump site became muddy and wet, making the rear of the landfill inaccessible. Bulldozer operators would travel as far back as they could on the wet road and push the trash they carried beyond the unmarked boundaries of the landfill and into the dry or drier areas located on the plaintiffs' properties. By 1985, when the City turned over landfill operations to a private company and the unauthorized dumping ceased, approximately thirty acres of plaintiffs' property were covered with solid waste.

The Patout plaintiffs concede that they were aware of the unauthorized dumping as of December 31, 1975. Squirrel Run admits knowledge of the trespass upon their property beginning in May, 1975. During the late 1970's and early 80's, representatives of both groups of plaintiffs communicated several times with city officials about the trash problem. During a meeting at City Hall on February 24, 1982, representatives of the City and the owners of the damaged property confected a "Memorandum of Agreement," in which it was agreed that the trash had been placed on plaintiffs' properties in error and that steps would be taken to rectify the problem.

Despite this agreement, City employees continued to place solid waste on plaintiffs' property without permission until 1985, when landfill operations were turned over to Waste Management, Inc. It is uncontested that during the following three years of operation under Waste Management there was no unauthorized dumping on plaintiffs' land. The facility stopped receiving waste at some point between late 1989 and mid-1990. The Louisiana Department of Environmental Quality accepted closure of the site in June 1993, subject to three years of post-closure monitoring. The Patouts and Squirrel Run filed lawsuits against the City, later consolidated for trial, on January 28, 1992 and November 9, 1993, respectively.

Proceedings Below

Plaintiffs filed lawsuits against the City of New Iberia and its former liability insurers alleging trespass, and seeking general and special damages. In addition, Squirrel Run sought abatement, interpreted by the trial court as a request for injunctive relief. The City and its insurers filed numerous exceptions, and asserted defenses, including a peremptory exception of prescription based on the two year prescriptive period provided for in La. R.S. 9:5624. That statute relied upon by the defendants, enacted by Act No. 421 of the Louisiana legislature of 1950, provides that:

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 when the damages are sustained.²

A pre-trial hearing on the exception was held June 28, 1996. The trial judge, in his reasons for judgment and supplemental reasons, concluded that all of plaintiffs claims arising after February 23, 1981 were prescribed, while those arising before that date were not. In reaching this conclusion, the trial court first reasoned that La. R.S. 9:5624 was not applicable to any of plaintiffs' damage claims. Finding that the damage allegedly sustained by the plaintiffs must be a "necessary consequence" of the operation of the landfills in order for either version of the statute to be triggered, and concluding that the unauthorized dumping was not such a necessary consequence, the trial court rejected the defendants' argument that R.S. 9:5624 is applicable in this case, citing Miller v. Colonial Pipeline, 173 So.2d 840 (La.App. 3rd Cir.1965) and this Court's decision in Angelle v. State, 212 La. 1069, 34 So.2d 321 (1948). Instead, the trial court concluded that plaintiffs' claims were subject to the one year prescriptive period applicable to delictual actions under Louisiana Civil Code articles 3492³ and 3493.⁴

Although plaintiffs' claims appeared to have been prescribed, the trial court concluded that the 1982 memorandum of agreement constituted a renunciation by the City of accrued prescription. La. C.C. art. 3449; Lima v. Schmidt, 595 So.2d 624 (La.1992); Board of Levee Comm'rs v. Newport, Ltd., 517 So.2d 406 (La.App. 4th Cir.1987). Because prescription can be renounced only after it has accrued, the trial court reasoned that the memorandum served to renounce prescription for those claims which had prescribed by February 24, 1982, the date of the agreement—in other words, all claims arising on or before February 23, 1981 were subject to the renunciation and had not prescribed.⁵ As for plaintiffs' claims arising after February 23, 1981, the trial court concluded that there was "no evidence that the court found credible or reliable to indicate that there was an interruption or suspension or renunciation of prescription... by the City ... after the first agreement dated February 24, 1982," so that any claims for trespass not renounced by the agreement were prescribed.

The Third Circuit Court of Appeal affirmed in part and reversed in part, finding all of plaintiffs' claims to be viable. Estate of Patout v. City of New Iberia, 97-1097 (La.App. 3rd Cir. 3/6/98), 708 So.2d 526. In reaching this conclusion, the court of appeal first agreed with the trial court that R.S. 9:5624, the two year prescriptive period for claims regarding private property damaged for a public purpose, was not applicable to plaintiffs' lawsuits, as the damage sustained by plaintiffs was not a "necessary consequence" of the landfill operation, citing this Court's decision in Lyman v. Town of Sunset, 500 So.2d 390 (La.1987). The court of appeal relied on the testimony of plaintiffs' expert civil engineer, who opined that, had the City marked the boundary of the leased property and constructed a proper access road, it would likely not have mistakenly placed garbage on neighboring property. The City's argument, that the inaccessibility of the landfill when the access road was wet made the pushing of trash onto the neighboring property a necessary consequence of the landfill operation, was rejected. The court of appeal concluded that the City's trespass "had nothing to do with the necessary and proper operation of the landfill, but was caused solely by the negligence of the City's employees or agents." Estate of Patout, p. 7, 708 So.2d at 530. Finding R.S. 9:5624 to be inapplicable, the court of appeal next reasoned that the continuous nature of the act of trespass and damage committed by the City constituted a continuing tort, so that prescription could not have begun to run until the offending acts were abated, citing South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531 (La.1982); W. Page Keaton et al., Prosser and Keaton on the Law of Torts, § 13, at 83 (5th ed.1984). Because the offending trash had remained on plaintiffs' property, the court of appeal concluded that the one year prescriptive period of articles 3492 and 3493 had not yet begun to run.

The defendant City of New Iberia and its insurers sought writs in this Court, urging two assignments of error. First, defendants argue that the lower courts erred in finding R.S. 9:5624 inapplicable to plaintiffs' claims. Secondly, and in the alternative, defendants contend that, because the City's conduct constitutes an appropriation, not a tort, plaintiffs' claims are governed by the three year prescriptive period for takings found in R.S. 13:5111, which period is unaffected by any continuing trespass. They have not assigned as error, nor presented argument in opposition to the court of appeal's final conclusion that plaintiffs' lawsuits, if governed by the general one year prescriptive period, are viable because the presence of the misplaced trash constitutes a continuing...