Full Opinion (html_with_citations)

CANAL STREET LAND                        *        NO. 2022-CA-0445
COMPANY, LLC
                                         *
VERSUS                                            COURT OF APPEAL
                                         *
MAPP CONSTRUCTION, LLC,                           FOURTH CIRCUIT
MPT OF NEW ORLEANS                       *
FCER, LLC AND OCHSNER                             STATE OF LOUISIANA
CLINIC, APC                         *******



                               APPEAL FROM
                CIVIL DISTRICT COURT, ORLEANS PARISH
                       NO. 2017-09619, DIVISION “B-5”
                          Honorable Rachael Johnson,
                                  ******
                          Chief Judge Terri F. Love
                                  ******
(Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge
Tiffany Gautier Chase)



Scott R. Bickford
Lawrence J. Centola, III
Jason Z. Landry
MARTZELL & BICKFORD, APC
338 Lafayette Street
New Orleans, LA 70130

      COUNSEL FOR PLAINTIFF/APPELLANT


Andre' Collins Gaudin
E. Alexis Bevis
BURGLASS & TANKERSLEY, LLC
5213 Airline Drive
Metairie, LA 70001


Jeffrey Scott Loeb
Michael W. Margiotta, Jr.
LOEB LAW FIRM II
1180 W. Causeway Approach
Mandeville, LA 70471
John W. Martinez
MARICLE & ASSOCIATES
#1 Sanctuary Boulevard, Suite 202
Mandeville, LA 70471

      COUNSEL FOR DEFENDANTS/APPELLEES




                              JUDGMENT VACATED AND REMANDED
                                               DECEMBER 14, 2022
TFL

JCL         This appeal involves a dispute between a property owner and contractors

TGC   regarding alleged damages the property owner incurred as a result of construction

      work performed by the contractors. Plaintiff, Canal Street Land Company, LLC

      (“Canal Street”), appeals the trial court’s judgment granting an exception of

      prescription filed on behalf of Defendants, Osborne Contractors (“Osborne”),

      MAPP Construction, LLC (“MAPP”), SUDDY’s Excavating Services, LLC

      (SUDDY’s), and The Travelers Indemnity Company (“Travelers”), SUDDY’s

      general liability insurer.

            We find that fact issues regarding the date that prescription began are

      irretrievably intertwined with evidence to prove the merits of Canal Street’s claim

      such that Defendants’ exception of prescription should be referred to the trial on

      the merits.    Accordingly, we vacate the judgment and remand the matter to the

      trial court for further proceedings consistent with this opinion.




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                     FACTUAL AND PROCEDURAL HISTORY

      Canal Street owns a building located at 4130 Canal Street (“the Property’).

Defendants, Osborne, MAPP, and SUDDY’s were retained to build an Ochsner

Emergency Room (“the Project”) adjacent to the Property. MAPP was hired as the

general contractor; Osborne was subcontracted to perform pile driving; and

SUDDY’s was subcontracted to perform demolition, excavation, and fill work at

the site. The construction work on the Project began in April 2016, and the Project

was completed in November 2016.

      Canal Street filed its Petition for Damages (the “Petition”) on October 5,

2017, alleging in part, the following:

                                           14.
      Over the course of approximately seven months, from May 2016
      through November 2016, pile driving operations and other heavy
      construction took place, shaking and vibrating Plaintiff’s building to
      such an extent that structural and foundational damage was caused.
      As a result of the pile driving operations and heavy vehicle use
      associated with the construction project over the course of seven
      months, Plaintiff’s building sustained structural and foundational
      damage, including, but not limited to, damage to pilings, plumbing
      damage, separation of plumbing and sewerage lines,
      subsoil/foundational shifting, sinking and cracking in the bricks,
      concrete, siding, stucco, sheetrock, interior walls, exterior walls,
      sidewalk, driveways, foundation and structure. Defendants have/had
      garde and construction over this equipment.

      Defendants separately filed an exception of prescription to Canal Street’s

Petition.   Defendants urged that Canal Street, through its sole member, Ryan

Scafidel, had constructive knowledge of facts which would indicate to a reasonable

person that Canal Street was a victim of a tort as early as February 1, 2016, and

from May through July 2016.        Hence, Canal Street’s Petition was prescribed

because suit was not filed until October 5, 2017.

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      Canal Street countered that Mr. Scafidel did not discover damages to the

Property until late fall 2016 and January 2017; that there was continued shaking of

its building from construction activities through November 2016; and that Canal

Street’s expert testified that damages to the Property were caused by all the

construction activities, including the activities that happened in November 2016.

Accordingly, Canal Street maintained that its Petition, filed on October 5, 2017,

was timely.

      Subsequent to the hearing on the merits, the trial court sustained Defendants’

exception of prescription and dismissed all claims against Defendants with

prejudice. The trial court reasoned that “there should have been a reasonable

inquiry and that there should’ve been some inspection . . .”

      Canal Street filed a motion for new trial, which was denied by the trial court.

This appeal followed.

                                      DISCUSSION

      Exception of Prescription

      Pursuant to La. C.C. art. 3492, the prescriptive period for delictual actions is

one year, which commences to run from the date the injury or damage is incurred.

See Lopez v. House of Faith Non-Denomination Ministries, 2009-1147, p. 3 (La.

App. 4 Cir. 1/13/10),
29 So.3d 680, 681
. Established jurisprudence provides that

damage is considered to have been sustained when it has manifested itself with

enough certainty to support a cause of action. Cole v. Celotex,
620 So.2d 1154, 1156
 (La. 1993). Actual knowledge of facts that would entitle a party to bring suit

is not necessary to begin the running of prescription; prescription will commence

as long as there is constructive knowledge sufficient to excite attention and put the




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injured party on guard and call for inquiry. Campo v. Correa, 2001-2707, p. 12

(La. 6/12/02),
828 So.2d 502, 510-11
.

      The party pleading prescription has the burden of proof to show plaintiff’s

action has prescribed; however, the burden of proof shifts to the plaintiff when a

claim has prescribed on the face of the petition. Lopez, 2009-1147, p. 3,
29 So.3d at 682
. In general, Louisiana jurisprudence strictly construes prescriptive statutes

against finding that the case has prescribed in favor of maintaining the action.

Risin v. D.N.C. Investments, L.L.C., p. 3 (La. App. 4 Cir. 12/7/05),
921 So.3d 133
,

135. Therefore, when two possible constructions exist, courts should adopt the

construction which maintains, rather than bars, the action. Id., 2005-0415, p. 3,

921 So.2d at 136.

      On appellate review of an exception of prescription, a trial court’s findings

of fact are subject to the manifest error/clearly wrong standard of review; however,

the de novo standard of review applies to a trial court’s legal conclusions. See

Crosby v. Sahuque Realty Company, 2017-0424, p. 6 (La. App. 4 Cir. 12/28/17),
234 So.3d 1190
, 1196.

      Assignments of Error

      Canal Street contends that the trial court erroneously granted Defendants’

exception of prescription in that (1) its October 5, 2017 Petition was filed within

one year of the time that it acquired knowledge of its damages; and (2) the Petition

was filed within a year of the November 2016 date that work near the Property

ceased. Canal Street adds that its expert testified that the complained of damages

sometimes do not immediately manifest; that the damages might have continued to

manifest after the work ended; and that it was not known as to whether or not the

damages developed between November 2016 and January 2017.

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      Contrariwise, Defendants maintain that Canal Street, through Mr. Scafidel,

had constructive knowledge to indicate to a reasonable person that it was the

victim of a tort as early as May 2016. In support of this position, Defendants note

that a Project Engineer e-mailed Mr. Scafidel on February 1, 2016, to request a

preconstruction video of the Property. The purpose of the request was to document

the Property in the event any damages occurred as a result of the nearby

construction activities. Defendants also cite Mr. Scafidel’s deposition testimony,

wherein he noticed shaking and vibration of the Property principally from May

through July 2016, as evidence that Canal Street knew it was the victim of a tort

between May and July 2016, and nevertheless, failed to file suit until October 5,

2017. Mr. Scafidel’s deposition testimony included the following:

      Q.     Okay. Do you recall the shaking of your building?

      A.     Yes.

      Q.     And when did that happen?

      A.     May through July. Truthfully, the shaking happened almost the
      entire time, but principally May through July, there was continued
      shaking and vibration going all the way up until November.

Additionally, Defendants reference a video taken by one of Canal Street’s tenants

depicting shaking and vibrations, which Mr. Scafidel reviewed no later than

August 11, 2016. Defendants contend that all of these occurrences constitute proof

that Canal Street filed its Petition more than a year after it had obtained

constructive knowledge of damages caused by Defendants. Defendants also claim

that their experts testified that there is typically no lag time between vibration and

the manifestation of damage; that any damage that manifested after the Project was

completed was not related to the construction activities; and that damage to

structures caused by vibrations immediately manifest.

                                          5
       Law/Analysis

       The fundamental dispute between the parties regarding the timeliness of

Canal Street’s Petition hinges on resolving the question of manifestation of

damages, i.e., when did the damages manifest and whether there was a delay

between the manifestation of the damages and the cessation of Defendants’ alleged

tortious conduct. We find that the answer to these manifestation issues not only

goes to whether or not Canal Street timely filed suit, but also to its ability to prove

the merits of its claim.

       One of the fundamental elements of a general negligence action is whether

the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries.

See Crosby v. Sahuque Realty Company, Inc., 2017-0424, p. 10 (La. App. 4 Cir.

12/28/17),
234 So.3d 1190
, 1197-98.           Here, Defendants allege that, if indeed, any

damages occurred that resulted from Defendants’ construction activities, the

damages would have immediately manifested. As such, Canal Street’s Petition

was not timely filed within a year of the date that any substantial work on the

Project completed by Defendants could have caused Canal Street’s damages; and

consequently, any damages that Canal Street contends manifested in November

2016 were not caused by Defendants.1 On the other hand, Canal Street reiterates

that its Petition is timely because Defendants’ action that caused the damages

continued through November 2016, and additionally, its expert indicates that the

damages could have continued to manifest even after the Project’s completion.




1 Specifically, SUDDY maintains that August 1, 2016 was its last day of any substantive activity

and September 19, 2016, was the last day of its physical presence on the Project. Osborne claims
it performed pile driving activities from April 29, 2016 through May 5, 2016. MAPP does not
dispute that it remained on the Project until November 2016.


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      Established Louisiana jurisprudence recognizes that when a question of

prescription is so intertwined with the merits of a plaintiff’s claim, the exception

should be referred to the merits.       See Short v. Griffin, 95-0689, pp. 2-3 (La.

6/16/95),
656 So.2d 635, 636
; Lodriques v. Duhe, 08-0916 (La. 6/27/08),
983 So.2d 1287
, 1288. In the case sub judice, the evidence required to resolve the issue

of prescription is substantially interrelated with the evidence required to prove the

merits of Canal Street’s general negligence claim. Accordingly, we find that the

trial court should not have granted Defendants’ exception of prescription, but

rather, the exception should have been referred to the merits.

                                      DECREE

      Based on the foregoing, we vacate the judgment, and the case is remanded to

the trial court for further proceedings consistent with this opinion.



                                 JUDGMENT VACATED AND REMANDED




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