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Bernard v. City of Marksville

Court of Appeal of Louisiana, Third Circuit

December 17, 2014

GLENN BERNARD AND RANDY BERNARD
v.
CITY OF MARKSVILLE

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

AFFIRMED.

Chad P. Guillot, Marksville, LA, ATTORNEYS FOR PLAINTIFFS/APPELLANTS, Glenn Bernard and Randy Bernard.

Derrick M. Whittington, Whittington Law Firm, Marksville, LA, ATTORNEY FOR DEFENDANTS/APPELLEES, City of Marksville.

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

OPINION

Page 1247

[14-730 La.App. 3 Cir. 2] 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."

[14-730 La.App. 3 Cir. 3] 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 ...


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