IVY RESTAURANT NEW ORLEANS, LLC, PATRICK SINGLEY, REBECCA SINGLEY, GAUTREAU'S ACQUISITION CORP., ALBERTA PATE AND JILL STOUTZ
LEONARD A. TORRE AND REGINA V. TORRE
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09422,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
M. Bruno Melissa A. Debarbieris BRUNO & BRUNO LLP COUNSEL
FOR PLAINTIFF/APPELLANT, JILL STOUTZ.
K. Persons John E. Unsworth, Jr. HAILEY McNAMARA HALL LARMANN
& PAPALE, L.L.P. AND R. Joshua Koch, Jr. KOCH AND SCHMIDT
COUNSEL FOR DEFENDANTS/APPELLEES, LEONARD AND REGINA TORRE.
composed of Judge Terri F. Love, Judge Madeleine M. Landrieu,
Judge Regina Bartholomew-Woods
F. LOVE, JUDGE
own commercial property that is leased to varying types of
businesses. Plaintiffs are a group of former business owner
lessors who filed suit against the defendants for allegedly
concealing "a noisome odor" defect in the property
that caused damages. The trial court dismissed
appellant's delictual and contractual claims finding that
the claims were prescribed. Appellant now appeals contending
that defendants "fraudulently" concealed the defect
and that the doctrine of contra non valentem
applies. Allegations of fraud did not prevent prescription
from tolling because a reasonable person exercising
reasonable diligence would have known of the cause of action.
Likewise, the doctrine of contra non valentem does
not apply because appellant was aware of the facts
surrounding her cause of action. The continuing tort is also
inapplicable, as the alleged harmful acts ceased over ten
years prior to the filing of the petition. The trial court
did not commit manifest error by dismissing the claims. The
judgment of the trial court is affirmed.
BACKGROUND AND PROCEDURAL HISTORY
and Regina Torre (collectively "Torres") own the
commercial property located at 5015 Magazine Street
("Property") in New Orleans. The Torres leased the
Property to various small business owners. Around November
2002, Jill Stoutz leased the Property to operate a furniture
store named Stowell & Stoutz. "Soon after
opening" Stowell & Stoutz between November 2002 and
November 2003, Ms. Stoutz "encountered an unpleasant
odor that was not detected at the time she entered into a
lease with" the Torres. Ms. Stoutz burned scented
candles during business hours in attempt to hide the odor.
The odor remained despite Ms. Stoutz's attempts at
eradication. Ms. Stoutz informed the Torres. However, the
Torres' claimed they had no knowledge of an odor and
maintained that Ms. Stoutz was responsible for remedying the
situation. Ms. Stoutz asserted that the odor or
"pre-existing defect . . . made it impossible for
plaintiff to maintain peaceable possession of the premises .
. . Stoutz was forced to leave the Premises and relocate her
business" around November 2003.
2004, Alberta Pate leased the Property and renovated it in
order to operate a restaurant. During the renovation, Ms.
Pate added a kitchen and a second bathroom to the Property.
After opening the restaurant in October 2005, Ms. Pate
noticed an odor with an undeterminable origin. Ms. Pate
stated that "the smell interfered with . . . normal
business operations and the restaurant was forced to close
for the evening on several occasions." Ms. Pate also
alleged that customers would leave after being seated because
of the odor. In 2007, Ms. Pate contends that the odor forced
the closure of the restaurant.
Vizard leased the Property from 2008 to 2012 for the
operation of Vizard's on the Avenue. The odor in the
Property allegedly "had a negative effect on
Vizard's business and, along with its concealment by the
Defendant, resulted in Vizard's restaurant ceasing
operations prior to the end of the lease term."
March 2013, Ivy Restaurant of New Orleans, LLC ("Ivy")
leased the Property to operate a restaurant. During
renovations, a neighbor complained of an odor emanating from
the Property. Ivy's plumber "was unable to identify
the source of the smell, but "raised the height of the
evacuation pipes at the rear of the Property." After
opening the restaurant, Ivy noticed an odor throughout the
restaurant. Then, "[i]n or around early 2015, as a
direct and proximate result of Defendants' failure to
maintain and/or repair the pre-existing defect, Ivy was
forced to close the restaurant."
October 1, 2015, Ivy; the Singleys; Gautreau's, Ms. Pate,
and Ms. Stoutz (collectively "Plaintiffs") filed a
Petition for Damages against the Torres for concealing the
defect of "a noisome odor" in the Property. The
Torres filed exceptions of prescription, no cause of action,
no right of action, improper cumulation, and improper joinder
of parties. The trial court granted the Torres' exception
of prescription regarding Ms. Stoutz's and Ms. Pate's
delictual claims, as well as on Ms. Stoutz's contractual
claims. The trial court also granted the Torres'
exception of no right of action in regards to the Singleys
and Gautreau. The trial court denied the Torres'
exception of improper cumulation and/or joinder. The trial
court's judgment resulted in the dismissal of all claims
against the Torres except for Ms. Pate's contractual
Stoutz and Ms. Pate then filed a Notice of Intent to seek
supervisory review of the trial court's judgment. This
Court granted the writ in part to remand the matter for the
trial court to consider the Notice of Intent as a Motion for
Appeal. Ivy Restaurant New Orleans, LLC, et al. v.
Leonard A. Torre and Regina V. Torre, 16-0377 ...