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Crosby v. Sahuque Realty Co., Inc.

Court of Appeals of Louisiana, Fourth Circuit

December 28, 2017

BENJAMIN F. CROSBY AND BENTEX ASSOCIATES, INC.
v.
SAHUQUE REALTY COMPANY, INC., LATTER & BLUM PROPERTY MANAGEMENT, INC., ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2009-11421 C\W 2010-6486, DIVISION "B" Honorable Regina H. Woods, Judge.

          LOBRANO, J., CONCURS IN THE RESULT Andrew R. Lee Samantha M. Schott JONES WALKER LLP COUNSEL FOR PLAINTIFFS/APPELLANTS

          Peter J. Wanek Lynda A. Tafaro Elizabeth B. McDermott McCRANIE, SISTRUNK, ANZELMO, HARDY, MAXWELL, McDANIEL & WELCH, PC COUNSEL FOR DEFENDANTS/APPELLANTS

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

          Terri F. Love Judge.

         This appeal involves a landlord-tenant dispute over damages to movable property allegedly due to water intrusion in the leased property. Plaintiffs Benjamin Crosby ("Mr. Crosby") and Bentex Associates, Inc. ("Bentex"), seek review of the trial court's November 2016 ruling granting summary judgment in favor of defendant Sahuque Realty Company, Inc ("Sahuque"). We find no error in the trial court's ruling partially granting Sahuque's exception of prescription, finding Mr. Crosby's pre-2008 claims have prescribed. Additionally, pursuant to our de novo review, we find genuine issues of material fact exist, precluding summary judgment. Therefore, we reverse the trial court's judgment in favor of Sahuque and remand for further proceedings.

         PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         Mr. Crosby, an interior designer, founded his company Bentex, through which Mr. Crosby purchased textiles that Bentex would convert into draperies, rugs, upholstery, bedding, wall covering, and other furnishings. Bentex would then sell the finished products to hotels, cruise ships, and other buyers nationwide.

         Mr. Crosby leased three apartments owned by Sahuque, and later managed by Latter & Blum Property Management, Inc. ("Latter & Blum") (collectively "Defendants"), at 708 Orleans Avenue in the New Orleans French Quarter. Mr. Crosby, whose primary residence is in Florida, used two of the apartments as his second home until September 2008. [1] Bentex leased the third apartment for use as a decorated showroom.

         Mr. Crosby and Bentex initially entered into written lease contracts for the apartments. A provision included in the leases waived Sahuque's liability for "any injury or damages to any property or to any person on or about the leased premises or for any injury or damage to any property of lessee." The leases further stated that, if the property suffered partial but reparable destruction, the lessor could choose to cancel the lease or instead repair the damage after notification to the lessee. The leases also contained a provision that purported to release Sahuque of any responsibility for water damage "unless same is caused by lessor's failure to comply with any obligations expressly assumed in this lease." After the leases expired on December 31, 2004, Mr. Crosby and Bentex continued leasing the properties pursuant to an oral agreement on a month-to-month basis.

         Sahuque admitted that on at least five occasions between 1995 and 2000, rain events caused water to flow into the apartments and cause damage to plaintiffs' property. During plaintiffs' occupancy, from the mid-1990s until June 2009, plaintiffs experienced water intrusion into the apartments that damaged plaintiffs' movable property, including interior furnishings, draperies, and artwork. There is a factual dispute over the last date of water intrusion that caused damages to Mr. Crosby's belongings.

         Plaintiffs filed their original petition in October 26, 2009, alleging that defendants breached duties they owed pursuant to the lease contracts and under law. Plaintiffs alleged that despite repeated notice, defendants failed to make necessary repairs to weatherproof the leased property. Plaintiffs averred that the units became infested with mold, causing Mr. Crosby to seek medical treatment. The original petition sought damages for Mr. Crosby's personal injuries, medical expenses, and for mold contamination and resulting damages to personal property.

         Plaintiffs filed a petition for damages, claiming defendants failed to properly weatherproof and make necessary repairs to the leased property constituting a continuing tort, because the operating cause of the injury was ongoing and gave rise to successive damages. Defendants disputed plaintiffs' claims, arguing that the alleged damages resulted from the separate weather-related occurrences of water intrusion into the units, rather than from defendants' continuous tortious conduct. Defendants filed an exception of prescription, which the trial court granted; however, this Court reversed on appeal.[2]

         Sahuque reasserted its exception of prescription on remand. The trial court found that because plaintiffs filed suit in October 2009, plaintiffs' claim regarding the January 2009 rain event was within the one-year liberative prescription period. The trial court also found that plaintiffs claim based on the August 2008 rain event was not prescribed. The trial court determined in light of the parties' January 2009 agreement, which Mr. Crosby memorialized, defendants had lulled plaintiffs into inaction, as contemplated by the doctrine of contra non valentum. Therefore, on April 2, 2014, the trial court partially granted the exception, concluding that only plaintiffs' claims relating to the August 2008 and January 2009 rain events were not prescribed.

         In July 2015, shortly after Sahuque filed a motion to compel discovery, plaintiffs' counsel withdrew from the case. The trial court allowed plaintiffs an opportunity to obtain new counsel. Subsequently, Sahuque moved to dismiss plaintiffs' lawsuit, citing plaintiffs' failure to enroll new counsel, to provide dates for Mr. Crosby's deposition, and to respond to discovery. Mr. Crosby appeared pro se for himself and Bentex at the April 2016 hearing, explaining the delay in obtaining new counsel. The trial court nevertheless granted in part the motion to dismiss, dismissing with prejudice all of Bentex's claims on the basis that Mr. Crosby could not represent the company pro se and ordered Mr. Crosby to respond to defendants' discovery requests.

         Thereafter, Sahuque filed a motion for summary judgment. At the hearing, Sahuque argued that Mr. Crosby failed to produce an expert witness to establish that the August 2008 and January 2009 water intrusion events were the cause-in-fact of Mr. Crosby's damages. Mr. Crosby submitted an engineer report which he alleges established that the 2008 and 2009 water intrusion events caused the mold found in the units. Additionally, Mr. Crosby submitted a detailed, sworn affidavit, including specific statements that the August 2008 water intrusion event caused mold to propagate in the units, rendering his personal property toxic and unusable. Mr. Crosby also attached an inventory of the "personal property damaged by exterior water intrusion or mold infestation/contamination or both from August 21, 2008 forward to June, 2009."

         The trial court found Mr. Crosby failed to establish what damages were caused by the non-prescribed August 2008 and January 2009 water intrusion events. The trial court also rejected Mr. Crosby's affidavit as "self-serving" and determined that Mr. Crosby failed to corroborate his testimony with the testimony or affidavit of an independent eye-witness. The trial court granted summary judgment in ...


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