BENJAMIN F. CROSBY AND BENTEX ASSOCIATES, INC.
SAHUQUE REALTY COMPANY, INC., LATTER & BLUM PROPERTY MANAGEMENT, INC., ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2009-11421 C\W
2010-6486, DIVISION "B" Honorable Regina H. Woods,
LOBRANO, J., CONCURS IN THE RESULT Andrew R. Lee Samantha M.
Schott JONES WALKER LLP COUNSEL FOR PLAINTIFFS/APPELLANTS
J. Wanek Lynda A. Tafaro Elizabeth B. McDermott McCRANIE,
SISTRUNK, ANZELMO, HARDY, MAXWELL, McDANIEL & WELCH, PC
COUNSEL FOR DEFENDANTS/APPELLANTS
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Sandra Cabrina Jenkins
F. Love Judge.
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.
HISTORY AND FACTUAL BACKGROUND
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
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.  Bentex leased the third apartment for use
as a decorated showroom.
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
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.
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.
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.
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.
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.
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."
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