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639 Julia Street Partners v. The City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

May 2, 2018

639 JULIA STREET PARTNERS
v.
THE CITY OF NEW ORLEANS, ET AL.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-03737, DIVISION "C" Honorable Sidney H. Cates, Judge.

          Miles G. Trapolin COUNSEL FOR PLAINTIFF/APPELLANT

          Rebecca H. Dietz City Attorney Derek M. Mercadal Kimlin S. Lee Churita H. Hansell Assistant City Attorneys Christopher R. Teske Elizabeth A. Chickering GIEGER, LABORDE & LAPEROUSE, L.L.C. Richard G. Duplantier, Jr. Peter A. Bourgeois GALLOWAY JOHNSON TOMPKINS BURR & SMITH COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods

          Regina Bartholomew-Woods, Judge.

         In this negligence case, Plaintiff-Appellant, 639 Julia Street Partners, appeals the August 21, 2017 judgment granting the joint exception of prescription in favor of Defendants-Appellees, the City of New Orleans through its Department of Parks and Parkways, the Downtown Development District, and Bayou Tree Service, Inc. For the reasons that follow, we reverse and remand for further proceedings.

         FACTUAL AND PROCEDURAL HISTORY

         Plaintiff-Appellant, 639 Julia Street Partners ("Appellant"), owns a two (2) story, red brick building ("building") situated at the corner of Saint Charles Avenue and Julia Street in New Orleans, Louisiana.[1] Peter Trapolin ("Trapolin"), Appellant's managing partner, alleged that in 2010, he noticed "new cracks in the building that seemed to coincide with the maturation of Chinese pistachio trees that were planted as saplings years before by (Defendants-Appellees) the City of New Orleans ("the City") and the Downtown Development District ("the DDD") (collectively, "Appellees"). Trapolin asserted that he wrote to Appellees and requested that the trees be removed; however, Appellees refused, and on April 5, 2011, Appellant filed suit in the Civil District Court for the Parish of Orleans. Appellant asserts that suit was filed within a year of his knowledge of the new cracks in the building, which he attributed to the maturation of the Chinese pistachio trees.

         In 1998, Appellant filed suit against the City for damage caused to the building by red oak trees that the City had planted along Saint Charles Avenue in preparation for the 1984 World's Fair. In his brief, Appellant explains that "the roots of the mature oak trees had grown under the foundation and pulled the moisture out of the clay causing the foundation and walls to crack." In 2001, the trial court rendered judgment finding the City negligent and awarded damages in favor of Appellant.

         In the present matter, Appellees contend that the Chinese pistachio trees at issue in this appeal were planted between 1996 and 1998. Appellees deny that the building has sustained any damage caused by the tress, but argue that Appellant "acquired or should have acquired knowledge of the damage caused by the trees in September 2000, " during the pendency of the earlier lawsuit. Appellees argue further that this is a delictual action involving an immovable property subject to one (1) year liberative prescription;[2] therefore, Appellant's claim has prescribed because the present suit was filed more than ten (10) years after Appellant acquired or should have acquired knowledge of the damage.

         Appellant asserts that, in 1998, the Chinese pistachio trees were planted as saplings and were small, young trees during the pendency of the earlier suit. Appellant further asserts that at issue in this suit is new damage along the Julia Street side of the building where the roots of the now-mature Chinese pistachio trees have reached and damaged the building's foundation. By contrast, the damage in the earlier suit was on the St. Charles side of the building.

         On April 27, 2017, Appellees filed a joint exception of prescription. On August 21, 2017, the trial court rendered judgment with incorporated reasons maintaining the exception and dismissing Appellant's claims. It is from this judgment that Appellant appeals.

         DISCUSSION

         Appellant raises the following ...


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