FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-03737,
DIVISION "C" Honorable Sidney H. Cates, Judge.
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
composed of Judge Roland L. Belsome, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew-Woods
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.
AND PROCEDURAL HISTORY
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. 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.
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.
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; 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.
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.
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.
raises the following ...