RICHARD L. RUBIN, M.D.
NON-FLOOD PROTECTION ASSET MANAGEMENT AUTHORITY, ORLEANS LEVEE DISTRICT, SOUTHEAST LOUISIANA FLOOD PROTECTION AUTHORITY-EAST, STATE OF LOUISIANA, ABC INSURANCE COMPANY, J.P. & SONS DREDGING L.L.C. AND DEF INSURANCE COMPANY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-07582,
DIVISION "E-16" Honorable Melvin C. Zeno, Judge
Stephen K. Conroy Brian A. Gilbert CONROY LAW FIRM, PLC
COUNSEL FOR PLAINTIFF/APPELLANT
Addison Lacy, III William Lee Brockman BLUE WILLIAMS, L.L.P
Gerard G. Metzger Charles T. Curtis, Jr. GERARD G. METZGER,
APLC Byron D. Kitchens Charles H. Abbott FORMAN WATKINS &
KRUTZ, LLP COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Tiffany G. Chase
TIFFANY G. CHASE JUDGE
L. Rubin, M.D. (hereinafter "Dr. Rubin"), Rachael
Sherman Rubin (hereinafter "Rachael") and Carolyn
L. Rubin (hereinafter "Carolyn"),  seek review of
the trial court's December 5, 2017 judgment granting
Non-Flood Protection Asset Management Authority and J.P.
& Sons Dredging L.L.C.'s exceptions of prescription.
The Rubins also seek review of the March 9, 2018 judgment
denying their motion for new trial. For the reasons that
follow, we reverse the judgment of the trial court granting
the exception of prescription and pretermit review of the
judgment denying the motion for new trial.
and Procedural History
November 16, 1972, Dr. Rubin was assigned the lease of the
land and water bottom located at 7315 West Roadway, Boathouse
#W-18, New Orleans, LA 70124 (hereinafter "the
property") from Peter Fountain (hereinafter "Mr.
Fountain). Mr. Fountain was leasing the property from the
Non-Flood Protection Asset Management Authority's
(hereinafter "the Authority") predecessor, The
Orleans Levee Board. Dr. Rubin also purchased the buildings,
fixtures and improvements located on the property from Mr.
Fountain. In 1996, Dr. Rubin sold fifty-percent interest of
the lease in the property to his daughter Rachel. In 2008,
Dr. Rubin renewed the lease with the Authority and executed a
new lease agreement. In 2011, he donated his remaining
fifty-percent interest in the lease to his daughter Carolyn.
August 17, 2015, the adjacent boathouses collapsed and
damaged the boathouse located on the property. The Authority
contracted with J.P. & Sons Dredging L.L.C. (hereinafter
"JPSD") to perform demolition of the adjacent
properties. In December 2015, while the demolition was being
performed by JPSD, the property was further damaged. As a
result, Dr. Rubin filed a petition for damages, on July 28,
2016, naming the Authority and JPSD as defendants. Dr. Rubin
alleged the Authority was negligent in failing to take any
actions regarding the deteriorating adjacent properties and
JPSD breached the standard of care for contractors while
performing the demolition. Dr. Rubin filed a first amended
and supplemental petition on December 9, 2016, alleging that
his furniture in the boathouse was also damaged as a result
of the collapse of the adjacent property.
22, 2017, the Authority filed a partial exception of no right
of action arguing that Dr. Rubin was not the proper party to
bring the lawsuit because he did not possess an ownership
interest in the property. On May 24, 2017, JPSD filed an
identical partial exception of no right of action
articulating the same argument as the Authority. By judgment
dated August 1, 2017, the trial court granted both exceptions
of no cause of action, reasoning that in a tort action for
damage to property, the proper party to bring the action is
the owner of the property. The trial court gave Dr. Rubin
fifteen days after the notice of signing of judgment, which
was signed on August 10, 2017, to amend his petition.
August 24, 2017, Dr. Rubin filed a second amending and
supplemental petition acknowledging that Carolyn and Rachael
owned one-hundred percent of the lease in the property.
Additionally, for the first time, Mr. Rubin pled that Carolyn
and Rachael previously executed powers of attorney, granting
him the power to act as their lawful agent. Dr. Rubin
contended that the power of attorney authorized him to
institute the current litigation against the Authority and
JPSD on behalf of his daughters. On September 21, 2017,
Carolyn and Rachael filed a petition for intervention arguing
they were entitled to damages, as the owners of the property,
due to the negligent actions of the Authority and JPSD
regarding the demolition of the adjacent properties. On
October 4, 2017, the Authority and JPSD filed a joint motion
to strike, alternatively, exception of lack of procedural
capacity and exception of prescription. In response, the
Rubins argued that the petition for intervention was timely
because it was filed within ninety days of the second
amending and supplemental petition.
matter was heard by the trial court on November 17, 2017. A
judgment was issued on December 5, 2017, granting the
exception of prescription; deeming the motion to strike and
exception of lack of procedural capacity moot; dismissing the
Rubins' claim for damages regarding the boathouse and
dock with prejudice; and reserving Dr. Rubin's claim for
damages with regards to his personal property. The Rubins
filed a motion for new trial on December 11, 2017. The trial
court denied the motion by judgment signed March 9,
2018. This appeal followed.
appellate court has an independent duty to consider whether
it has subject matter jurisdiction over the matter, even when
the issue is not raised by litigants. See Urquhart v.
Spencer, 2015-1354, p. 3 (La.App. 4 Cir. 12/1/16), 204
So.3d 1074, 1077 (quoting Moon v. City of New
Orleans, 2015-1092, 2015-1093, p. 5 (La.App. 4 Cir.
3/16/16), 190 So.3d 422, 425). This Court has previously
determined that perfecting an appeal of a judgment, pursuant
to the requirements of La. C.C.P. art. 2121, requires (1) a
petition or motion for appeal, (2) an order of appeal and (3)
a notice of appeal. State v. Dennis, 2014-1258, p. 2
(La.App. 4 Cir. 4/29/15), 165 So.3d 1124, 1126 (quoting
Bremermann v. Bremermann, 2005-0547, p. 2 (La.App. 4