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Rubin v. Non-Flood Protection Asset Management Authority

Court of Appeals of Louisiana, Fourth Circuit

November 14, 2018


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-07582, DIVISION "E-16" Honorable Melvin C. Zeno, Judge


          Virgil 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

          Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase


         Richard L. Rubin, M.D. (hereinafter "Dr. Rubin"), Rachael Sherman Rubin (hereinafter "Rachael") and Carolyn L. Rubin (hereinafter "Carolyn"), [1] 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.

         Facts and Procedural History

         On 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.

         On 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.

         On May 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.

          On 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.

         The 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.[2] This appeal followed.

          Jurisdictional Issue

         An 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 ...

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