Opinion
2022 CA 0624
12-22-2022
KRTSTEN DANIELLE BRECHEEN v. MATTHEW W. SKOK AND NANCY SKOK
Scott E. Frazier, Jacob B. Huddleston, Eric A. Kracht, John M. Madison, III Baton Rouge, LA Counsel for Plaintiff/Appellant Kristen Danielle Brecheen Catherine E. Smith, Adrian G. Nadeau, Anne R. Nancy Skok, Counsel for Defendant/Appellee
On appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number C677319 Honorable Donald R. Johnson, Judge Presiding
Scott E. Frazier, Jacob B. Huddleston, Eric A. Kracht, John M. Madison, III Baton Rouge, LA Counsel for Plaintiff/Appellant Kristen Danielle Brecheen
Catherine E. Smith, Adrian G. Nadeau, Anne R. "Nancy" Skok, Counsel for Defendant/Appellee
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
GUIDRY, J.
This is an appeal from a judgment sustaining the defendant's exception of prescription. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On December 19, 2018, the plaintiff herein, Kristen Danielle Brecheen, filed a petition for declaratory judgment, injunctive relief, and damages, naming as defendants Matthew W. Skok and Anne R. "Nancy" Skok (the Skoks). In her petition, Ms. Brecheen alleged that increased storm water runoff from the Skok property caused damage to her property. The Skoks filed an answer, generally denying the allegations of the petition. Thereafter, Ms. Skok filed an exception of prescription, praying that Ms. Brecheen's petition be dismissed with prejudice.
All claims against Matthew Skok were dismissed on July 31, 2019.
Following a hearing, the trial court sustained the exception of prescription in part "as to any and all claims and/or causes of action for damages," signing a judgment on January 27, 2022. Ms. Brecheen now appeals the judgment. Ms. Brecheen contends the trial court erred in finding her claim for damages prescribed and that she failed to establish a continuing tort.
The exception was overruled "as to those claims and/or causes of action for declaratory judgment and injunctive relief." The trial court signed an order, on March 16, 2022, designating the January 27, 2022 judgment as final, in accordance with La. C.C.P. art. 1915(B). Moreover, although the judgment erroneously states it was signed on January 27, 2021, the record demonstrates, and the parties agree, that it was signed on January 27, 2022.
DISCUSSION
Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. Ordinarily, a party urging an exception of prescription bears the burden of proving that the prescriptive period has elapsed. However, if the petition shows that it is prescribed on its face, then the burden shifts to the plaintiff to prove that the prescriptive period has not elapsed. See Templet v. State through Department of Public Safety and Corrections, 19-0037, p. 4(La.App. IstCir. 11/15/19), 290 So.3d 187, 191.
Evidence may be introduced to support or controvert the exception of prescription when the grounds thereof do not appear from the petition. See La. C.C.P. art. 931. In the absence of evidence, the exception must be decided on the facts alleged in the petition, which are accepted as true. Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 11-2835, p. 26 (La. 11/2/12), 125 So.3d 1057, 1072. When, as here, evidence is received at the trial of the exception, the appellate court reviews the trial court's factual findings under the manifest error-clearly wrong standard. See Thompson v. Town of Jonesboro, 16-1224, p. 4 (La.App. IstCir. 6/2/17), 222 So. 3d770, 772.
In the instant matter, the trial court determined that La. C.C. art. 3493 was applicable to the facts of this case, and that the plaintiffs claims for damages were prescribed after one year. We agree. Plaintiff alleges in her petition that after the Skoks purchased their property "in or about" January of 2014, they demolished the existing single-family residence on the property and elevated the site in preparation for construction of a new and substantially larger single-family home, Construction of that new home was completed "sometime in May of 2016." Plaintiff further alleges that site grading, elevation, and drainage works constructed on the Skok property altered the previously existing and/or natural flow of drainage from the Skok property. According to the petition, uAs a result of Skok's construction of a much larger house ... as well as the installation of drainage works, and/or failure to construct same, [plaintiffs] property ... has been inundated with storm water runoff flowing rapidly from the Skok Property."
See Dean v. Hercules, Inc.. 328 So.2d 69, 73 (La. 1976) (stating that La. C.C. art. 2315 was broad enough to include the obligations imposed by the then La. C.C. art. 667, addressing limitations on use of property, and because the acts which would violate the obligations imposed by C.C, art. 667 could so easily be said to be an "act whatever of man that causes damage to another," it is entirely logical that the same prescriptive period should apply to both); also see Gaharan v. State through Department of Transportation and Development, 566 So, 2d 1007, 1012 (La.App. 3d Cir. 1990) ("By the same reasoning as that employed in Dean, we find that the action for damages caused by a breach of the obligation not to do anything to prevent natural drainage [under La. C.C. art. 656, obligations of owners], prescribes in one year."). Further, La. C.C. art. 3493 provides, "When damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage."
Further, in plaintiffs deposition testimony, which was introduced into evidence at the hearing on the exception, plaintiff admitted that during the summer of 2015 she began having mudslides when it rained and noticed bulging in her walls, which she attributed to the construction of the Skok home. Accordingly, plaintiffs suit, filed more than a year after she acquired knowledge of the damage to her property, is prescribed, unless there is merit to plaintiffs contention that her claim constitutes a continuing tort, which suspends the running of prescription.
Plaintiff testified similarly at the trial of the exception.
Plaintiffs petition is prescribed on its face. Thus, plaintiff bears the burden of proof to show that her action is not prescribed. See Quinn v. Louisiana Citizens Property Insurance Corporation. 12-0152, p. 9 (La. 11/2/12), 118 So.3d 1011, 1017.
A plaintiff must allege both continuous action and continuous damage in order to allege a continuing tort. Abrams v. Herbert, 590 So.2d 1291, 1294 (La.App. 1st Cir. 1991). The focus of the continuing tort inquiry is a conduct-based one, asking whether the tortfeasor perpetuates the injury through overt, persistent, and ongoing acts. Hogg v. Chevron USA, Inc., 09-2632, p. 16 (La. 7/6/10), 45 So.3d 991, 1003. Where the cause of injury is a continuous one giving rise to successive damages, prescription does not begin to run until the conduct causing the damage is abated. But if the operating cause of the injury is discontinuous (not a continuous one of daily occurrence), there are a multiplicity of causes of action and of corresponding prescriptive periods. Benson v. State, Department of Revenue through Office of Alcohol and Tobacco Control. 17-0081, p. 4 (La.App. 1st Cir. 9/15/17), 227 So.3d 847, 850. If the operating cause of the damage is discontinuous in nature, even if the damage is continuous, the continuing tort theory is inapplicable, and prescription runs from the date that knowledge of such damage was apparent or should have been apparent to the injured party. Crump v. Sabine River Authority, 98-2326, p. 7 (La. 6/29/99), 737 So.2d 720, 726.
We conclude that the plaintiff herein has neither alleged nor established the existence of a continuing tort. While the plaintiff has alleged continuous damage, the plaintiff has not alleged a continuous or repetitive operating cause of such damage. Rather, as asserted in the petition, the operating cause of the claimed injury (the damage-causing conduct) was the construction of the Skoks' new residence (including the installation of drainage works). Certainly, the building of that residence was a discrete event, discontinuous in nature. There would be no "storm water runoff flowing rapidly from the Skok Property" without the construction of the new home. Stated differently, the construction of the new home, standing alone, is the cause of plaintiffs claimed continuing damages. However, as plaintiff asserts in her petition, the construction of the home was completed sometime in May of 2016.
As found in Hogg, 09-2632 at p. 21, 45 So.3d at 1005, and the cases cited therein, where wrongful conduct was completed, but the plaintiff continued to experience injury in the absence of any further activity by the tortfeasor, no continuing tort was found. And as to any argument by plaintiff that the continuing tort is an ongoing failure to remedy the damage, it is well-settled that the breach of the duty to right a wrong and make the plaintiff whole cannot be a continuing wrong that suspends the running of prescription, as that is the purpose of any lawsuit and the obligation of every tortfeasor. See Crump, 98-2326 at 10, 737 So.2d at 729, As evidenced by the plaintiffs testimony, the plaintiff acquired knowledge of the damage to her property sufficient to commence the running of prescription no later than the summer of 2015. Consequently, where the continuing tort doctrine is inapplicable, plaintiffs action, filed in December of 2018, more than a year after prescription commenced to run, is prescribed. We thus fmd no error in the trial court's ruling, which sustained the exception of prescription.
CONCLUSION
For the above and foregoing reasons, the January 27, 2022 judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Kristen Danielle Brecheen.
AFFIRMED.