Lorise M. Naquin and Lucy Nguyen Naquin and Grantly, LLC VS Bollinger Shipyards, Inc., Formerly Bollinger Machine Shop and Shipyard, Inc.
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STATE OF LOUISIAl A COURT OF APPEAI FIRST CIRCUIT 7 2011CW12 LORISE M NAQUIN AND LUC NGTJYEN NA AND GRANTLY LLC UIN RSUS V BOLLTNGER SHIPYARDS INCFORNIERLY BULLINGER MACHINE SHOP AND SHIPYARD INC SEP ment Judg endered o 012 r Appealed from the G nteenth Sev Judicial District Court In and for the Parish of Lafourche State of Louisiana Suit Number 101102 Honorable Jerome J Barbera II Presiding Ra1ph A Alexis III Stephen B Murray Arthur M Murray Jessica W Hayes Counsel for Plaintiff 2nd Appellant Lorise M Naquin Lucy Nguyen Naquin and Grantly LLC Stuart H Smith Michael G Stag New Orleans LQUisiana Robert S Reich Caunsel for Defendant 1 st Appellant Michael T Bollinger Shipyards Inc Wawrzycki Metairie Louisiana BEFORE WHIPPLE KLJHN GUIDRY GAIDRY AND McCLENDON JJ Gr c c n t Ll1 i u N v Il e AGZ S 2 y y v p d1 G X t e n p 1 r o to 2 n a GUIDRY J lessors Plaintiffs Lorise l and Lucy Nguy Naquin and Grantly LLC I n collectively the Naquins appeal that po of the trial court judgment that tion s sustained a perexnptory excepti raising the objection of prescription a dismissed n ad their claims for damages ex delicto arising aut of fiv of six l they have with ases defendant Bollinger Shipyards Inc Bollinger Bollinger appeals that portion of the trial court judgment that overruled its dilatory exception raising the objection s of prematurity For the reasons that follow we af the trial court ruling on the rm s exception of prescription and we convert Bollinger appeal to a writ and deny the s writ FACTUAL AND PROCEDURA BACKGROUND L It is undisputed that the Naquins are owners of real property located in Lafaurche Parish just west of Larose Louisiana Pursuant tQ a series of six leases entered into by both the parties and their predecessor interests Bollinger has used I I the Na quins P roP ert Y for shipyard operations Three of the leases were entered into by the parties on May 24 1990 including Leases 1 and B The other three leases were entered into prior to that time Of the six leases four are for property located on the banks of the Intracoastal Watexw the Intracoastal Waterway eases y Leases A and B are adjacent to one another with Lease A located primarily northwest and west of Lease B These two leases are comprised exclusively of interior real property On April 2005 the Naquins filed this lawsuit seeking damages for disbursement and deposits of iead asbestos petroleum and other toxic polluting carcinogenic and no chemicals and substances toxic substances by Bollinger ious on the property that the Naquins had leased to the shipyard They alleged that the 2 S tal U Environme Protection Agency had r property and located vestigated the toxic substances and that Bollinger concealment of intentionally depos and ted buried toxic substances was in bad faith They sought campensatory and punitive damages as well as rescission and the lease n Naveinber 29 2005 inatioa t rn o Bollinger answered the lawsuit gerae denyAng t al and asserting that ally ae egations the Naquins claims were time barred After answering a subsequent amendment by the Naquins to their petition Bollinger filed among other things a di exception of prematurity and a atory peremptory exception raising the objection af pxescrbption After a hearing the trial court sustained both exceptions but provided the Naquins an opportunity to amend their petition A second amending petition was filed by the Naquins to which Bollinger again raised objections of prescription and p After another hearing the ematurity trial court again sustained th exception of prescription and dismissed all of the Naquins tort claims except those relating to the property subject to Lease B However the trial cQUrt over the xception o prematurity A judgment s ruled gned on April 11 2011 was certified as final by the trial eouxt The Naquins appeal the dismissal of five of their six tort claims as pr and Bollinger appeals the d rib s overruling of its exception ofpr rity mat EXCEPTI4N OF PRESCRIPT ON Initially we note that the trial court only dismissed the Naquins tort claims Thus it is undisput dthat they may proceed for damages ex conrrQCtu under their leases See La C art 2687 and Marin v Exxon Mobil Corp 09 La 236 19 10 48 So 3d 234 239 and 255 see also Onstott v Certified Capital 56 2548 Corp OS La App lst Cir 06 3 11 950 So 2d 744 747 a set of 3 circumstances can giv rise to mox than one cause of action and each of those causes has its own prescriptive period and Gallant Investments Ltd v Illinois Cent R Co 0 La p 1st Cir 2 7 So 3d 12 17 the nature of 1404 0 13 the duty breach deternnines wh th a bs an t or in co the classic d her tioa ort tract distinction between damages ex contractu nd damages ex delicto is that the form r flow from the breach of a special obligatior contractua assumed by the obligor ly wherea5 the latter flow rom the violation ofa gen duty owed to a11 persons ral In reviewing a peremptory exception raising the objection of prescription appellate courts strictly construe the statutes against prescription and in favor ofthe claim that is said to be extinguished Onstott 9S0 So 2d at 747 When evidence is received on the trial of th peremptory exception the factual conclusions of the trial court are reviewed by the appellate court under the traditional rules governing appellate review of facts As such a trial court factual determinations regarding s prescription should not be reversed in the absence of manifest error Onstott 950 So 2d at 746 Stobart v State throa a Tramsp and Dev 617 So 2d 880 t pf 882 La 1993 In this case although evidence was adduced at the hearing no testimony was presented The evidence consisted of the entire record including the original and the amending petitions as well as the environmental reports that Bollinger had supplied to the Naquins The last environmental report was dated June 19 2000 Delictual actions are subject to a liberative prescription of ane year and for damage caused ta immovable property the one prescription commences to run year Chain of title supportirzg the Naquins right to bring these claims involving the leases was also admitted but is ofno relevancy to the disposition of this appeal 4 from the day the owner of the immovable acquired or should have acquired knowledg of the damage See La C arts 3492 3 Marin 48 So 3d at 244 93 Based on the evidence admitted the r supports a finding that the i cor Naquins had in their possession an environme talreport d une l9 2000 But ted that finding would not explain haw Yhe 1 to claims we timely on April 8 Taquins t re 2005 because ifthey knew or should have l owri ofhe damage to their praperty by Jun 19 2000 their tort claims would have prescribf dby June 19 2001 Thus on th face of the petition the matter was untimely If we were to apply the manifest error standard of review the tria court conclusion that the tort claims relating to s Lease B were not prescribed would therefore be manifestly erroneous Bollinger does not challenge the trial court conclusion that the Lease B tort claims were s timely asserted because a review of the record shows that it has conceded it did not provide the environmental records to the Naquins until July 21 2005 which was over three months after the lawsuit was filed Based on our review of the record it is euid that the heart of this dispute nt centers around interpretatior of the allegations cont ir the Naquins original ined petition The evidence admitted at the heariz this matter how simply do gof ver s not allow any factual findings that resolve the issue presented in this appeal i e whether the original petition timely interrupted the N claims arising out of all quins six leases they hav with Bollinger In the absen of evidence the objection of e prescription must be decided upon the properly pleaded material allegations of fact alleged in the petition and those alleged facts are accepted as true Onstott 950 So 2d at 747 Thus we turn our attention to the allegations contained in the petition In their April 8 2005 petition the Naquins sf forth the following relevant t allegations 5 zv THE PROPERTY INVOLVED Petitioners are the owners of certain xeal property on the banks of the Intracoastal Waterway just to the West of Laxose Louisiana which property is operated as a shipyard by Bollinger The property is locat din Lafourche Parish V LEASE For many years prior to 1990 Petitioners predecessor in title leased to and on th 24th day of May 1990 Bollinger leased from the Naquins the property involved in this matt said property r described above The lease was recorded in the records of the Parish of Lafourche on May 31 1990 in Conveyance Book 1080 Folio 280 Entry No 712528 In their first amending petition filed on April 8 2010 the Naquins modified among other things paragraph V renaming it LEASES emphasis added articulating in specificity that the property onsists of six leases and particularly describing each of the six leases The second amended petition did not aver additional facts but instead added additional legal theories and conclusions The party urging a peremptory exception raising the objection ofprescription bears the burden of proof Only if pr is evident from the face of the scription pleadings will the plaintiff bear the burden of showing an action has not prescribed Onstott 9S0 So 2d at 747 We find nothing in the original petition that sets forth facts sufficient to establish the date that the Naquins acquired or should have acquired knowledge of the damage caused by ollinger Thus Bollinger bore the burden of proof Conceding that on July 21 2405 it gave the Naquins a11 of the environmental reports in its possession Bollinger asserts that the tort claims arising Z The record contains a copy afa letter sent from Bollinger to the Naquins 6 I out of the five more ally speci described leases se forth in the amending petition prescribed no later than July 21 2006 one year from the date that the Naquins knew or should have known of the dan to their property as a result of any age disbursements and deposits of tc subs intentionally rr nd concealed xi ances ade from them by Bollinger Thus t maintains that on the tort claim rel to Lease y ted B which was the Iease recorded in the record o the Parish f L on May afourche 31 1990 in Conveyance Book 1080 Folio 280 Entry No 712528 as stated in the original petition was not untimely We agree As set forth in Marin in determining whether an owner of immovable property acquired or should have acquired knowledge of the damage sufficient to start the running of prescription the question is whether knowledge of these facts constitutes the acquisition of sufficient informatio which if pursued will lead to n the true condition of things Put another way should th knowledge of these facts have put the plaintiffs on notice that further inquiry and investigation was necessary and would further inquiry have led to knowledge that the land was contaminated IVlarin 4 So 3d at 248 From our review of the record the Naquins clearly had such notice when they received the environmental reports from Bollinger and on July 21 2005 amending petition filed dingly Acco he claims asserted in the supplemental ora April 201Q and we11 after the expiration of the year one prescryptive p are clearly prescribed riod The Naquins assert however that the claims raised in the supplemental and amending petition are nevertheless timely because they relate back to the date of the timely filed oariginal petition Louisiana Code of Civil Procedure ar 1153 icle provides that w the action or defense asserted in the amended petition or hen answer arises out of the conduct transaction or occurrence set forth or attempted 7 to be set forth in the origi pl nai dia gthe ar ntrelates back to the date of dm e filing the original pleading Pursuant to this Article if comparison of the i amended petition to the origina tition shows that the origbnal petition gave fair notice of the factual situatiora ut of o the amended petition a the vhich ises amended petition v relate bac ta the date oz he filing of the oxigina petition ill Reese v State Department of Public Safet anci Corrections y 1615 03 La 04 20 2 66 So 2d 244 248 Giroir v South Louisiana Me Center 475 So dical 2d 1040 La 1985 Fram aur review of the record we find no error in the trial court finding s that the claims asserted in the supplemental and amending petition do not relate back to the date of th timely filed original petition As detailed above the original petition states in paragraph four that p are the owners of etitioners certain real property on the banks Qf the Yntracoastal Waterway just to the West of Larose Louisiana which property is operated as a shipyard by Bollinger The subsequent paragraph howev particularly describes only r the Naquins Lease B Contrary to assertion these paragraphs do not create an incansistency or ambiguity The shipyard operation referenced in paragraph four which consists of multiple parcels of land including the land subject to Lease B is located on th Intracoastal Waterway However th allegation yn the subsequent paragraph indicates that the Naquins a only seeking damages for the land subject to Lease e B Because the original petition specifically details only the land subject to Lease B and do not discuss the other five separate leases or parcels of land Bollinger s did not have fair notice of the clairns raised in the amended petition as to the separate leases and parcels of property Accord we find no error in the trial ngly s court deteranination that the claims asserted in the amend pet do not arise d tion 8 out of the same transaction or occur so as to relate back to the date of the timely filed original petition and therefore are pr scribed EXCEPTION OF PREMAT URITY Bollinger asserts that the trial court e ii overruling its exc of red ption prematurity with regard to the Naquins contractu c A the denial of a l laims lthough dilatory exception raising the objection of prematurity is interlocutory and not immediately appealable the trial court certified the judgment as final However the trial court denial of the exception of prematurity is not susceptible to being s certified as final for purposes of immediate appeal under La C article 1915 P Under La C article 2083 an intjud is appealable only when P rlacutory ment expressly provid by 1aw but in the interests ofjudicial economy we will convert d the appeal to a writ and under our supervisory jurisdiction address the trial court s ruling The gist of Bollinger assertion is that aecause the leases have not s terminated and Bollinger is continuing to use the property as a shipyard as specifi d in the lease provision the Naquins c sue for d tc their property at this nnot mages time The dilatory exception of prematurity que whether the cause of action s tio has matured to the Has point where it is xipe Serv Dist No 1 of Jefferson for judicial 0451 04 La determination Williamson v 04 1 2 8 So 2d 782 785 An actian is premature when it is brought before the right to enforce it has accrued La C art 423 Williamson 8 So 2d at 785 P In the instant case the Naquins assert that Boll inger breached he l by not ase using the premises as a prudent administrator in accordanc with the purposes for 3 sfailure to appeal the trial court April I1 20 0 rulin granting the exception of Bollinger s prematurity and allowing the Naquins leave to amend prechides review af the propriety of the amendment 9 which it was leased hazardaus substances y Particular the Naquin assert that Bol deposited inger on the leas d premi5es Accordingly the Iaquins s ek rescission and canc of the lease and compensatory damages adequate to llation restore the premises to the condition existing rio to the ease ouisiana LCivil Cade article 2686 provides at i th lessee uses he thing for a purpose other f than that for which it was leased ar in a rr that may ause dama to the thing anner the lessor may obtain injunctive relief dissolution of the lease and any damages he may have sustained The Louisiaaia Supreme Court held in Marin that although La C art 2683 contains oblig that only arise at the end o the lease ireturn tions e of the thing at the end of th lease in a condition that is the same as it was when the thing was delievered there is no language to suggest that the other obligations imposed by these codal provisions are not operational until termination of the lease These provisions i La GC arts 2686 2687 2692 continue throughout the term e of the lease and a lessor need not wait until the end of the lease to sue a lessee for damage to his property Marin 48 So 3d at 25 herefore be the Naquins ause allegations in their petition do not arise from Bollinger obligation to restore th s land on which the operations are ongoing but aris from La C art 26 the 6 Naquins did not have to wait until the l expired to bring their contractual claim ase Accordingly the trial court correctly overruled Bollinger exception raising the s obj ection ofprematurity DECREE For these reasons we affirm that portion of the trial court sjudgment which sustains s Bollinger exception of prescription and dismisses the tort claims involving the property related to the additional five leases Because we find no error in the trial co denial of the exception of prematurity as to the Naquins s ut lp ual ct contra claigns havin co Bol apapeal tv a under our ed ge ver i rit supervisory r pow we y der the w it ppeal sts Ic are assessed equally to the parties AFFIRMEI D r lZ AI N D APP C T ED DEN 11 I RI AND WRIT LORISE M FIRST CIRCUIT NAQUIN AND AND LUCY NGUYEN NAQiTIN AND GRANTLY LLC COURT OF APPEAL VERSUS E STAT fJF LOUISIANA INC BOLLINGER SHIPYARDS FURMERLY BOLLINGEl2 MAC HINE SHOP AND NO 2011 C 1 1217 SHIPYARD iNC KLTHN J dissenting in part S I disagree with the majority affirmance of the trial court ruling on the s s exception of prescription As the majority correctly notes in reviewing a peremptory exception raising the objection of prescription this court is required to strictly construe statutes against prescription nd find in favor of maintaining a claim See Onstott v Certzfzed Capital Corp 200 La App lst Cir 11 950 254 Ofi 3 2d So 744 747 I believe the trial ourt and novy this ourt on appeal has erred in its aretation inter of the petition and therefore turned a blind eye t the requirement that o we strictly construe prescriptioz statut s Careful observation of the map attached to the second amending petition shows the location ofeach of the leased properties As n by the majority faur of ted the leases are adjoining property on the banks of t41e Intracoastal Watez The specific property descriptions of these faur leases describe their respective locations by reference to the Intracoastal Waterway All the property subject to the six leases is in close proximity The property of abutting Leases A and B is southwest of the adjoining Intracoastal Waterway Leases and is separated from the remaining four leases by a strip that is approximately 312 feet at its narrowe point and 775 feet at t its widest 1 Leases A and B on caf ih Intrace Waterway Leases are dated May and astal 24 1990 The remair Intracoastal V4 L are dat March 11 1977 ing aterwa ases d June 29 1977 and January 11 197 Thus Leases A and B do not conform to the allegations of the Naquins petat ihat t were eases included within on ndicat n ose k the description of their ownership i cert re property on the banks of the e in l Intracoastal Additionally the majority has failed to include in its Waterway analysis the allegations af paragraph VII which state tha Bollinger has continuously operated the p as a lessee xn possession and has operated the emises shipyard property as confonm to that a for in description excess set of twen y orth in years paragraph VII Leases A and B do not Bollinger did not f le an exception o vagueness to cl these references to the description of the property rify And the Naquins did nothing to clarify the inconsistencies in the allegations oftheir original petition until Apri18 2010 A review of the record stablishes that at the earliest on Ju1y 21 2005 when Bollinger provided the environmental reports the Naquins had actual knowledge of the damages on the leased property Thus prescription on the Naquins tort claims commenced on that date and accrued on July 21 2006 On that date the allegations of fact set forth in the original lawsuit rema as the basis for the lawsuit nec The purpose of a prescription sttd is to afford a defendan economic and tute psychological secwrity if a cause of action is not pleaded timely and to protect the defendant from stale claims and the loss of relevant proof A prescription statute is designed to protect the defendant against lack ofnatification of a formal claim within the prescriptive period not against pleading mistakes that the defendant opponent s makes in filing the formal claim within the period TerreC v Per 96 La kzns 2629 App 1 st Cir 11 7704 So 3 S 3 8 97 2d 2 Bollinger who was in actual possessiora af the leases knew that unlike Lease B which was scribed dwith specificitv the r oth leases exaept Lease A were on the banks of the Intracoastal Waterwaye Ar ollxr knew that the property of all d ger of the leases was used in its oas a shipyard Th Bollinger was aware that rations a the a of p V and I wer e ncoa or efe more legations ragraph tsAStent encing than simply e Lea B n raph Read r I and V in l tlh facts to which ght af Bollinger was aware and mindfial Qf the close geograpk proximity of the leased ic parcels bo to one another and to the Intracoastal Waterway as well as the fact that h all of the leased property was used to conduct Bollin shipyard operations the s er Naquins petition put Bollinger on notice that all the leases were the property invalved in this matter It is vident that the Naquins filed their petition in an effort to make a formal claim within the delictual prescriptive period and that the ambiguities and inconsistencies in their dof the property were merely iption esc mistakes in pleading Bolling pportunity to see clarity ir the allegations was s r waived when it filed its ans ov year lat ver ra rwithout rais a dilatory objection tg of vagueness See La C arts 926 a 92 see also Uanderbrook v Jean P rxd 1975 2006 La App lst Cir 2 959 Su 65 96 the purpose of the 07 14 2d objectian of vagueness is to p1aGe the def x notice of the natu of the facts ndant sought to be proved so as to enable him to identify the cause caf action it must be pleaded prior to or in the answ it is waived ror Thus because the Naquins timely interrupted prescription with the filing of their petition for damages on April 8 2005 the subsequent amendments filed ora Apri18 2010 and September 10 2010 which merely clarified the o allegations iginal asserted in th original pleading arose out of th same transaction and occurrence and therefore related back to the April 8 2005 tition p See La C art 1153 P when the action or defense asserted in the amended petition or answer arises out of 3 the conduct transaction or occurr set for attempted to be set forth in the ce lor original pleading the amendmen relat back to the date of filing the original s pleading see also Scott v Haley 632 So 793 794 La App 1 st Cir 1993 2d 95 an am af the petitiun is perrrbitted despix technical prescriptive bars where ndment the original pleading gives fair nutice of the ge fact situation out of which the ral amended claim arises and where there is som factual connexity between the original and amended assertions together with some identity of interest between the parties amendment should be allowed For these reasons although I believe that the majority correctly affirmed the trial court conclusion that the tort claim rto the Lease B properiy was timely s lated asserted I believe it erred in affirming the trial court action af sustaining the s exception of prescription and dismissix gthe tort claims related to the property of the remaining leases I would reverse that portion of the judgment that sustains the exception ofprescription and dismisses all of the Nayuins other tort claims I concur with the majority disposition converting the appeal of the trial s s court action of overruling of the exception of pr insofar as the Naquins maturity contractual claims and would likewise deny the writ 4
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