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CHEF MENTEUR LAND COMPANY, LTD. VERSUS

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NO. 2011-CA-0497

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

GARY SANDROCK, ET AL.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2004-5044, DIVISION "E-7" Honorable Madeleine Landrieu, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Patricia Rivet Murray, Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome)

Robert A. Barnett GUSTE BARNETT SCHLESINGER HENDERSON & ALPAUGH, L.L.P. 639 Loyola Avenue Suite 2500, Entergy Corporation Building New Orleans, LA 70113-7103

COUNSEL FOR PLAINTIFF/APPELLEE

Ian E. Goldenberg IAN E. GOLDENBERG, L.L.C. 650 Poydras Street Suite 1400 New Orleans, LA 70130--6101

COUNSEL FOR DEFENDANT/APPELLANT, EUGENE MOLINARY, JR.

REVERSED IN PART AND RENDERED

Defendant-Appellant, Eugene Molinary, appeals the judgment casting damages against him where neither he nor his attorney was present at trial. Appellant further requests review of the judgment awarding damages against him despite the trial court's finding that all claims against him had prescribed. We find that the record does not evidence that Appellant received adequate notice of trial. We further find that it is unnecessary to remand for a new trial, as Plaintiff's claims against Mr. Molinary are prescribed. FACTS AND PROCEDURAL HISTORY Plaintiff-Appellee, Chef Menteur Land Company, Ltd. ("Chef Menteur"), owns a piece of immovable property in Orleans Parish near Chef Menteur Highway. Both landowners and lessees have utilized this property for fishing and outdoor activities. On May 8, 1996, Gary Sandrock signed a one-year lease with Chef Menteur for use of a parcel of land, upon which he built two camps, one at the far end of the property over the waterway. The lease was renewed by Gary Sandrock in 1997 and 1998. In 1999, Gary's brother, Glenn Sandrock, became the lessee. From 1999 through 2002, Glenn Sandrock executed the lease.

Prior to the execution of the 2002 lease, asbestos containing materials1 were dumped onto the leased property by Appellant Eugene Molinary, a violation of Louisiana Department of Environmental Quality ("LDEQ") regulations. Notably, the 2002 lease contained an additional provision with regard to the lessee's responsibility to remove the asbestos containing material from the property.2 The asbestos-containing material was not removed, and on April 21, 2003, the LDEQ served a compliance order on Chef Menteur, ordering removal of the asbestoscontaining materials. Chef Menteur complied with the order and brought suit on April 5, 2004, seeking compensation for the costs of removing the asbestoscontaining material from Appellant, Gary Sandrock, and Glenn Sandrock. On June 23, 2004, Appellant filed exceptions of vagueness, ambiguity of the petition, prescription, and no cause of action. The exceptions came for hearing on December 17, 2004, and the trial court issued a judgment denying the exceptions on December 23, 2004. On February 16, 2005, Appellant filed an answer to Appellee's petition for damages, and the Sandrocks filed a cross-claim against Appellant. Molinary answered the cross-claim on February 28, 2005. On August 29, 2005, Hurricane Katrina struck the Louisiana coast. On December 30, 2008, Appellee filed a supplemental and amending petition.

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The asbestos containing materials consisted of roofing materials such as roofing slate, bricks and cement. Appellant asserts that trespassers and other people had also been dumping materials in the area. Stephen Vignes, a project manager for Insulation Technologies, Inc., the company that performed the asbestos remediation, testified at trial that during his inspection of the property, he observed the presence of asbestos roof shingles both on land and in the water. William Scott, accepted by the court as an expert in hazardous and toxic material management, testified that such materials are regulated by the LDEQ as both Category I and Category II non-friable regulated asbestoscontaining materials; accordingly, the LDEQ regulations mandate that Category II materials must be disposed of in a LDEQ approved disposal facility and cannot be handled as construction debris. See also La. Admin Code. tit. 33, pt. III,

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