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GUILLERMO LOPEZ HUSBAND OF AND DEMETRIA ARANA LOPEZ VERSUS HOUSE OF FAITH NONDENOMINATION MINISTRIES

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NO. 2009-CA-1147

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

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-15594, DIVISION "J-13" Honorable Nadine M. Ramsey, Judge ****** Judge Terri F. Love ****** (Court composed of Judge James F. McKay, III, Judge Terri F. Love, Judge David S. Gorbaty)

Robert C. Evans EVANS & COMPANY 629 Cherokee Street New Orleans, LA 70118

COUNSEL FOR PLAINTIFF/APPELLANT

Brandon J. Frank 643 Magazine Street Suite 300 New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED January 13, 2010

Plaintiffs, Guillermo and Demetria Lopez, appeal the trial court's judgment granting an exception of prescription in favor of defendant, House of Faith NonDenominational Ministries ("House of Faith"). We find that the prescriptive period did not commence until Defendant's building was demolished. We therefore reverse and remand. FACTUAL AND PROCECURAL HISTORY Guillermo and Demetria Lopez "(Plaintiffs") own a house at 1326-1328 Elysian Fields Avenue in New Orleans, Louisiana; House of Faith NonDenominational Ministries ("Defendant" or "House of Faith") owns a building on the adjacent property. Plaintiffs returned to New Orleans on January 3, 2006, following Hurricane Katrina. At that time, Plaintiffs discovered that defendant's building was damaged and leaning over their property line. Pastor Christina Ford, minister and director of House of Faith, also returned to New Orleans in early January of 2006 to find the building leaning. In March of 2006, Defendants filed an application for demolition of private property with the City of New Orleans. On May 22, 2006, the City issued a notification of intent to demolish defendant's building.

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Plaintiffs submit that sometime in the summer or fall of 2006, Defendant's building fell onto Plaintiffs' house. Defendant claims that the contact occurred on June 1, 2006. Defendant's building remained in contact with Plaintiffs' house until June 10, 2007, when it was demolished by the City of New Orleans. Plaintiffs filed the instant lawsuit on December 7, 2007. The petition alleges that Defendant failed to repair the defect that caused damage to their property and failed to exercise reasonable care to prevent damage to their property. More specifically, the petition asserts liability on the part of Defendant pursuant to La. C.C. art. 660, which requires a property owner "to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor...." The petition further alleges that Defendant is liable under La. C.C. art. 2322, which provides that "the owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it...." Defendant filed exceptions of prescription, no right of action, and no cause of action. In connection with the exception of prescription, Defendant asserts that the one year prescriptive period began to run on June 1, 2006, the date its building first made contact with Plaintiffs' house. Plaintiffs opposed the exception arguing: 1) they did not discover the full extent of the damage until defendant's building was demolished on June 10, 2007; and 2) Defendant's continued failure to repair and/or remove its building was a continuing tort which did not abate until the building was demolished. The trial court granted the exception of prescription and rendering moot the exceptions of no right and no cause of action, and Plaintiffs' appealed. EXCEPTION OF PRESCRIPTION

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On appeal, Plaintiffs argue that the trial court erred in granting the exception of prescription because the damage to their property was caused by a continuing tort. Plaintiffs further contend that the trial court erred in granting the exception even though the suit was filed less than one year after the damage occurred. La. C.C.P. art. 3492 provides that delictual actions are subject to a liberative prescription of one year, which commences to run from the date the injury or damage is sustained. As a general rule, the party pleading prescription bears the burden of proving the plaintiff's claim has prescribed; however, when a claim has prescribed on its face, the burden shifts to the plaintiff to demonstrate prescription was suspended or interrupted. In re Medical Review Panel for the Claim of Moses, 2000-2643, p. 6 (La. 5/25/01), 788 So.2d 1173, 1177. The first issue in the present case is whether it is evident on the face of the petition that Plaintiffs' claim has prescribed. A review of the petition shows that it alleges a continuous course of tortious activity on the part of Defendant. More specifically, it is asserted that Defendant failed to repair the defect that caused damage to Plaintiffs' property and failed to exercise reasonable care to prevent damage to Plaintiffs' property, which actions and ensuing damages continued until Defendant's building was demolished. Although the petition does not provide the date of the demolition, it is undisputed that the demolition took place on June 10, 2007. Because the petition adequately pleads continuous tort, the burden rests with Defendant. The continuing tort doctrine only applies when continuous conduct causes continuing damages. Bustamento v. Tucker, 607 So.2d 532, 542 (La. 1992). Where the cause of injury is a continuous one giving rise to successive damages,

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prescription does not begin to run until the conduct causing the damage is abated. South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La. 1982). In Crump v. Sabine River Authority, p. 7 (La. 1999), 737 So.2d 720, 726, the Supreme Court of Louisiana examined the theory of continuing tort as follows: As previously noted by this Court, the theory of continuing tort has its roots in property damage cases and requires that the operating cause of the injury be a continuous one which results in continuous damages. Bustamento v. Tucker, 607 So.2d 532, 543 n. 8 (La.1992); South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). Professor Yiannopoulos, in his treatise on Louisiana predial servitudes clarified this requirement as it relates to prescription as follows: [A] distinction is made between continuous and discontinuous causes of injury and resulting damage. When the operating cause of the injury is 'not a continuous one of daily occurrence', there is a multiplicity of causes of action and of corresponding prescriptive periods. Prescription is completed as to each injury, and the action is barred upon the lapse of one year from the date in which the plaintiff acquired, or should have acquired, knowledge of the damage....[This is to be distinguished from the situation where] the 'operating cause of the injury is a continuous one, giving rise to successive damages from day to day....' A.N. Yiannopoulos, Predial Servitudes,

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