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PHILIP BELL, FRANKLIN                                                       *                    NO. 2008-CA-0279
MERCANTILE, IIII, INC. AND
FIRST FRANKLIN COMPANY,                                                     *                    COURT OF APPEAL
INC.
*                                                                           FOURTH CIRCUIT
VERSUS
*                                                                           STATE OF LOUISIANA
CHARLES G. GLASER
*
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2005-10240, DIVISION “K-5”
Honorable Herbert Cade, Judge
Charles R. Jones
Judge
(Court composed of Judge Charles R. Jones, Judge James F. McKay, III, and
Judge Dennis R. Bagneris, Sr.)
Kearney S. Loughlin
6030 Prytania Street
New Orleans, LA 70118
COUNSEL FOR PLAINTIFFS/APPELLANTS
J. Don Kelly, Jr.
PROVOSTY & GANKENDORFF, L.L.C.
650 Poydras Street, Suite 2700
New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED




The Appellant, Philip Bell, seeks review of the district court’s judgment in
favor of the Appellee, Dr. Charles Glaser, sustaining his exception of prescription.
We affirm.
On February  19,  1993, Mr. Bell entered into a sublease for commercial
property with Dr. Glaser for a Mail Boxes, Etc. franchise at 630 South Carrollton
Avenue in Orleans Parish.   The owner of the building was Slatten Realty Company
(hereinafter referred to as “Slatten”), which leased the building to Dr. Glaser for a
period of 15 years: April 1, 1985 through March 31, 2000. The original sublease to
Mr. Bell was for the term of March 1, 1993 to March 1, 1994, with two options to
extend for either a three year period or another year.
The Primary Lease terms between Slatten and Dr. Glaser regarding roof
repair were:
…Lessee assumes responsibility for the condition
of the premises and Lessor will not be responsible for
damage caused by leaks in the roof, by bursting pipes, by
freezing or otherwise, or by any vice or defects of the
leased property, or the consequences thereof except in the
case of positive neglect or failure to take action toward
the  remedying  of  such  defects  within  reasonable  time
after having received written notice from Lessee of such
defects and the damage caused thereby. Should Lessee
fail to promptly notify Lessor, in writing of any such
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defects, Lessee will become responsible for any damage
resulting to Lessor or other parties. [Emphasis added.]
The addendum to the Primary Lease regarding roof repairs and the
sublease provides:
(1) Lessee   agrees   to   do   all   interior   and   exterior
renovations  and  improvements  at  his  own  expense
except for roof repairs.
(2) Lessee agrees to maintain all leased areas set forth in
this lease, both interior and exterior, excluding roof
maintenance and repairs.
(3) Lessee to be granted the right to sublease, but will
remain liable for lease if sub-lessee becomes unable to
pay his rent. [Emphasis Added].
Lastly, the sublease terms between Dr. Glaser and Mr. Bell states in
pertinent part:
7.  This is a sublease of the above-described property,
covered by primary lease from April  1,  1985 through
March 31, 2000, dated March 26, 1985, a copy of which
is attached hereto, and all of the terms and provisions of
said  primary  lease  are  incorporated  in  and  shall  be
considered a part of this sublease to the extent applicable
and where not inconsistent with the terms and provisions
of this sublease, except that sublessee’s rights or renewal
shall  be  specified  in  Paragraph                                    8  of  this  sublease.
[Emphasis Added].
8(d). Sublessee shall have the right, with one hundred
twenty (120) days prior to written notice, to extend this
lease for an additional 2 terms: commencing immediately
upon the expiration of the primary term and first option
provided above and ending March  31,  2000, upon the
same terms and conditions, including rental increase on
the same schedule as during the primary term. The [sic]
first option period is a term of three years and the [sic]
second option period ends March  31,  2000.  [Emphasis
Added].
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Mr. Bell extended the lease for an additional three (3) years through March
1, 1997.   He had the only Mail Boxes, Etc. franchise in the area from Birmingham,
Alabama to Houston, Texas. Since Mr. Bell had an exclusive franchise, he had the
right to share in the royalties of all franchises in the area so long as he provided a
training center (which he provided) at the Carrollton location.
In the fall of 1994, after extending the lease through 1997, Mr. Bell noticed
water intrusion in the ceiling in the rear bathroom portion of the building. In
November 1994, a water leak appeared again. This time the leak occurred in the
administrative offices of the building causing damage to the carpet, countertops
and desks. One month later in December  1994, more water leaking occurred,
causing damage to the mid-section of the building, carpet, countertops, and desks.
In  February                                                                               1995,  water  began  leaking  from  the  ceiling  again  through  light
fixtures. Due to the ongoing leaking, Mr. Bell sent a letter on March 10, 1995,
describing the damages suffered and the costs of repairs already undertaken. The
letter noted damages to copy equipment, cabinets, etc. A total of  $8,053.86 in
damages was sought.
On April 28, 1995, Mr. Bell sent a second letter to Dr. Glaser giving him
notice that he was going to terminate his lease effective May 30, 1995.   On May 9,
1995, the business again experienced flooding from the roof. This time the damage
was widespread, and led Mr. Bell to write another letter to Dr. Glaser that same
month.  In  addition  to  major  problems,  the  letter  noted  that  the  building  was
uninhabitable for the purpose for which it was leased. It follows that as of May 30,
1995, the lease was cancelled at Mr. Bell’s request and all contractual relations
between  both  parties  ceased.  Subsequently,  Mr.  Bell  brought  suit  against  Dr.
Glaser in 1999; however, the suit was legally abandoned.
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On July 29, 2005, Mr. Bell filed another suit against Dr. Glaser, this one for
breach of the sublease and to recover damages. Dr. Glaser filed an Exception of
Prescription arguing that Mr. Bell’s claims accrued greater than ten years earlier.
The district court granted the exception of prescription, and this timely appeal
followed.
Mr. Bell argues on appeal that the district court erred in sustaining Dr.
Glaser’s exception of prescription and dismissing his suit.
An appellate court cannot disturb the factual findings of the district court in
the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State,
Through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La. 1993). However when
a trial court commits legal error, an appellate court is required to review the record
de novo. Edwards v. Pierre, 08-0177 (La. App. 4 Cir. 9/17/08), 994 So.2d 648,
656.   Prescription is a purely factual determination. Thus, the standard of review
on an exception to prescription is manifest error. Katz v. Allstate Ins. Co., 2004-
1133 (La. App. 4 Cir. 2/2/05), 917 So.2d 443; Parker v. B & K Const. Co., Inc.,
2006-1465 (La. App. 4 Cir. 6/27/07), 962 So.2d 484.
In his lone assignment of error, Mr. Bell alleges that the prescriptive period
did not begin to run until August 1995, at the termination of the sublease and when
he permanently moved out of the building.   He asserts that the ongoing physical
damages and consequential economic damages caused by defects in the leased
premises are within the ten year prescription period; therefore, the prescriptive
period for any of the more recent damages has not run. He also asserts that the
ongoing  damages  should  be  treated  similarly  to  a  continuing  tort  where
prescription does not begin until the damage-causing conduct ends.
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Prescription begins to run when it is determined that damage was sustained.
Landry v. Blaise Inc., 2002-0822, p. 4 (La. App. 4 Cir. 10/23/02), 829 So. 2d 661,
664. Damage is sustained for the purposes of prescription when it has manifested
itself with sufficient certainty to support the accrual of a cause of action. Id., p. 5,
829 So.2d at 665; Hazelwood Farm Inc. v. Liberty Oil and Gas Corp., 2002-266
(La. App. 3 Cir. 4/2/03), 844 So.2d 380, 389. Where a claimant has suffered some
but not all damages, prescription runs from the day on which he suffered actual and
appreciable damages even though he may thereafter realize more precise damages.
Hazelwood, at 389; Harvey v. Dixie Graphics, Inc., (La. 1/17/92), 593 So.2d 351,
354. Thus, even where there are ongoing damages, prescription does not run from
each incident of damages; rather, it runs from the day that actual and appreciable
damages were noticed or suffered by the claimant.
Our review of the record indicates that Mr. Bell had first-hand knowledge of
actual and appreciable damages as early as the fall 1994, and undoubtedly by May
1995.  His  letter  to  Dr.  Glaser  in  May                                               1995,  noting  that  the  building  was
uninhabitable for the purpose for which it was leased along with the widespread
damage from the flooding of the roof, provided notice of actual physical and
appreciable damages. Prescription began to toll from May 1995. Since Mr. Bell did
not file suit within the requisite prescription period of ten years, his cause of action
prescribed. Therefore, we find that this assignment of error is without merit.
DECREE
For the foregoing reasons, the judgment of the district court granting the
Exception of Prescription in favor of Dr. Charles Glaser is affirmed.
AFFIRMED
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