Aertker et al v. Placid Holding Company et al
Filing
69
ORDER: denying 60 MOTION for Summary Judgment filed by Rosewood Refining, LLC, Placid Pipeline Company, LLC, Placid Holding Company. Signed by Judge Carl J. Barbier on 6/15/12. (SEK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
AERTKER ET AL
CIVIL ACTION
VERSUS
NO: 07-473
PLACID HOLDING COMPANY ET AL
SECTION: “J”(5)
ORDER AND REASONS
Before the Court are Defendants’ Motion for Summary Judgment
(Rec. Doc. 60), Plaintiffs’ opposition to same (Rec. Doc. 61),
and Defendants’ reply (Rec. Doc. 64).
The motion is set for
submission on June 6, 2012, on supporting memoranda and without
oral argument.
Having considered the motion, the legal
memoranda, the record, and the applicable law, the Court now
issues its ruling.
PROCEDURAL HISTORY AND BACKGROUND FACTS
In this civil action, Plaintiffs seek compensation for
profits from an eight-inch petroleum pipeline they claim to own
by accession.
Plaintiffs allege that the constructor of the
pipeline owes them compensation for the years 1981-2000, during
1
which time Defendants operated the pipeline.
In 1948,
Plaintiffs’ predecessor-in-title granted a 99-year timber lease
to Herbert Tannehill.
Tannehill assigned his interest in the
timber lease to Urania Lumber Co., ancestor-in-title to the
Louisiana-Pacific Corporation.
In 1981, the Louisiana Pacific
Corporation granted a right-of-way to defendant Placid Refining
Co. (individually, and/or collectively with other named
defendants, “Placid”) to allow same to run an eight-inch pipeline
across approximately 1¼ miles of Plaintiffs’ property.
Placid
constructed the pipeline and used it continuously until 2000,
when Placid transferred its interest in the pipeline and the
right-of-way to Central Louisiana Energy Pipeline Company, LLC
(“CLEPCO”).
In October of 2002, Plaintiff W. Patrick Aertker, Jr.
learned of the pipeline’s existence but assumed that the
right-of-way permitting its existence had been granted by his
father, Mr. Aertker, Sr.
In 2005, however, Plaintiff W. Patrick
Aertker, Jr. discovered what he perceived to be problems with the
grant of the right-of-way.
Plaintiffs proceeded to file the
instant lawsuit on October 6, 2007, contending that Placid is
indebted to them for the fair rental value of the pipeline from
the time it was constructed in 1981 until 2000, when Placid
2
conveyed the right-of-way to CLEPCO.
Plaintiffs estimate the
fair rental value to be based upon the number of barrels of oil
transported through the pipeline during the period of Placid’s
putative ownership of the right-of-way and pipeline.
In state
court, Plaintiffs settled their claims against CLEPCO, granting
CLEPCO a servitude of passage for the pipeline.
THE PARTIES’ ARGUMENTS
Placid’s motion for summary judgment re-urges an argument
for dismissal of Plaintiffs’ claims based upon the Louisiana law
of liberative prescription.1
Placid avers that it sold the
pipeline to CLEPCO on October 30, 2000, and thereafter, because
Placid performed no further acts with respect to the pipeline,
there existed no “continuing tort” that could have interrupted
the prescriptive period within which Plaintiffs were required to
sue.
Because, Placid argues, there was no interruption of the
prescriptive period under the continuing tort doctrine,
1
The Magistrate Judge who heard a prior motion for summary judgment
generally addressed the same arguments raised in the instant motion. She
recommended that the motion be denied (Rec. Doc. 31), and the District Judge
adopted the recommendation (Rec. Doc. 33). Placid acknowledges in its
memorandum in support of the instant motion that it is asking the Court to
reconsider the prior decision. See Rec. Doc. 60-1, at 5 (“The significance of
the sale to CLEPCO was not made sufficiently clear by the Placid Group in the
first motion. It was not the occurrence of the sale which supported the plea
of liberative prescription, but rather the effect of that sale. . . . Because
the issue was not fully addressed in the first motion, the Placid Group asks
that it’s [sic] motion be reconsidered.”).
3
Plaintiffs had one year from the date they acquired knowledge of
the damage to file suit.
Because Mr. Aertker, Jr. discovered the
existence of the pipeline and right-of-way on October 17, 2002,
more than one year prior to Plaintiffs’ filing of suit on October
6, 2007, Placid argues that Plaintiffs’ claims are barred by
liberative prescription.
In its initial memorandum, Placid devotes the majority of
its argument to an argument for why the doctrine of continuing
tort does not apply in this case.
Placid argues that more than
the mere presence of the pipeline on the property was required to
interrupt the prescriptive period.
Rather, it argues, any
allegedly wrongful conduct attributable to Placid terminated when
Placid conveyed the entire pipeline system to CLEPCO, at which
time Placid no longer had a right or a corresponding duty to
remove something that it no longer owned.
Placid argues that it
is the absence of wrongdoing after the date of sale that
prohibits an interruption of prescription during the time period
postdating the sale.
It argues that it did not commit any
wrongdoing within one year prior to the date on which Plaintiffs
filed suit, and therefore Plaintiffs’ claims are prescribed.
Additionally, Placid argues that even if it and CLEPCO were joint
tortfeasors, Plaintiffs’ compromise with CLEPCO did not interrupt
4
the prescriptive period as to Placid because CLEPCO’s conduct was
separate from Placid’s and because Plaintiffs’ claims against
Placid had prescribed prior to the confection of the compromise.
In their opposition memorandum, Plaintiffs initially purport
to clarify the nature of Placid’s motion, arguing that Placid
challenges only their cause of action sounding in tort, but not
their separate cause of action arising under the law of accession
to immovables.
Plaintiffs assert that the one-year liberative
prescriptive period applicable to the trespass claim is
inapplicable to the accession claim.
Instead, Plaintiffs argue,
the accession claim is a petitory or real cause of action, which
is not subject to liberative prescription.
Accordingly,
Plaintiffs argue that their accession claim is unaffected by
Placid’s motion.
With respect to the trespass claim, Plaintiffs
argue that the claim is not barred by prescription.
They argue
that the ongoing use of the pipeline by Placid, and subsequent
use by CLEPCO, as well as the unauthorized presence of the
pipeline on Plaintiffs’ land, constitutes a single, continuing
tort for which the prescriptive period did not commence until
CLEPCO entered into a compromise with Plaintiffs.
Because
Plaintiffs filed suit within a year from the date on which
prescription began to accrue, they argue that they brought their
5
trespass claim timely.
Accordingly, Plaintiffs argue that their
tort cause of action is not time-barred and their accession-toimmovables cause of action is not subject to liberative
prescription.
Thus, they request that the Court deny Placid’s
motion.
In its reply memorandum, Placid argues that the right of
accession is simply a component of the damages that Plaintiffs
seek, and therefore if the tort claim is time-barred, so is the
right to recover damages under the law of accession.
Specifically, Placid argues that accession is simply an incident
of ownership, and while it may be the subject of a real action,
it is not a petitory action—but rather a possessory action.
It
avers that Plaintiffs’ claim to accession is merely an element of
the trespass claim, which sounds in tort.
With respect to
Plaintiffs’ continuing tort argument, Placid argues that CLEPCO’s
use of the pipeline and the pipeline’s continued existence do not
have any effect on the claims against Placid.
Placid argues that
any action committed by CLEPCO after Placid sold the pipeline to
CLEPCO has no effect as to the claims against Placid because any
liability of Placid and CLEPCO is not solidary.
Therefore,
Placid argues that summary judgment should be granted in its
favor.
6
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”
Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
All
reasonable inferences are drawn in favor of the nonmoving party,
but a party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions.
1075.
Little, 37 F.3d at
A court ultimately must be satisfied that “a reasonable
jury could not return a verdict for the nonmoving party.”
Delta,
530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”
7
Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991) (citation omitted).
The nonmoving party can then
defeat the motion by either countering with sufficient evidence
of its own, or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.”
Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim.
See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists.
See id. at 324.
The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial.
See,
e.g., id. at 325; Little, 37 F.3d at 1075.
DISCUSSION
The ruling on Placid’s motion depends upon the resolution of
several issues.
First, there is the fact that the District Judge
previously decided the issue, although Placid avers that it
8
raises new arguments in the instant motion.
This is not an issue
that needs to be separately addressed, but to the extent it makes
the instant motion one for reconsideration, it necessitates a
higher burden for Placid to carry.2
Second, the Court must
identify the nature of the causes of action asserted in the
complaint.
Third, the Court must determine the applicable
prescriptive period with respect to each cause of action.
Fourth, the Court must determine whether those periods have
accrued, which includes consideration of whether the doctrine of
“continuing tort” assists Plaintiffs in demonstrating the
timeliness of their claims.
A.
Prescriptive Periods
1.
Causes of Action Asserted
The complaint alleges two causes of action.
The first is
styled “Petitory Action for Accession to Immovables.”
1, at 7.
Rec. Doc.
Plaintiffs aver that “[u]nder Louisiana law governing
accession in relation to immovables,” they have owned the
pipeline since it was placed upon their land, and therefore
Placid is indebted to them for the fair rental value of the
2
A motion for reconsideration is treated as a motion to alter or amend
under Rule 59(e). Bass v. U.S. Dep’t of Agric., 211 F.3d 959, 962 (5th Cir.
2000). “A motion to alter or amend the judgment under Rule 59(e) must clearly
establish either a manifest error of law or fact or must present newly
discovered evidence . . . .”. Schiller v. Physicians Resource Group Inc., 342
F.3d 563, 567 (5th Cir. 2003) (quotation marks omitted) (emphasis added).
9
pipeline based upon the number of barrels of oil transported
through the pipeline by Placid.
Rec. Doc. 1, at 8, ¶¶ 27-29.
The second cause of action is entitled “Continuing Tort.”
Doc. 1, at 8.
Rec.
The claim is phrased in the alternative to the
first cause of action, and it alleges that the construction and
maintenance of the pipeline across Plaintiffs’ land without their
consent constitutes a continuing tort of trespass, which
continued until Plaintiffs granted CLEPCO a conventional
servitude of passage.
Rec. Doc. 1, at 9, ¶¶ 31-32.
The
complaint alleges that to compensate them for this tort,
Plaintiffs are owed the profit of which they have been deprived,
which is equivalent to the pipeline’s fair rental value.
Rec.
Doc. 1, at 9, ¶ 34.
The second cause of action, for trespass, clearly sounds in
tort.
See Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge
Co., 2000-2754, p. 11 (La. App. 4th Cir. 11/14/01); 803 So. 2d
86, 95.
Placid argues that the first cause of action relating to
accession is actually an element of the damages that Plaintiffs
arguably could recover under the trespass cause of action.
Plaintiffs, on the other hand, argue that the accession claim
constitutes a real or petitory action that is imprescriptible.
10
Accession is an incident of ownership.
It permits an owner
to accede to the ownership of everything that the owned thing
produces or which is united with the owned thing.
art. 482.
LA. CIV. CODE
Buildings and other constructions permanently attached
to the ground made on the land of another without his consent
belong to the owner of the ground.
LA. CIV. CODE art. 493, ¶ 1.
Things incorporated in or attached to an immovable so as to
become its “component parts” belong to the owner of the
immovable.
LA. CIV. CODE art. 493.1.
Plaintiffs invoke the law
of accession by alleging that Placid constructed the pipeline
without Plaintiffs’ consent, and therefore the pipeline has
always belonged to Plaintiffs.
Therefore, accession is not a
cause of action, properly speaking, but a right that may be
afforded to the extent Plaintiffs can prove ownership of the
pipeline under the law of accession as an incident of the
ownership of the ground beneath it.
The issue, then, is the
proper classification of a cause of action for lost rent produced
by something owned by accession.
The Fifth Circuit in Songbyrd, Inc. v. Bearsville Records,
Inc., 104 F.3d 773 (5th Cir. 1997) squarely addressed the issue
of classification of a cause of action to enforce one’s right of
accession under Louisiana law.
In Songbyrd, the plaintiff sought
11
a judgment recognizing its ownership and awarding damages
concerning song recordings.
Id. at 775.
Although the district
court had concluded that the action had prescribed regardless of
its characterization as contractual, quasi-contractual, or tortbased, the Fifth Circuit disagreed.
It found that liberative
prescription did not bar the action for damages arising from
ownership because the action was a real action, which is not
subject to liberative prescription:
[A]ctions seeking recognition of ownership or
enforcement of the rights thereof, whether in movable
or immovable property, are not personal actions; they
are “real actions.” Such real actions, otherwise known
as “revindicatory actions,” are expressly authorized by
the Louisiana Civil Code. . . . Further, any
“incidental demand for damages made in an action for
the recovery of an immovable [or a movable] does not
affect the classification of the main demand as a real
action.”
Id. at 777 (citations and footnotes omitted).
The court then
stated that real actions seeking to protect the right of
ownership are not subject to liberative prescription.
778.
Id. at
However, the court noted that the plaintiff’s petition
sought recognition of ownership in the recordings, “and only
incidentally sought damages resulting from [the defendant’s]
contravention of [the plaintiff’s] alleged ownership interest.”
Id. at 779.
Accordingly, Songbyrd is distinguishable from the
instant case, in that Plaintiffs do not seek to be declared
12
owners of the pipeline.
They only seek recovery for damages for
the alleged violation of their right of accession, which is an
incident of their prior ownership of the pipeline prior to their
grant of a conventional servitude to CLEPCO.
Although Plaintiffs argue that their first cause of action
should be characterized as a petitory action, they do not seek a
declaration of ownership of a thing, such that they are entitled
to rights flowing from that ownership.
Plaintiffs claim that
they are entitled to lost rent for a specific period of time
during which they allege they formerly owned the pipeline.
admit that they sold the pipeline to CLEPCO.
They
Therefore,
Plaintiffs’ complaint seeks a declaration of ownership during a
prior relevant period of time, in order to establish their right
to fair rental value under the law of accession for that time
period.
See Rec. Doc. 1, at 8, ¶ 27 (“Under Louisiana law
governing accession in relation to immovables, the 8-inch
pipeline at all times pertinent hereto belonged to
complainants.”).
It is the manner in which Plaintiffs state their allegations
that determines whether their action is petitory, rather than the
label they attach to the allegations.
See In re Succession of
Comeaux, 2004-1335, p.4 (La. App. 3d Cir. 3/2/05); 896 So. 2d
13
1223, 1226 (“The allegations and prayer of the plaintiff’s
petition determine the true nature of the action and the
applicable prescriptive period.”).
Because the petitory action
requires a present claim of ownership, and Plaintiffs do not
allege that they currently own the land or the pipeline, the
Court is not persuaded that Plaintiffs’ first cause of action is
a petitory action.
See LA. CODE CIV. PROC. art. 3651 (“The
petitory action is one brought by a person who claims the
ownership . . . of immovable property or of a real right therein
. . . to obtain judgment recognizing the plaintiff’s
ownership.”).
Upon consideration of the arguments and authorities of
counsel for the parties, the label that correctly identifies
Plaintiffs’ putative cause of action related to accession remains
unclear.
The Fifth Circuit’s decision in Songbyrd was not
limited to petitory actions; the court stated that “real actions”
are not subject to liberative prescription.
104 F.3d at 778.
See also Trust for Melba Margaret Schwegmann v. Schwegmann Family
Trust, 09-968, p.12 (La. App. 5th Cir. 9/14/10); 51 So. 3d 737,
750 (innominate real action for recovery of movable property is
imprescriptible).
A real action is one in which a person seeks
recognition of ownership or enforcement of ownership rights.
14
Johnson v. Hardy, 98-CA-2282 (La. App. 1st Cir. 11/5/99); 756 So.
2d 328, 332 (“Actions seeking recognition of ownership or
enforcement of ownership rights, whether in movable or immovable
property are ‘real actions,’ not ‘personal actions.’”).
Therefore, in general, because a claim of accession to immovable
property is a claim to enforce ownership rights, it would be a
real action—an assertion of rights with respect to ownership in a
thing.
However, a real action abates when the defendant is no
longer in possession, as is the case with the instant action.
See Boykins v. Boykins, 2007-0542, p.5 (La. App. 4th Cir.
4/30/08); 984 So. 2d 181, 185 (“Such real actions, otherwise
known as ‘revendicatory actions,’ are expressly authorized by La.
C.C. art. 526 . . . . However, the revendicatory action abates
when the movable is no longer in the defendant’s possession.
Theoretically, a plaintiff may have a personal action for damages
or unjust enrichment against the former possessor of the
movable.”); Johnson, 756 So. 2d at 332 (same).
Because the instant motion is one for summary judgment,
Placid bears the burden of pointing out the absence of evidence
that Plaintiffs’ claims are not prescribed.
The legal authority
cited by Placid does not appear to support the proposition that
accession is an element of recovery in a trespass proceeding.
15
See Britt Builders, Inc. v. Brister, 618 So. 2d 899, 903 (La.
App. 1st Cir. 1993) (stating that a person injured by trespass
may recovery compensatory damages).
However, the Court need not
resolve that inquiry because Placid only argues that,
effectively, there is one cause of action in this case, which is
one for trespass.3
Therefore, the Court turns to the
prescriptive period applicable to trespass claims under Louisiana
law, to ascertain whether Placid carries its summary judgment
burden of proof that the trespass claim has prescribed.
2.
Applicable Prescriptive Period
“Liberative prescription is a mode of barring of actions as
a result of inaction for a period of time.”
3447.
LA. CIV. CODE art.
Tort actions are generally subject to a liberative
prescription of one year.
LA. CIV. CODE art. 3492.
Thus, the
cause of action for trespass is subject to a one-year
prescriptive period.
The triggering event that commences the
prescriptive period is important.
Under the general rule
applicable to torts, the one-year period begins to run from the
date of injury.
See LA. CIV. CODE art. 3492 (“[P]rescription
commences to run from the day injury or damage is sustained.”).
3
See Rec. Doc. 64, at 2 (“The right of accession is simply part of the
damages sought by the Plaintiffs as a result of the alleged tortious conduct
of Placid. If the tort claim is barred by liberative prescription, then all
elements of that claim, including the right of accession will also fall.”).
16
However, a special rule applies where there is tortious damage to
an immovable.
Article 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.”
LA. CIV. CODE art. 3493.
Trespass entails damage to land by a tort.
Boudreaux v.
Terrebonne Parish Police Jury, 422 So. 2d 1209, 1213 (La. App.
1st Cir. 1982).
Therefore, absent an exception, the prescriptive
period applicable to Plaintiffs’ trespass claim began to run when
Plaintiffs knew or should have known of the pipeline’s existence
and of its offending nature.
B.
Whether the Trespass Claim Is Barred by Liberative
Prescription
Turning to the facts of this case, Placid laid the
pipeline in 1981.
Plaintiff Mr. Aertker, Jr. did not discover
the existence of the pipeline and right-of-way until October 17,
2002.
It is unclear whether Plaintiffs knew or should have known
of the offending nature of the pipeline immediately upon
discovery of the right-of-way.
Also unclear is the earliest
moment at which Plaintiffs should have known that their
predecessor-in-title had not granted the right-of-way.
However,
the complaint states that “[i]n the Fall of 2005, W. Patrick
17
Aertker, Jr. discovered that no valid right-of-way agreement
existed for the 8-inch pipeline.”
Rec. Doc. 1, at 6, ¶ 18.
Therefore, by Fall of 2005, Plaintiffs knew or should have known
of the alleged trespass—and the resulting alleged damage to
property—within the contemplation of Article 3493.
Plaintiffs
filed suit more than one year later, on July 6, 2007, and as a
result, absent some further explanation, the trespass claim would
facially appear to be prescribed.
“The burden of proof on the
prescription issue lies with the party asserting it unless the
plaintiff’s claim is barred on its face, in which case the burden
shifts to the plaintiff.”
Mallett v. McNeal, 2005-2289 (La.
10/17/06); 939 So. 2d 1254, 1258.
Plaintiffs argue that the
trespass claim is not prescribed under the doctrine of
“continuing tort.”
The Louisiana Supreme Court has described a “continuing
tort” as one “occasioned by continual unlawful acts,” where there
is “a continuing duty owed to the plaintiff and a continuing
breach of that duty by the defendant.”
Crump v. Sabine River
Authority, 98-C-2326 (La. 6/29/99); 737 So. 2d 720, 728.
A
continuing tort does not exist merely because of the existence of
continuing damages; rather, there must be continuing unlawful
acts.
In re Med. Review Panel for Claim of Moses, 2000-2643, p.
18
16 (La. 5/25/01); 788 So. 2d 1173, 1183.
Plaintiffs argue that
Placid and CLEPCO owed a continuing duty to remove the offending
pipeline from Plaintiffs’ land, and that the continuing existence
of the pipeline on the land prevented the prescriptive period on
the trespass claim from beginning to accrue until Plaintiffs
granted a right-of-way to CLEPCO in 2007, which terminated the
offensive nature of the pipeline’s existence.
raises two issues:
The argument
(1) whether there was a continuing tort
attributable to Placid from 1981 until 2000 during the period of
Placid’s putative ownership of the pipeline; and (2) assuming
that the pipeline’s existence could constitute a continuing tort,
whether the pipeline’s continuing existence even after Placid
sold it in 2000 could delay the commencement of prescription as
to Placid as long as the pipeline remained on Plaintiffs’ land.
1.
Existence of Continuing Tort
The Magistrate Judge formerly addressed both of these issues
in her report and recommendation, which the District Judge
adopted in denying Placid’s prior motion for summary judgment.
With respect to the first issue, whether a continuing tort
existed, the Magistrate Judge cited to jurisprudence supporting a
finding that the pipeline’s continuing existence meets the
definition of continuing wrongful conduct attributable to Placid
19
that delayed the commencement of prescription.
at 29-31.
See Rec. Doc. 31,
The Magistrate Judge primarily relied upon Tujague v.
Atmos Energy Corp., 442 F. Supp. 2d 321, 323 (E.D. La. 2006).
The report and recommendation, which was adopted by the District
Judge, gave a thorough analysis of Tujague and the Louisiana
jurisprudence that it relied upon.
The District Judge at the
time, Chief Judge Ralph E. Tyson, approved the report and
recommendation and adopted it as the court’s opinion.
Rec. Doc.
33.
In Tujague, the court held that the defendant breached the
tort duty not to trespass through the placement of a pipeline and
debris upon the plaintiff’s property without the plaintiff’s
permission, and that the breach continued until those items were
removed.
442 F. Supp. 2d at 325.
Therefore, “[t]he trespass was
a continuing tort and did not cease, and prescription did not
begin to run, until the pipeline and debris were removed from
[the plaintiff’s] property.”
Id.
The court distinguished the
Louisiana Supreme Court’s decision in Crump, 737 So. 2d 720.
It
found the case of Cooper v. Louisiana Department of Public Works,
03-1074 (La. App. 3d Cir. 3/3/04); 870 So. 2d 315, on point.
In Crump, a third party had dug a canal on the defendant’s
property, such that the flow of water was diverted from its
20
original course and a portion of a bayou dried up.
As a result,
the plaintiff no longer had access to a lake from her property.
737 So. 2d at 722-23.
The plaintiff sued in negligence, and the
court found that the continued presence of the canal was not a
continuing tort.
Rather, the digging of the canal was the
operating cause of injury, and the continued presence of the
canal and consequent diversion of water were simply continuing
effects arising from a single tortious act.
Id. at 727-28.
Furthermore, the Crump court found that the violation of the duty
to remove the canal was the violation of a duty to repair
damage—not a continuing tort.
Id. at 729.
In Cooper, landowners sued the defendant for damages from
permanent flooding of their land due to the construction of locks
and dams.
870 So. 2d at 319.
The court distinguished Crump on
the grounds that in Cooper, the continuous action was a constant
interference with the landowners’ servitudes of drainage.
323.
Id. at
After citing Cooper, Crump, and a number of other Louisiana
cases, the court in Teague held that the existence of the
pipeline and debris on the property there at issue constituted a
continuing tort.
The Teague court found that Crump was
distinguishable in that it did not involve a trespass on the
plaintiff’s land, but rather the digging of a canal that caused
21
“progressively worsening damage.”
Teague, 442 F. Supp. at 324.
The court found that just as in Cooper, wherein the “presence of
locks and dams interfered with the plaintiffs’ servitude of
drainage,” so in Teague, there was a continuing tort because of
the continuing existence of the offending object.
Supp. at 324-25.
Teague, 442 F.
Thus, the court in Teague held that if the
plaintiff filed suit within one year of the pipeline’s removal,
his suit was not prescribed.
Id. at 325.
As previously noted,
the Magistrate Judge’s report and recommendation in this case,
which the District Judge accepted, gave a thorough discussion of
Teague and concluded that due to the continued presence of the
offending pipeline on the Plaintiffs’ property until 2007, at
which time the offending nature of the pipeline ceased due to
Plaintiffs’ grant of a right-of-way to CLEPCO, Plaintiffs’
trespass claim had not been shown to be time-barred.
Rec. Doc.
31, at 30.
Placid cites authority contrary to Teague and the Louisiana
case law cited therein.
For example, Placid cites Patin v.
Stockstill, 315 So. 2d 868 (La. App. 1st Cir. 1975), in which
landowners sued regarding the placement of a road on their
property for the purpose of hauling dirt.
The plaintiff
landowners argued that the placement of the right-of-way across
22
their property was a continuing offense that delayed the
commencement of prescription.
Id. at 871.
The court rejected
the plaintiffs’ argument, finding that “[t]he cause of the injury
arose, produced injury and ceased the moment the road was
constructed . . . .”.
Id.
The court stated that the “continued
existence of the road” on the property did not suspend
prescription after knowledge by the owner.
Id. at 872.
Patin
reveals the importance of how one defines the duty in a trespass
claim.
Cases like Patin may be distinguishable from the instant
one, to the extent that the alleged trespass is not the mere
existence of the pipeline, but that Placid (and subsequently
CLEPCO) continuously used, operated, and maintained the offending
object.4
This alleged continuous activity on Plaintiffs’ land
constitutes a continuing tort that resulted in successive damages
from day to day.
See Kling Realty Co., Inc. v. Chevron USA,
Inc., 575 F.3d 510, 519 (5th Cir. 2009) (“Thus, the question is
4
Also distinguishable on this basis is Terrebonne Parish School Board
v. Mobil Oil Corp., 310 F.3d 870 (5th Cir. 2002), in which the defendant
dredged a canal to access a well. The drilling and well-completion operations
had been abandoned 42 years prior to the plaintiff’s lawsuit, but the
plaintiff maintained that the existence of the canal had contributed to
erosion of the land. Id. at 873. The court refused to apply the continuing
tort doctrine because “the defendant’s conduct ceased decades earlier,” in
that the completed well had been abandoned with the canal left intact
approximately 40 years prior to the filing of suit. Id. at 886. Cf. Frank C.
Minvielle, L.L.C. v. IMC Global Operations, Inc., 380 F. Supp. 2d 755, 766
(W.D. La. 2004) (continuing tort doctrine inapplicable where the tortious
conduct, the disposal of waste onto the plaintiff’s property, had abated when
the defendant ceased operations).
23
whether a continuing physical invasion of the property is
present.”); Hunter v. Tensas Nursing Home, 32,217, p.5 (La. App.
2d Cir. 10/27/99); 743 So. 2d 839, 842 (“Typically, courts have
found torts to be continuous in nature where each individual act
would not necessarily give rise to a cause of action; but
instead, the cumulative effect of regularly-occurring or
continuous actions results in successive damages from day to
day.”).
However, continuous operation of a pipeline is a different
theory of trespass from an allegation that the defendant failed
to remove it after placing it there.
This distinction may be one
with a difference to the extent Plaintiffs would argue that the
continuing tort was continuous use of the pipeline.
Specifically, it is undisputed that subsequent to December 1,
2000, when CLEPCO purchased the pipeline, Placid did not own any
interest in or operate any part of the pipeline system or
transport any oil through it.5
Therefore, as to Placid, if the
continuous tort of trespass is defined as the continuous use of
the pipeline, Placid’s relevant conduct ended in 2000,
approximately seven years prior to the filing of Plaintiffs’
5
See Rec. Doc. 60-2, at 3, ¶ 10 (Placid’s statement of undisputed
facts, claiming that the agreement was effective October 30, 2000); Rec. Doc.
61-2, at 1, ¶ 3 (Plaintiffs agreeing that this is an undisputed fact, with the
exception that the sale to CLEPCO was effective December 1, 2000).
24
lawsuit.
Thus, in order to avoid summary judgment on
prescription, Plaintiffs’ theory must be not that the continuing
trespass was Placid’s use of the pipeline, but rather its failure
to remove the pipeline, which alleged tort persisted until 2007,
when Plaintiffs granted a right-of-way in favor of CLEPCO.
Placid cites case law rejecting such a theory.
See Boudreaux v.
Terrebonne Parish Police Jury, 422 So. 2d 1209, 1213 (La. App.
1st Cir. 1982) (“The continued existence of a construction
unlawfully placed on land by virtue of a trespass does not
suspend or interrupt this prescriptive period.”).6
Plaintiffs’ theory presents a thorny issue.
Thus,
Federal district
courts interpreting Louisiana law (e.g., in Teague) have found
that the pipeline’s continuing existence is sufficient, while at
least some Louisiana courts (e.g., Patin and Boudreaux) have
found this to be insufficient.
In the wake of its decision in Crump and in an apparent
attempt to synthesize and otherwise explain apparently disparate
case law regarding the continuous tort doctrine, the Louisiana
Supreme Court in Hogg v. Chevron USA, Inc., 2009-2632 (La.
6
Boudreaux involved a suit for damages in tort alleging trespass, where
the defendant contracted for the placement of a drainage and reservoir canal
and levee across the plaintiffs’ property. 422 So. 2d at 1211-12. It appears
that the quoted statement was dicta because the referenced prescriptive period
was ultimately held not to apply. Id. at 1213-14.
25
7/6/10); 45 So. 3d 991, gave the most recent in-depth treatment
to the issue that this Court is aware of.
In Hogg, the Court
addressed “whether the plaintiffs’ claims for damages to their
immovable property resulting from the migration of gasoline from
formerly leaking underground storage tanks located on neighboring
property” were prescribed, and whether a continuing tort was
implicated.
Id. at 994.
The plaintiff landowners in Hogg sued
regarding the migration of gasoline from an adjacent lot that was
used as a gas service station.
Id. at 994-95.
In concluding
that neither the doctrine of contra non valentem nor of
continuing tort applied, and therefore that plaintiffs’ action
was prescribed, the Court thoroughly reviewed Louisiana law
regarding continuing torts—specifically, continuing trespasses.
Citing its prior decisions, including Crump, the Louisiana
Supreme Court characterized the appropriate inquiry as “a
conduct-based one, asking whether the tortfeasor perpetuates the
injury through overt, persistent, and ongoing acts.”
1003.
Id. at
In the context of trespass to land, “[w]hen a trespass
which permanently changes the physical condition of the land is
concluded, no additional causes of action accrue merely because
the damage continues to exist or even progressively worsens.”
Id.
The court noted that it was guided by prior jurisprudence,
26
and then proceeded to review the pertinent case law, giving
“particular” attention to the court’s prior decision in South
Central Bell Telephone Co. v. Texaco, Inc., 418 So. 2d 531 (La.
1982).
In South Central Bell Telephone, the plaintiff had filed
suit for damage to underground telephone cables caused by
gasoline leaking from storage tanks on nearby properties.
In
that case, the court found that the operating cause of injury was
the leaking underground storage tanks, and that the operating
cause abated when the tanks were removed and replaced.
Central Bell Telephone, 418 So. 2d at 533.
South
Following its
discussion of South Central Bell Telephone, the Hogg court
proceeded to review other Louisiana cases.
It noted that in
Mouton v. State, 525 So. 2d 1136, 1142 (La. App. 1st Cir. 1988),
involving the deposit of toxic and hazardous waste on the
landowner’s property, the court found that the operating cause of
injury was not the presence of hazardous waste on the property,
but rather the deposit of waste on the land, which having ceased
more than one year before suit was filed, meant that the claim
was time-barred.
The court in Hogg then noted that a similar
result obtained in Lejeune Bros., Inc. v. Goodrich Petroleum Co.,
L.L.C., 2006-1557, p.17 (La. App. 3d Cir. 11/28/07); 981 So. 2d
27
23, 35, in which the court held that the disposal of waste onto
the plaintiff’s property was the operating cause of injury.
Consistently with the jurisprudence that the court cited in
Hogg, the court held that the operating cause of the injury under
the allegations was the leaking storage tanks, rather than the
presence of the gasoline in the soil.
45 So. 3d at 1006.
The
presence of the gasoline was the continuing effect of prior
wrongful conduct that had occurred on adjacent property.
Accordingly, the court found that the leakage of gasoline did not
constitute a continuing tort.
Id.
However, the court noted in a
footnote that the operating cause was the leaking underground
storage tank, and that the tortious conduct ceased once the tank
was replaced.
Id. n.17.
Such an analysis suggests that as long
as the object through which a defendant commits a trespass to
land remains in place, causing continuing injury, the remainder
of that object on the land constitutes a continuing trespass.
Although the Louisiana Supreme Court in Hogg faced a more
nuanced, toxic tort issue than the question of laying a pipeline,
its analysis suggests that the proper inquiry in a continuing
trespass context is (1) the identification of the thing through
which the defendant is alleged to have trespassed, and (2)
whether the defendant leaves that thing in place.
28
In the instant
case, the District Judge’s prior ruling, which adopted the
Magistrate Judge’s report and recommendation, was not manifestly
erroneous in finding the existence of a continuing trespass due
to Placid’s placement of a pipeline on Plaintiffs’ property and
leaving it there.
Although there is jurisprudence suggesting
that a trespass does not continue simply because an offending
object remains on property, there is also jurisprudence to the
contrary.
Although the Louisiana Supreme Court has set the
bounds of the appropriate analysis in Crump and Hogg, this Court
is not aware of any Louisiana Supreme Court decision suggesting
that a continuing tort does not exist under the facts of the
present case.
Accordingly, the Court’s answer to the first
question is that there was a continuing trespass attributable to
Placid at least during the period of Placid’s putative ownership
of the pipeline due to its existence on Plaintiffs’ land during
that time period.
2.
Post-2000 Tortious Conduct
The second issue is whether the pipeline’s continuing
existence even after Placid sold it to CLEPCO in 2000 could delay
the commencement of prescription as to Placid as long as the
pipeline remained on Plaintiffs’ land.
Placid’s argument is
essentially that the continuous nature of its wrongdoing ceased
29
in 2000, when it sold the pipeline right-of-way to CLEPCO.
The
Magistrate Judge’s prior report and recommendation rejected this
argument because Placid cited no jurisprudence in support of this
contention.
Rec. Doc. 31, at 31.7
The revision comments to
Article 3493, which establishes the prescriptive period
applicable to Plaintiffs’ trespass claim, state:
Louisiana decisions draw a distinction between damages
caused by continuous, and those caused by
discontinuous, operating causes. When the operating
cause of the injury is continuous, giving rise to
successive damages, prescription begins to run from the
day the damage was completed and the owner acquired, or
should have acquired, knowledge of the damage. See
South Central Bell Telephone Co. v. Texaco, 418 So.2d
531 (La.1982), and cases cited therein. When the
operating cause of the injury is discontinuous, there
is a multiplicity of causes of action and of
corresponding prescriptive periods. Prescription is
completed as to each injury, and the corresponding
action is barred, upon the passage of one year from the
day the owner acquired, or should have acquired,
knowledge of the damage. See A.N. Yiannopoulos, Predial
Servitudes, § 63 (1982).
LA. CIV. CODE art. 3493 cmt. c (emphasis added).
Therefore, the
crucial issue is whether the pipeline’s existence is a continuous
operating cause of the damage alleged.
Specifically, did the
transfer of ownership from Placid to CLEPCO constitute the
creation of a new operating cause, such that prescription on the
7
The report and recommendation also cited the cases it had previously
discussed for the proposition that as long as the offending object remains on
immovable property, the trespass continues.
30
trespass claim against Placid could begin to run as soon as
Plaintiffs acquired knowledge of the trespass?
There is Louisiana case law that, broadly read, states that
the continuing existence of an offending structure constitutes a
continuing tort until the structure is removed, which might
suggest that Placid’s transfer of ownership of the right-of-way
to CLEPCO did not end the continuing nature of Placid’s tort of
placing the pipeline there.
See, e.g., Joseph A. Neyrey, General
Contractor, Inc. v. La. Power & Light Co., 347 So. 2d 266, 267
(La. App. 4th Cir. 1977) (“[A] trespass committed by illegally
erecting a structure on immovable property continues as long as
the offending object remains on the premises, and the trespass is
terminated only by the removal of the object wrongfully placed
there.”); Vial v. S. Cent. Bell Telephone Co., 423 So. 2d 1233,
1236 (La. App. 5th Cir. 1982) (same).
However, although these
statements of law certainly apply where only one entity or person
is responsible for placement of the offending structure on a
plaintiff’s land, it does not necessarily follow that the tort is
a continuing one where Party A initially places the offending
structure on land, but then Party B assumes the maintenance of
and responsibility for the offending object.
In fact, a plain
reading of Louisiana case law suggests that the continuing tort
31
doctrine only applies with respect to the tort liability of the
defendant whose conduct is ongoing.
See Crump, 737 So. 2d at 728
(“[F]or there to be a continuing tort there must be a continuing
duty owed to the plaintiff and a continuing breach of that duty
by the defendant.”) (emphasis added).
Thus, the issue may be re-
framed as whether the continuing existence of the pipeline, posttransfer to CLEPCO, is fairly attributable to Placid, such that
the post-transfer existence of the pipeline is a continuing
trespass with respect to Placid.
Placid argues that when it purported to convey the pipeline
to CLEPCO, any duty it had to remove the pipeline ended because
it no longer owned the pipeline.
However, this argument is not
persuasive because it is akin to arguing that an alleged
tortfeasor may absolve himself of a duty owed to the alleged
victim by contracting with a third party for that third party to
assume the duty.
Under general Louisiana principles of
obligations, although an obligor may contract with a third party
who assumes the obligation, and the obligee may be able to
recover from the third party, the obligor still owes the duty.
See LA. CIV. CODE art. 1821 (“An obligor and a third person may
agree to an assumption by the latter of an obligation of the
former. . . . The unreleased obligor remains solidarily bound
32
with the third person.”).
Furthermore, the type of trespass at
issue is the erection of a structure upon land, and this
definition of trespass does not require that the defendant own
the thing used to commit the trespass.
See M & A Farms, Ltd. v.
Town of Ville Platte, 422 So. 2d 708, 711 (La. App. 3d Cir. 1982)
(“A continuing trespass occurs where the defendant erects a
structure or places an object upon the land of the plaintiff and
fails to remove it.”).
Although the Court need not, and does
not, pass judgment on the merits of the trespass claim, to the
extent such a cause of action exists, Placid cannot negate its
duty not to trespass by stating that it sold to a third party
whatever property rights it had in the operative mechanism of the
trespass.
Therefore, the Court finds that because Placid had a
continuing duty to remove the pipeline it laid on Plaintiffs’
land, the failure to remove the pipeline constituted an alleged
continuing tort that existed until 2007, when Plaintiffs granted
a right-of-way to CLEPCO.8
8
The Court need not address the parties’ remaining arguments, for
example, whether Placid and CLEPCO could be joint tortfeasors, such that
CLEPCO’s use of the pipeline after Placid’s sale to CLEPCO could constitute a
continuing tort for which Placid could be responsible. The parties also raise
the issue of whether pre-1996 Louisiana tort law could apply, based on pre1996 maintenance of the pipeline, so as to make CLEPCO and Placid solidary
obligors, such that CLEPCO’s continued use could extend the prescriptive
period as to Placid. The Court need not reach this argument, either.
33
Notwithstanding the applicability of the doctrine of
continuing tort to this case, this leaves unanswered one final
potential issue that the parties do not directly address in their
supporting memoranda.
Granted that the existence of the pipeline
on Plaintiffs’ property constituted an alleged continuing
trespass of Placid, such that the conduct continued until 2007,
the Court must address the interaction of the continuing tort
doctrine with the applicable prescriptive period.
As previously
stated, because the trespass claim is a claim for damage 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.”
LA. CIV. CODE art. 3493.
Plaintiffs aver that “[i]n the Fall of 2005, W. Patrick Aertker,
Jr. discovered that no valid right-of-way agreement existed for
the 8-inch pipeline.”
Rec. Doc. 1, at 6, ¶ 18.
Thus, Plaintiffs
knew or should have known of the trespass more than one year
prior to the date on which they filed suit.
The comments to article 3493 indicates that “[w]hen the
operating cause of the injury is continuous, giving rise to
successive damages, prescription begins to run from the day the
damage was completed and the owner acquired, or should have
acquired, knowledge of the damage.”
34
LA. CIV. CODE art. 3493 cmt.
c.
Facially, this statement raises the issue of whether,
notwithstanding the continuous conduct, Plaintiffs’ trespass
claim is prescribed for failure to file suit within one year from
when they knew of the damage.
However, the comments cite to
South Central Bell Telephone, in which the Louisiana Supreme
Court stated that although the prescriptive period for damage to
adjacent land generally commences when the damage becomes
apparent, “[w]hen the damaging conduct continues, prescription
runs from the date of the last harmful act.”
418 So. 2d at 532.
Here, the harmful “act” of Placid’s alleged failure to remove the
pipeline ended in 2007, when Plaintiffs granted a right-of-way to
CLEPCO, which permitted CLEPCO to use such right-of-way for a
pipeline.
Therefore, because suit was filed within one year of
when the continuing tort ended, Plaintiffs have demonstrated the
timeliness of their trespass claim.
For the foregoing reasons, the Court finds that, as the
Magistrate Judge previously found and the District Judge agreed,
Plaintiffs’ trespass claim was timely filed and is not barred by
liberative prescription.
The Court need not decide the validity
of the trespass claim, but merely looks to the allegations of the
complaint, supplemented by material facts beyond genuine dispute.
The Louisiana Supreme Court has stated, “Statutes regulating
35
prescription are strictly construed against prescription and in
favor of the obligation sought to be extinguished; thus, of two
possible constructions, that which favors maintaining, as opposed
to barring, an action should be adopted.”
1258.
Mallett, 939 So. 2d at
Drawing all proper inferences in favor of the non-movant,
the Court finds that Placid’s motion should be denied.
For the foregoing reasons, IT IS ORDERED that Defendants’
Motion for Summary Judgment (Rec. Doc. 60) is hereby DENIED.
New Orleans, Louisiana, this 15th day of June, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
36
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