Opinion
CIVIL ACTION NO. 03-457 SECTION "N"
November 3, 2003
ORDER AND REASONS
Before the Court is a Rule 12(b)(6) Motion to Dismiss, filed by defendants. For the reasons that follow, the motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiffs filed this suit seeking damages for losses it allegedly sustained in connection with a piece of real property in Hammond, Louisiana. Plaintiff Global ADR, Inc. purchased the property, allegedly with the intent to convert the property into a law office and/or mediation center. Because the property is located in an area of Hammond that is zoned residential, the plaintiffs allegedly made several efforts prior to the purchase to obtain the "conditional use" exception necessary to use the property commercially. On September 7, 1999, the Hammond City Council passed an ordinance adopting the requested conditional use, and plaintiffs closed on the purchase on November 17, 1999. However, a group of neighbors filed a state court lawsuit, challenging the City Council's procedures in adopting the ordinance. Both the trial court and the stale appellate court agreed with the neighbors, finding the ordinance to be a nullity due to the City Council's failure to advertise amendments to the ordinance. Less than one year after the appellate court issued its judgment, plaintiff filed this suit, ultimately suing the (1) City of Hammond, (2) Coregis Insurance Company and United National Insurance Company (the City's insurers), (3) Louis J. Tallo (the former Mayor of Hammond), (4) Dr. Lavanna Brown, Toni Licciardi, Nicky Muscarello, Jerry Correjolles, and Osa Williams (present and former members of the City Council), (5) Ron S. Macaluso (the former City Attorney of Hammond), and (6) Lanita V. Johnson (Clerk of the City Council). Plaintiff has asserted claims pursuant to 42 U.S.C. § 1983 and the Fifth Amendment, as well as Louisiana tort law, seeking damages for losses alleged sustained as a result of the defendants' alleged failure to follow the proper procedures necessary to pass the ordinance.
II. LAW AND ANALYSIS
Defendants argue that plaintiffs' claims should be dismissed because their constitutional claims are unripe and their Louisiana tort claims are prescribed. Alternatively, they argue that plaintiffs have no right of action to bring the Louisiana tort claims.
"A 12(b)(6) motion to dismiss should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159 (1986); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) ("A dismissal will not be affirmed if the allegations support relief on any possible theory."). In making this determination, the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff." Indest, 164 F.3d at 261; Campbell, 781 F.2d at 442 ("the complaint is to be liberally construed in favor of the plaintiff"). "All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiffs favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
A. Ripeness:
Plaintiffs acknowledge that their takings claim is premature, but argue that their substantive due process claim is not. Defendants are correct that there must be a final decision in order for plaintiffs' substantive due process claim to be ripe. See Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 200 (1985) (effect of zoning regulations on the value of respondent's property and investment-backed profit expectations "cannot be measured until a final decision is made as to how the regulations will be applied to respondent's property," and "[n]o such decision had been made at the time respondent filed its § 1983 action, because respondent failed to apply for variances from the regulations"). Defendants argue that there has been no final decision here, because plaintiffs failed to resubmit their request for the conditional use ordinance after the state appellate court struck down the original ordinance. Depending upon the record of the City Council's proceedings and the rules of procedure applicable thereto, defendants' argument may ultimately prove to be correct. However, under Rule 12(b)(6), the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff." Indest, 164 F.3d at 261. The Court agrees with plaintiffs that the complaint does fairly allege a request by plaintiffs for the City Council to adopt a new ordinance and a refusal by the City Council to do so. See Compl. at Count IV, ¶ 6. The proper vehicle for challenging this allegation is a motion for summary judgment. B. Prescription:
Defendants argue that plaintiffs' Louisiana tort claims are prescribed because the one-year prescriptive period began to run, at the latest, when the state trial court ruled in the neighbors' favor. Plaintiffs, on the other hand, argue that they did not suffer any injury resulting from defendants' omissions until the ordinance was invalidated. According to plaintiffs, this did not occur until the judgment was final, which finality occurred within the prescriptive period.
Under Louisiana law, actions sounding in tort "are subject to a liberative prescription of one year." La. CIV. Code art. 3492. `This prescription commences to run from the day injury or damage is sustained." Id. `The damage suffered must be actual and appreciable in quality-that is, determinate and not merely speculative." Orthopaedic Clinic of Monroe v. Ruhl, 786 So.2d 323, 328 (La.App. 2d Cir.), writ denied, 798 So.2d 970 (La. 2001). "Damage is sustained, for prescription purposes, only when it has manifested itself with sufficient certainty to be susceptible to proof in a court of justice." Landry v. Blaise, Inc., 774 So.2d 187, 190 (La.App. 4th Cir.), writ denied, 776 So.2d (La. 2000). "The damage must be actual and appreciable in quality." Id.
"Courts should resolve doubts about a prescription question in favor of giving the litigant his day in court." Ruhl, 786 So.2d at 328. "Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished." Landry, 774 So.2d at 190. "Accordingly if a petition does not show that it has prescribed on its face, the burden is on the party raising the objection of prescription to prove the facts to support prescription." Id.
Here, plaintiffs' complaint does not show that it has prescribed on its face. Nor have defendants at this juncture met their burden of proving the facts necessary to support prescription. Defendants' arguments focus on when plaintiffs should have been put on notice regarding the defendants' alleged negligence. However, prescription does not commence to run upon acquiring notice of a wrongful act. Gochnour v. Boring Aircraft Co., 1992 WL 129605 *2 (E.D. La. 1992) ("`mere notice of a wrongful act' is not sufficient to commence the running of prescription"). It commences to run when injury or damage is sustained. La. CIV. Code art. 3492. Defendants assert in their Rule 12(b)(6) motion that plaintiff Global ADR was joined as a party in the neighbor's state court suit. If this is so, then it is entirely possible that Global ADR was forced to incur attorneys fees and legal costs, which very well might suffice to establish an appreciable injury prior to the invalidation of the ordinance. See, e.g., Brand v. New England Ins. Co., 576 So.2d 466, 469 (La. 1991) (plaintiff sustained "appreciable and actual harm" when his asset was attacked and "he was compelled to incur and pay attorney's fees, legal costs and expenditures"). However, such injury is not evident from the face of the complaint. Accordingly, under a Rule 12(b)(6) standard, defendants' prescription argument must fail.
C. No Right of Action
Alternatively, defendants argue that plaintiffs have no right of action to bring the tort claims, because it was the previous property owner who actually submitted the application for the conditional use. In support of this argument, defendants cite only Louisiana Code of Civil Procedure article 681. See La. Code CIV. P. art. 681 ("Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts."). Assuming that the Louisiana Code of Civil Procedure would even apply in this case (which this Court considers doubtful), the Court finds no merit in this argument. Plaintiffs have alleged that defendants made negligent misrepresentations and committed other acts of negligence which caused the plaintiffs to sustain damages. It is difficult to fathom who other than plaintiffs would have a real and actual interest in asserting the claim for such damages.
III. CONCLUSION
Accordingly, IT IS ORDERED that the Rule 12(b)(6) Motion to Dismiss, filed by defendants, is GRANTED IN PART, in that it is granted as to plaintiffs' takings claim, and DENIED IN PART, in that it is denied in all other respects, without prejudice to defendants' right to re-urge their ripeness and prematurity arguments in a motion for summary judgment.