Opinion
CIVIL ACTION NO. 6:19-CV-00852
11-20-2019
Mark SANDERS v. McClinton C. GREEN et al
Jeremiah Nathan Johns, Law Offices of J Nathan Johns, Maro Petkovich, Jr., Mouledoux Bland et al., New Orleans, LA, Nicholas James Cenac, Law Office of Nicholas Cenac, Rayville, LA, for Mark Sanders B Gene Taylor, III, Connor Charles Headrick, Gold Weems et al., Daniel G. Brenner, Jonathan Asher Cobb, Bolen Parker et al., Alexandria, LA, for McClinton C. Green
Jeremiah Nathan Johns, Law Offices of J Nathan Johns, Maro Petkovich, Jr., Mouledoux Bland et al., New Orleans, LA, Nicholas James Cenac, Law Office of Nicholas Cenac, Rayville, LA, for Mark Sanders
B Gene Taylor, III, Connor Charles Headrick, Gold Weems et al., Daniel G. Brenner, Jonathan Asher Cobb, Bolen Parker et al., Alexandria, LA, for McClinton C. Green
MEMORANDUM RULING AND ORDER
MICHAEL J. JUNEAU, UNITED STATES DISTRICT JUDGE
Before the Court is the Motion for Summary Judgment filed by Defendant, McClinton C. Green, Rec. Doc. [3]. Having reviewed the motion, the submitted evidence, and the relevant law, and noting that no party has filed an opposition to the motion, the Court finds that no genuine issue of material fact exists as to when the date of prescription commenced. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment. Factual Background
Defendant, Green, is a lessor of mobile homes in Leesville, Louisiana. Plaintiff, Sanders, entered into a lease agreement on July 5, 2015 with Defendant whereby Defendant agreed to lease Plaintiff a fully furnished mobile home. On July 1, 2018 the home caught on fire. Plaintiff then filed suit against Defendant on July 2, 2019 based on theories of negligence and breach of Defendant's duties under the lease. Defendant moved for summary judgment on the basis that Plaintiff's claims were barred by Louisiana's one-year prescriptive period for delictual actions. To date, Plaintiff has not filed an opposition, and the 21-day time period to oppose motions is well past.
Local Rule 7.5 ("If the respondent opposes a motion, he or she shall file a response, including opposing affidavits, memorandum, and such supporting documents as are then available, within 21 days after service of the motion.").
Law and Analysis
Under the Western District of Louisiana's Local Rule 7.5, a party who opposes a motion "shall file a response ... within 21 days after service of the motion." Local Rule 56.2 provides specifically for opposing summary judgments and states, "All material facts set forth in the statement required to be served by the moving party will be deemed admitted , for purposes of the motion, unless controverted as required by this rule." (emphasis added). Furthermore, if the opposing party fails to address the movant's assertions of fact the court may "consider the fact undisputed for purposes of the motion." Fed. R. Civ. Proc. 56(e)(2). The court, however, cannot grant summary judgment merely because the motion is unopposed. Fed. R. Civ. Proc. 56(e)(3) ; see also Hetzel v. Bethlehem Steel Corp. , 50 F.3d 360, 362 n. 3 (5th Cir. 1995).
In this case, Defendant filed its motion on September 23, 2019. The 21-day deadline expired in mid-October, and Plaintiff has not filed an opposition nor any motion to extend time. Accordingly, Defendant's assertions of fact will be deemed admitted for the motion, particularly that the fire occurred on July 1, 2018. As such, there is no genuine issue of material fact as to the date that prescription commenced. The Court must now consider whether Defendant is entitled to judgment as a matter of law.
Defendant has submitted sufficient evidence to support that the fire occurred on July 1, 2018 and that Plaintiff was aware of the fire: (1) a call sheet report showing that the fire department was dispatched for a house fire at Plaintiff's address, [Rec. Doc. 3-6] and (2) an incident report from the Vernon Parish Sheriff's Department where Plaintiff was identified at the scene and the home was described as "completely destroyed by fire." [Rec. Doc. 3-7].
a. Cause of Action for Negligence
Plaintiff's first theory of recovery is based on Defendant's negligence in maintaining the property. [Rec. Doc. 1, p. 2]. Louisiana Civil Code art. 3492 provides, "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained." Delictual actions include negligence. "If a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription." La. Civ. Code art. 3456. Furthermore, prescription commences when one has actual or constructive knowledge that he or she could reasonably be a victim of a tort. Bailey v. Khoury , 891 So. 2d 1268, 1276 (La. 2005).
La. Civ. Code Ann. art. 3492 cmt. b (2019).
In this case, the fire occurred on July 1, 2018, and Plaintiff was fully aware of the circumstances. The Vernon Parish Sheriff's Office call sheet shows that authorities were alerted of a fire at Plaintiff's address on July 1, 2018. [Rec. Doc. 3-6]. Additionally, the sheriff's office incident report indicates that the fire occurred on July 1, 2018 and contains a statement from Plaintiff that he observed the fire. [Rec. Doc. 3-7]. As such, prescription accrued one year from July 1, 2018, which was July 1, 2019. Plaintiff filed suit on July 2, 2019—one day late. Accordingly, the cause of action for negligence is prescribed, and summary judgment is granted for the negligence claim.
b. Cause of Action for Breach of Lease & Warranties
Plaintiff's second theory of recovery is based on an alleged breach of the lease agreement and warranties to maintain the property free of vice and defect. [Rec. Doc. 1, p. 3]. "Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years." La. Civ. Code art. 3499. Ten-year prescription is commonly associated with contract claims. See Moore v. City of Monroe , 147 So. 3d 288, 293 (La. App. 2d Cir. 2014), writ denied , 160 So. 3d 973 (La. 2014).
Defendant contends that although Plaintiff's theories of recovery sound in both tort and contract, the conduct constituting the claims is the same for each claim. [Rec. Doc. 3-1, p. 12]. Defendant argues that this conduct constitutes failures and omissions more akin to a tort action. Consequently, Defendant contends that all of Plaintiff's claims are subject to the one-year prescriptive period for tort or delictual actions. In support of this argument, Defendant relies on a small line of cases that purport to hold that breach of lease warranties arise ex delicto (in tort) and are subject to one-year prescription.
First, Defendant argues that this Court should follow Singleton v. Simms , 438 So. 2d 633 (La. App. 4th Cir. 1983). In Singleton , the lessee sued the lessor to recover damages resulting from a collapsed roof on the leased premises. Id. at 634. The trial court found that the action was prescribed and applied one-year prescription. Id. On appeal, the plaintiff argued that the action was based on the lease agreement and that ten-year prescription should apply. Id. The appellate court disagreed stating, "an ‘action by a lessee against a lessor for damages caused by defects in the leased premises’ is an action ex delicto and has a prescription period of one year." Id. at 635 (quoting Aiola v. Di Martino, 136 So.2d 151 (La. App. 4th Cir. 1962) ).
Additionally, Defendant directs the Court to Stephens v. Int'l Paper Co. , 542 So. 2d 35 (La. App. 2d Cir. 1989). In Stephens , the plaintiff sued the defendant for failure to close cattle gates during a timber operation which caused the escape of plaintiff's cattle. Id. at 36. The plaintiff argued that a ten-year prescriptive period applied because of implied obligations in the timber contract to perform in a "good and workmanlike manner." Id. at 38. The Stephens court distinguished between damages ex delicto and damages ex contractu by finding that general duties are associated with delictual actions, and special duties arising by contract are associated with contractual actions. Id. at 39. The court then found that the specific contract at issue in Stephens did not give rise to any special contractual duties. Id.
In the instant matter, Stephens is distinguishable. In Stephens , one of the main concerns was the type of contract between the parties. Id. at 38. The court had to determine whether the contract was one of sale or whether the contract was one for work or services. Id. A contract for work or services did, indeed, carry implied obligations to perform in a "good and workmanlike manner" under former articles of the Civil Code. The Stephens court, however, found that the contract was one of sale which does not contain such a duty in the Civil Code. The contract in Stephens also contained a servitude of passage for which the Civil Code imposes a duty not to "unreasonably injure the rights of the owner of the servient estate." Id. at 39. The Stephens court found that this duty under La. Civ. Code art. 745 was too general to give rise to an action ex contractu with a ten-year prescriptive period.
Where Stephens involved a contract of sale and servitude, the present case involves a contract of lease. This distinction is not thin. The contract of sale in Stephens was not accompanied by a duty to perform in a "good and workmanlike manner" in the Civil Code whatsoever. Additionally, the Civil Code duty accompanying the servitude of passage is much more general than the duties under lease. Louisiana's law of lease provides separate and distinct provisions that impose specific duties and warranties on lessors. La. Civ. Code art. 2691 ; La. Civ. Code art. 2696.
La. Civ. Code art. 745 provides for the right to enter the servient estate stating, "The owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude. He may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible." The obligation "of causing the least possible damage" is extraordinarily general, and the main idea of art. 745 is to describe the right (rather than duty) of the owner of the dominant estate.
Thus, Singleton would appear to be the most instructive case since it involves a contract of lease and the duties under present La. Civ. Code art. 2696. However, Singleton belongs to a small line of cases that have been criticized. These cases trace their lineage to Schoppel v. Daly , 112 La. 201, 36 So. 322 (1904) and erroneously apply the holding of this 1904 Louisiana Supreme Court case. In Schoppel , the court had to determine the nature of the claim of the lessee's wife against the lessor. Id. at 325. The Schoppel court assumed that the wife was not a signatory to the lease contract and thus could not avail herself of the Civil Code's lease warranties. Id. As a result, the court found that the wife's claim must arise in tort (ex delicto ) rather than under contract (ex contractu ) since she did not have a contractual relationship with the lessor. Id.
Melissa T. Lonegrass, The Anomalous Interaction Between Code and Statute-Lessor's Warranty and Statutory Waiver , 88 Tul. L. Rev. 423, 445 n. 143 (2014).
The two most contemporary cases treating Civil Code lease warranties as actions ex delicto are Singleton v. Simms, 438 So.2d 633 (La. App. 4th Cir.1983) and Washington v. Battard , 523 So. 2d 7 (La. App. 4th Cir. 1988). Both of these cases rely solely on Aiola v. Di Martino , 136 So. 2d 151 (La. Ct. App. 1962). Aiola specifically relies on Schoppel v. Daly , 112 La. 201, 36 So. 322 (1904).
More recent Louisiana Supreme Court jurisprudence has clarified the tort and contractual aspects of lease actions:
The lessor's duties ex contractu are set forth in the parties' contract of lease; in Title IX of the Civil Code, Of Lease, art. 2669 et seq.; and in Title III of the Civil Code, Obligations in General, art. 1756 et seq. The lessor's duties ex delicto are also provided by the Civil Code. For example, LSA–C.C. arts. 670, 2315, 2316,
2317, 2332. As a result, the duties of a lessor may have more than one source, as in the case of a negligent breach of a contractual obligation, in which case causes of action lie for both the breach and the negligence. Gray & Co., Inc. v. Ranger Ins. Co., 292 So.2d 829, 830 (La. App. 1st Cir.1974). The existence of the lessor/lessee relationship and contractual remedies, therefore, does not preclude lessor liability for breach of duties ex delicto.
Potter v. First Fed. Sav. & Loan Ass'n of Scotlandville , 615 So. 2d 318, 322 (La. 1993). The concurrent contractual and tort duties described in Potter are clear within the Civil Code itself, particularly as applied in this case. In the Code's title on lease, a nominate contract, La. Civ. Code art. 2696 imposes a contractual duty for the lessor to warrant the thing free of vices and defects. In the Code's title on offenses and quasi-offenses, otherwise known as tort, La. Civ. Code art. 2317.1 imposes liability on a lessor for vices, defects, and ruin that cause damage.
La Civ. Code art. 2317.1 imposes liability on owners or custodians of things for ruin, vice, or defect in the thing. Lessors are indeed custodians of the things they lease. Additionally, La. Civ. Code art. 2322, which appears in the same chapter of offenses and quasi-offenses, imposes liability on the owner of buildings who through failure to repair or through vice or defect cause damage.
Based on the forgoing analysis, the nature of causes of action under lease and the applicable prescriptive period for lease actions is best described as follows:
The contractual and delictual obligations are imposed upon the lessor concurrently, so that an injured lessee may recover under either theory, or both. However, an injured lessee is most likely to allege a violation of the lessor's contractual responsibilities. This has been the case historically and remains true under current law, likely because the contractual action is generally far more advantageous to the lessee ... Additionally, the lessee's breach of warranty claim is subject to a generous ten-year period of prescription, as opposed to the one-year period applicable to delictual claims.
Melissa T. Lonegrass, The Anomalous Interaction Between Code and Statute-Lessor's Warranty and Statutory Waiver , 88 Tul. L. Rev. 423, 444–45 (2014). Given that (1) Defendant has not challenged the existence of a lease agreement; (2) the lease agreement that Defendant provided in the record does not waive the warranty against vices and defects; and (3) the agreement does not alter the default lease obligations of the lessor and lessee, the obligations imposed on lease contracts by the Civil Code are in effect. Thus, the Plaintiff's contractual claim under the lease agreement is subject to the ten-year prescriptive period for personal contractual actions.
"The [warranty against vices or defects] may be waived, but only by clear and unambiguous language that is brought to the attention of the lessee." La. Civ. Code art. 2699.
Compare [Rec. Doc. 3-4] with La. Civ. Code art. 2691 ; 2692.
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Conclusion
Accordingly, Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's prescribed negligence claim but is DENIED as to Plaintiff's breach of lease agreement and warranties claim. Further, the oral argument on this motion, currently scheduled for December 19, 2019, is hereby CANCELLED. THUS DONE AND SIGNED in Lafayette, Louisiana, on this 20th day of November, 2019.