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Pracht v. City of Shreveport10/30/2002
The plaintiffs, Steve Pracht and Shade Tree Auto Parts, Inc., appeal a trial court's grant of summary judgment in favor of the city of Shreveport, dismissing plaintiffs' claims on the basis of prescription. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Steve Pracht, owns immovable property at 2624 Hollywood Avenue within the city limits of Shreveport, Louisiana. A concrete-lined drainage canal runs along the back and along one side of the property. The canal was constructed by the city of Shreveport. It is also owned and maintained by the city of Shreveport. Pracht is the sole shareholder in Shade Tree Auto Parts, Inc., which conducts its business out of two separate structures on the immovable property. The main structure is a concrete and cinder-block building with a second attached structure in the rear made of metal. Although the business has been operated out of those two structures since March 8, 1980, Pracht did not purchase the property until June 24, 1991. Prior to his purchase of the property, his business was conducted there under a lease agreement.
Since 1991, the metal structure has flooded on a yearly basis due to overflowing of the drainage canal. On four separate occasions since 1991, the flooding has been severe enough to also flood the main structure: twice in April of 1991, a third time in 1998 and again at some time between 1991 and 1998. As a result of the flooding, the plaintiffs have experienced damage to their movable and immovable property. The soil under the property has been eroded away, causing damage to the foundation of the buildings and to the parking lot including settlement of the foundation as a result of voids, collapse of areas of the parking lot and separation of the walls in the buildings. These damages occurred in varying degrees over time between 1991 and the time the instant suit was filed on May 9, 2001.
Pracht filed suit against the city of Shreveport alleging that it was liable for the damage occasioned on his property as a result of its failure to properly design, construct and maintain the drainage canal. He sued for actual physical damage done to the property and for lost profits to his business. The city filed an exception of no right of action on the claim for lost profits on the grounds that only Shade Tree Auto Parts, Inc. had such a right of action. Before the exception came for hearing, plaintiff filed an amended petition adding Shade Tree Auto Parts, Inc. as a plaintiff.
In answer to both the original and amended petition, the city of Shreveport set forth various affirmative defenses to the plaintiffs' claims including the defense of prescription under LSA-R.S. 9:5624. After deposing Pracht, the city filed a motion for summary judgment on the basis of prescription. A copy of Pracht's deposition, the act of sale by which he acquired the damaged immovable property and numerous pictures depicting the canal and the damaged property were attached to the motion.
The plaintiffs opposed the motion on the grounds that the doctrine of contra non valentem agere nulla currit prescriptio should be applied because of the repairs previously conducted by the city and the alleged assurances provided by the city to repair the damage. In support thereof, plaintiffs presented Pracht's affidavit and correspondence between his attorney and the city's office of risk management. The plaintiffs also argued that summary judgment should be denied because the damages incurred were not a necessary consequence of the public construction project, but were caused by the continuing negligence of the city in failing to repair the drainage canal.
Defendant filed a respo
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