78 So. 3d 146
La. Ct. App.2011Background
- Chef Menteur owns property in Orleans Parish used for fishing/outdoor activities.
- May 8, 1996 lease by Gary Sandrock; renewed through 1998; Glenn Sandrock lessee from 1999-2002.
- Before 2002, Eugene Molinary dumped asbestos-containing material on the property, violating lease terms and LDEQ rules.
- 2003 LDEQ compliance order; Chef Menteur remediated and sued Molinary and the Sandrocks for remediation costs.
- Trial court (Sept. 8, 2009) found fault apportioned and held claims against Molinary prescribed; awarded Chef Menteur damages against Glenn Sandrock and Molinary.
- Final judgment (Dec. 9, 2010) increased damages and apportioned fault; Molinary’s prescription exception not reconsidered at trial; Molinary appealed.
- Court transferred to Fourth Circuit; Molinary asserts improper notice of trial and prescription issues; Fourth Circuit reverses as to Molinary; all claims against Molinary dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Molinary properly served with notice of trial? | Chef Menteur argues notice to counsel satisfied due process. | Molinary contends he was not adequately notified personally of the trial date. | There was no adequate notice to Molinary; trial proceeded in error. |
| Are Chef Menteur's claims against Molinary prescribed, and can prescription be supplied? | Chef Menteur argued some claims avoided prescription under certain statutory schemes. | Molinary maintained claims were prescribed and could not be saved by any exception. | Court affirmed prescription; claims against Molinary were prescribed and cannot be supplied. |
| Should the case be remanded for a new trial due to notice and prescription issues? | Not expressly argued for remand; focus on merits and prescription. | Remand unnecessary where prescription defeats claims. | Remand not required; judgment reversed-in-part; claims against Molinary dismissed. |
Key Cases Cited
- London Towne Condo. Homeowner's Ass'n v. London Towne Co., 939 So. 2d 1227 (La. 2006) (manifest error standard; respect for prescription evidence.)
- Davis v. Dunn & Bush Const., 859 So. 2d 451 (La. App. 1st Cir. 2003) (due process requires notice of trial when withdrawing counsel.)
- Metro Gaming & Amusement Co. v. The Deckbar & Grill, L.L.C., 972 So. 2d 1264 (La. App. 5th Cir. 2007) (notice and withdrawal context; due process considerations.)
- Jackson v. Tyson, 526 So. 2d 398 (La. App. 4th Cir. 1988) (notice/due process relevance.)
- Spiers v. Roye, 965 So. 2d 489 (La. App. 1st Cir. 2007) (fundamental notice requirements in trial proceedings.)