71 So. 3d 1059
La. Ct. App.2011Background
- Dugas purchased property at 1201 Governor Nicholls St., New Orleans, which suffered damage from Hurricane Katrina.
- In 2006 Dugas contracted Thompson to dismantle and rebuild a leaning exterior brick wall; a large section collapsed in Nov. 2006.
- City of New Orleans issued building-code-imminent-danger notices in Dec. 2006, demanding corrective action and demolition/removal of hazards.
- Hamp's Construction (Hamp's) under a City Demolition Contract removed debris and salvageable materials during demolition work.
- Dugas filed suit in Nov. 2007 against Thompson and insurer; Hamp's added in June 2009; Hampton/Hamp's moved to dismiss for prescription.
- Trial court sustained peremptory exception of prescription; Dugas appeals, arguing tolling theories and contract-based remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dugas' claim against Hamp's prescribes | Dugas argues ten-year benefit or tolling via third-party stipulation or unjust enrichment. | Hamp's asserts one-year prescriptive period for tort/conversion and no valid tolling. | Prescription sustained; claims prescribed. |
| Whether joint tortfeasor interruption applies | Thompson and Hamp's are joint tortfeasors; interruption against Thompson interrupts Hamp's. | Final partial judgment showed not joint tortfeasors; interruption not available. | No joint-tortfeasor interruption due to final judgment against Thompson. |
| Whether contra non valentem tolling applies | Dugas asserts discovery of the Demolition Contract salvaging provision tolls prescription. | Knew Hamp's identity in Dec. 2006; tolling not available. | Contra non valentem not applicable; prescription began Dec. 2006. |
| Whether Hamp's contract creates a stipulation pour autrui for Dugas | Contends length salvage clause benefits Dugas as third-party beneficiary. | Contract excludes third-party beneficiaries; no manifest, certain benefit. | No stipulation pour autrui; contract does not confer third-party beneficiary status. |
| Whether unjust enrichment supports relief | Argues Hamp's enrichment at Dugas's expense rationalizes recovery. | Unjust enrichment unavailable where another remedy (tort) exists; but prescribed. | Unjust enrichment claim rejected; other remedies prescription bar. |
Key Cases Cited
- Monroe Scrap Material Co., 189 La. 573 (La. 1938) (contra non valentem tolling interrupted until tortfeasor identified)
- Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 939 So.2d 1206 (La. 2006) (three criteria for third-party beneficiary (stipulation pour autrui))
- Davis v. City of Baton Rouge, 383 So.2d 1057 (La. App. 1st Cir. 1980) (city salvage provision not compensable; salvaged materials incidental)
- Cooper v. Louisiana Dept. of Public Works, 870 So.2d 315 (La. App. 3 Cir. 2004) (limits of third-party beneficiary in public works contracts)
- Jim Walter Homes v. Jessen, 732 So.2d 699 (La. App. 3 Cir. 1999) (unjust enrichment remedy not available where another remedy exists)