Kling Realty Co., Inc. v. Chevron USA, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 10, 2009

No. 08-30043 Charles R. Fulbruge III
Clerk

KLING REALTY COMPANY INC; WALET PLANTING CO.

Plaintiffs-Appellants
v.

CHEVRON USA INC., individually and as successor in interest, formerly
doing business as Texaco Inc., formerly doing business as Texaco Exploration
and Production Inc

Defendant-Appellee

Appeal from the United States District Court
for the Western District of Louisiana

Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
The original opinion in this case was issued by the panel on December 17,
2008. Kling Realty Co. Inc. v. Chevron USA Inc., 306 F. App’x 24 (5th Cir. 2008).
A petition for rehearing is currently pending before this panel. The petition for
panel rehearing is granted to the extent that we VACATE our previous opinion
and replace it with the following opinion. In all other respects, the petition for
panel rehearing is DENIED.
This case involves the contamination of land by oil and gas exploration
over several decades during the twentieth century. Plaintiffs-Appellants Kling
Realty Co. and Walet Planting Co. (together, “Kling/Walet”) sued Defendant-
 No. 08-30043

Appellee Chevron USA Inc. (“Chevron”), successor in interest to Texaco, and two
other defendants in state court. Chevron removed to federal court, alleging
improper joinder of non-diverse defendants. The district court dismissed the
non-diverse defendants, and denied Kling/Walet’s motion to remand. The
district court dismissed all claims with prejudice, holding that they were barred
by prescription and dismissed as moot Kling/Walet’s motion for leave to add a
non-diverse party. We AFFIRM the judgment.
BACKGROUND
Kling/Walet’s claims are rooted in the contamination of their property in
Iberia Parish, allegedly caused by Chevron’s predecessor (Texaco) while it was
engaged in the exploration and production of oil and gas. Kling/Walet and
Chevron were parties to an oil and gas lease relating to the property, which
terminated, at the latest calculation, in August 1974. Four wells were
established on the Kling/Walet property, the claims in this case relate to Well
No. 6 (“Well”), the only well that was productive for Chevron.1 The Well was
plugged and abandoned in October 1971.
Kling/Walet have used the property for sugar cane farming since the
1970s. At the time that they began farming, Kling/Walet were concerned that
crops would not grow on a small piece of their property. After bringing their
concerns to Chevron, Kling/Walet entered into a release of claims associated
with the Well and any pit, tank battery, or other piece of equipment associated
with the Well (the “1973 Release”), for consideration of approximately $4,000.
It is undisputed that Chevron’s activities on the property ended no later than
1974.
Kling/Walet filed this action in June 2006 in Louisiana state court.
Kling/Walet sought to recover compensatory and punitive damages from

1
Two other wells were abandoned as dry holes. The third, drilled by an entity
unrelated to Chevron, was also a dry hole.

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Chevron, Estis Well Service, LLC (“Estis”), and Jack P. Martin, Sr. (“Martin”)
(collectively, “Defendants”) for contamination of their property located in Iberia
Parish, Louisiana. Kling/Walet are citizens of Louisiana, as are Estis and
Martin. Chevron is not. Kling/Walet allege that they are lessors, assigns, and/or
successors in interest to certain oil, gas, and mineral leases with Chevron.
Kling/Walet alleged that Defendants conducted and/or participated in various
oil and gas exploration and production activities on land including their
property, causing ongoing property damage and various forms of emotional
distress.
In August 2006, Chevron filed a notice of removal. In October 2006,
Kling/Walet responded with a motion to remand to state court. In January 2007,
the district court entered a Memorandum Ruling and Order, concluding that
non-diverse Defendants Estis and Martin had been improperly joined,
dismissing the claims against them, concluding that diversity jurisdiction was
proper, and denying the motion to remand.
In May 2007, Chevron filed a motion for partial summary judgment,
arguing, among other bases, that Kling/Walet’s claims had prescribed.2 In
December 2007, the district court granted Chevron summary judgment on the
issue of prescription for all claims and denied as moot Kling/Walet’s motion for
leave to amend. Kling/Walet appeal.
DISCUSSION
I. Diversity Jurisdiction
A determination that a party is improperly joined and the denial of a
motion for remand to state court are questions of law reviewed de novo.

2
While that motion was pending, Kling/Walet moved in August 2007 for leave to amend
their petition to add a non-diverse defendant, M&C Contractors, Inc. (“M&C”). The court
denied the motion as moot when it held the underlying claims had prescribed. In light of our
holding on the issue of prescription, we affirm the district court’s judgment as to M&C as well.

3
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McDonal v. Abbot Labs., 408 F.3d 177, 182 (5th Cir. 2005). However, this court
reviews a district court’s procedure for determining improper joinder only for
abuse of discretion. Guillory v. PPG Indus., Inc., 434 F.3d 303, 309-10 (5th Cir.
2005).
Kling/Walet argue that the district court erred by piercing the pleadings
and dismissing Martin because neither party presented summary judgment-type
evidence related to whether they had any possibility of prevailing against
Martin, and Chevron therefore did not meet its burden to show improper
joinder.3 Chevron argues that Martin was properly dismissed because,
Kling/Walet’s petition fails to state a claim against Martin under Louisiana law.
Chevron further points to the absence of allegations or evidence presented by
Kling/Walet to show how Martin was connected to their property such that he
faced any liability for the alleged contamination.
There are two bases on which the district court might determine that a
plaintiff improperly joined a non-diverse defendant to defeat subject matter
jurisdiction: “(1) actual fraud in the plaintiff’s pleading of jurisdictional facts, or
(2) inability to establish a cause of action.” Campbell v. Stone Ins., Inc., 509 F.3d
665, 669 (5th Cir. 2007). Under the second prong,4 the test “is whether the
defendant has demonstrated that there is no possibility of recovery by the
plaintiff against an in-state defendant, which stated differently means that there
is no reasonable basis for the district court to predict that the plaintiff might be
able to recover against an in-state defendant.” Smallwood v. Ill. Cent. R.R. Co.,
385 F.3d 568, 573 (5th Cir. 2004) (en banc). “This means that there must be a
reasonable possibility of recovery, not merely a theoretical one.” Campbell, 509

3
Other than a one-sentence relief request, Kling/Walet make no argument that Estis
was properly joined. Therefore the issue of Estis’s dismissal is waived. See, e.g., Edmond v.
Collins, 8 F.3d 290, 292 n.5 (5th Cir. 1993) (“On appeal, we do not review issues not briefed.”).
4
Chevron does not argue that the first prong is applicable.

4
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F.3d at 669 (quoting Ross v. Citifinancial, Inc., 344 F.3d 458, 462 (5th Cir.
2003)). The burden of persuasion on a party claiming improper joinder is a
“heavy one.” Id.
The district court concluded that Kling/Walet failed to state a claim
against Martin, relying largely on Canter v. Koehring, 383 So. 2d 716 (La. 1973),
and Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994) (discussing liability of a
supervisor-employee under Louisiana law and applying Canter). In Canter, the
Louisiana Supreme Court held that an employee could only be held personally
liable for injuries to third persons where: (1) the employer owed a duty of care
to the third person, breach of which caused the damage for which recovery is
sought; (2) that duty was delegated by the employer to the defendant; (3) the
defendant employee breached his duty through personal (not technical or
vicarious) fault; and (4) the employee had a personal duty toward the injured
third party, the breach of which specifically caused the third party’s damages.
Canter, 283 So. 2d at 721. Further, with regard to the accused employee’s
personal fault, personal liability cannot be imposed upon the employee simply
because of his general administrative responsibility for some function of
employment. Id.
The district court found Kling/Walet’s suit distinguishable from Ford. In
Ford, the plaintiffs sued a chemical plant and certain individual defendants,
including the plant manager. 32 F.3d at 936-37. The defendants removed,
alleging the manager, among other defendants, was improperly joined. This
court concluded the Ford plaintiffs did have a reasonable possibility of recovery
against the plant manager, where the facts showed that the plant manger knew
of the leak that lead to the explosion. Id. at 938-39. Here, the district court
concluded that, in contrast to Ford, Kling/Walet made only general and
unsupported allegations that Martin breached a personal duty owed to them
without pleading facts establishing what that actionable, non-general

5
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managerial duty might be. The district court concluded that the allegations in
Kling/Walet’s complaint and motion to remand were not enough to establish a
Canter duty.
Kling/Walet argues that the district court abused its discretion by piercing
the pleadings regarding Martin and improperly shifted the evidentiary burden
from Chevron to Kling/Walet. Kling/Walet further asserts that its petition
5
sufficiently alleges a claim against Martin under the requirements of Canter.
Chevron argues that the district court conducted its analysis properly and that
it correctly concluded that Kling/Walet would not be able to recover against
Martin under Louisiana law. We acknowledge that it is less than clear from the
passage of the district court’s order denying remand whether the district court
engaged in a Rule 12(b)(6)-style analysis, a summary inquiry after piercing the

5
There are two paragraphs of the petition that specifically reference Martin. In
paragraph five of the petition, Martin is listed as one of five defendants: “JACK P. MARTIN,
SR., a Louisiana resident and long-time supervisor in the Fausse Point Field.” Paragraph
twenty-eight details the allegations against Martin:

28. For many years, defendant Jack P. Martin, Sr., served as supervisor of
production for the operators who conducted production activities in the subject
oil field. He directly and personally supervised the installation and use of pits,
wells, pipelines, tank batteries, gas plants and other installations or equipment
used in connection with production activities on the Plaintiffs’ property. He had
personal knowledge of the activities of all defendants that caused or contributed
to the pollution complained of herein. Further, in his supervisory capacity he
had the authority to prevent or limit such activities. Martin knew that
production, disposal, and discharge activities conducted on the subject property
were hazardous to persons and property. Martin knew that disposal of oilfield
wastes in unlined earthen pits or directly to waterways inevitably results in
seepage which contaminates both surface and subsurface soils and waters.
Despite his knowledge, Martin failed to warn petitioners concerning the nature
and extent of the pollutants on their property. Martin had a personal duty to
protect the Plaintiffs and their property, and he breached that duty, thereby
causing the damages described in this petition.

6
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pleadings, or both, in arriving at its conclusion that joinder of Martin was
improper.6 However, we need not parse the order to determine which it is.

6
The district court’s order denying remand first summarizes the parties arguments
regarding possible recovery against Martin, which appeared to focus only on the pleadings:

In sum, plaintiffs argue[] that Martin’s supervisory capacity gave him the
authority and a personal duty to prevent or limit the hazardous pollution . . .
which Martin violated and thus renders him personally liable to plaintiffs.
Defendant argues that allegations contained in both Plaintiffs’ Complaint and
Motion to Remand are vague . . . and fail to identify the employer for whom
Martin worked . . . or allege any specific acts performed by Martin that would
give rise to a personal duty owned to plaintiffs.

However, in its comparison of the present case to Ford, where the pleadings were
pierced, it becomes less clear whether or not the district court then pierced Kling/Walet’s
pleadings as part of its analysis:

The facts before this Court in the instant case are distinguishable from Ford.
In Ford, the evidence provided by plaintiffs suggested, by affidavit testimony,
that the plant manager knew of the leak, therefore indicating that there was a
possibility of recovery against the plant manager. Here, plaintiffs make general
and unsupported allegations that Martin breached a personal duty owed to
them. Plaintiffs have not provided any evidence in support of their Motion to
Remand relating to the damage caused to the subject property or to Martin's
knowledge thereof. There is no evidence that any of plaintiffs’ allegations arise
from a non-managerial duty or that Martin’s position and responsibilities
entailed more than general administrative and managerial responsibilities
where Martin could be held personally responsible under Canter. Moreover,
plaintiffs have failed to produce any evidence that supports the allegation that
Martin knew or should have known of any ongoing activities hazardous to the
property, and how a reasonable “supervisor” in Martin’s position should have
acted on that knowledge. The plaintiffs only point to the fact that Martin
supervised certain activities of the defendants’ on the subject property at the
time of the incident, that the supervisory position presupposes certain
knowledge, and claim a personal duty arising from the previous to plaintiffs.
Under Louisiana law, however, there must be more before a court can find that
there is a possibility of finding personal fault on the part of an employee.
Conclusory allegations, as found in plaintiffs’ Complaint and Motion to Remand,
are not enough to establish a Canter duty, as set out above. The plaintiffs have
not set forth any summary judgment type evidence or any other facts which
would establish that there is a possibility that Martin could be held personally
liable under Canter.

Kling, Order Denying Remand, No. 06-1492, 2007 WL 81665, at *5 (W.D. La. Jan. 8, 2007)
(citation omitted).

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We agree with the district court that Kling/Walet’s conclusory allegations
do not establish a reasonable possibility of recovery against Martin under
Canter, although on different reasoning. See United States ex rel. Farmer v. City
of Houston, 523 F.3d 333, 338 n.8 (5th Cir. 2008) (“[I]t is an elementary
proposition, and the supporting cases too numerous to cite, that this court may
affirm the district court’s judgment on any grounds supported by the record.”).
Significantly, this court has held that Canter liability to third persons for the
negligence of corporate officers and employees may only be imposed for bodily
injury claims. Unimobil 84, Inc. v. Spurney, 797 F.2d 214, 217 (5th Cir. 1986);
see Ford, 32 F.3d at 935-36 (noting Canter outlines circumstances where an
employee could be held “individually liable for injuries to third persons”).
Because the only injury alleged in Kling’s petition is economic and emotional –
damage to its property and various forms of mental distress7 – Kling/Walet
would not have a basis for recovery against Martin under Louisiana law as it has
been interpreted in this circuit. See Unimbobil, 797 F.2d at 217; also Hibernia

7
Specifically, Kling/Walet’s petition summarizes the requested relief as follows:

30. In summary, Plaintiff is thus entitled to the following damages:
a. . . . funds to conduct a[] . . . analysis of the . . . contamination on its property
. . .;
b. The cost to restore its property to its pre-polluted, original condition . . .;
c. Punitive or exemplary damages;
d. An award for unjust enrichment damages for defendants’ unauthorized use
of Plaintiff’s land . . .;
e. . . . [S]tigma damages for diminution in property value . . .;
f. Mental anguish and distress damages;
g. Any civil fruits derived from defendants’ illegal trespass;
h. Damages for annoyance, discomfort and inconvenience occasioned by
nuisance created by defendants, including loss of full use and enjoyment of
Plaintiff’s property; and
i. All other consequential damages . . . that relate to defendants’ breach of
contract, including the costs and attorneys’ fees incurred in bringing this action.

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Cmty. Dev. Corp., Inc. v. U.S.E. Cmty. Servs. Group, Inc., 166 F. Supp. 2d 511,
515 (E.D. La. 2001) (applying bodily injury distinction announced in Unimobil).8
Because Kling/Walet had no reasonable possibility of recovery against
Martin, there was complete diversity between Kling/Walet and Chevron, and the
court properly denied the motion to remand and retained diversity jurisdiction
to hear the case.9 See Guillroy,434 F.3d at 312-13.
II. Prescription
Because the district court had proper subject matter jurisdiction over
Kling/Walet’s suit, we turn to the issue of whether Chevron was entitled to
summary judgment. We review the grant of summary judgment de novo,
applying the same standard on appeal that is applicable in the district court.
Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).

8
The Louisiana precedent principally relied on by the Unimobil court, Fine Iron Works
v. Louisiana World Exposition, Inc., 472 So.2d 201 (La. App. 1985), writ denied, 477 So.2d 104
(La. 1985), remain good law in Louisiana. See, e.g., Cameron Equip. Co., Inc. v. Stewart and
Stevenson Servs., Inc., 685 So.2d 696, 700 (La. App. 1996) (citing Fine Iron Works for the rule
that absent fraud, officers are not personally liable for the debts of the corporation). Although
Fine Iron Works has not been cited with frequency, the reasoning of the case remains in effect.
See, e.g., Korson v. Independence Mall I, Ltd., 595 So.2d 1174, 1178 (La. App. 1992) (“Officers,
employees and agents owe no duties to third parties, and cannot be found liable to third
parties for their negligent acts and omissions in a commercial context, such as this case.”
(citing Unimobil 84, 797 F.2d at 215-17)). In addition, we have found no intervening decisions
or statutory amendments that would cause Unimobil’s interpretation of Canter to be clearly
wrong. See Lamar Advertising Co. v. Cont’l Cas. Co., 396 F.3d 654, 663 n.8 (5th Cir. 2005)
(discussing doctrine of panel stare decisis requiring panel in diversity cases to adhere to a
prior panel’s interpretation of state law in the absence of a subsequent state court decision or
statutory amendment which makes this court’s prior decision “clearly wrong”) (quoting Amer.
Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 271 n.4 (5th Cir. 2003)). We
also note that all of the cases applying Canter that Kling/Walet has cited in its filings involved
claims of bodily injury. See, e.g., McKee v. Kansas City S. Ry., 358 F.3d 329 (5th Cir. 2004)
(featuring a plaintiff was a vehicle passenger injured in a collision with a train and suing train
engineers as well as rail company); Travis v. Irby, 326 F.3d 644 (5th Cir. 2003) (featuring a
plaintiff who was the mother of a driver killed when his car was struck by train at a rail
crossing and suing train engineer as well as rail company).
9
Because we resolve this appeal without looking beyond Kling/Walet’s pleadings, we
need not decide whether the district court erred either by piercing the pleadings without notice
to Kling/Walet and/or shifting the burden to plaintiffs regarding Martin’s improper joinder.

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Summary judgment may be granted if there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law. F ED. R.
C IV. P. 56(C). In determining whether summary judgment is appropriate, all of
the evidence and all of the factual inferences from the evidence are viewed in a
light most favorable to the party opposing the motion. Terrebonne Parish, 310
F.3d at 877. A genuine issue of material fact exists if the record, taken as a
whole, could lead a rational trier of fact to find for the non-moving party. Id.
Ordinarily, the party pleading prescription bears the burden of proving
that the plaintiff’s claims have prescribed. In re Moses, 788 So. 2d 1173, 1177-78
(La. 2001). However, because more than a year has elapsed between the time
of the tortious conduct and the filing of the tort suit, the burden shifts to
Kling/Walet to demonstrate prescription was suspended or interrupted. Id.
Kling/Walet assert that either or both the doctrine of contra non valentem and
the theory of continuing tort suspend or interrupt prescription in this case.
A. Doctrine of Contra Non Valentem
Kling/Walet first argue that the court erred in granting summary
judgment based on prescription because material issues of fact are in dispute
regarding the reasonableness of their delay in filing suit under the doctrine of
contra non valentem. Specifically, Kling/Walet argue that there is a factual
dispute about when they became fully aware of the extent and kind of
contamination on their land, and thus of their right to sue. Chevron responds
that Kling/Walet had knowledge for decades of alleged contamination of the
property and its lack of productivity, Kling/Walet could not rely on contra non
valentem to avoid the running of prescription. Chevron further argues that
contra non valentem is inapplicable because of the testimonial and documentary
evidence that Kling/Walet knew since the 1970s that the soil surrounding the
Well would not sustain crop growth.

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 No. 08-30043

The doctrine of contra non valentem was created by the Louisiana courts
as an exception to the general rules of prescription. Wimberly v. Gatrch, 635 So.
2d 206 (La. 1994). Damage is considered to have been sustained only when it
has manifested itself with sufficient certainty to support accrual of a cause of
action. “The doctrine of contra non valentem prevents the running of liberative
prescription where the cause of action is not known or reasonably knowable by
the plaintiff.” Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993); see also
Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. 2000). Louisiana
recognizes four situations where contra non valentem applies. Causby v. Perque
Floor Covering, 707 So. 2d 23, 25 (La. 1998). The two at issue here are:
(1) where the debtor has done some act effectually to prevent the creditor from
availing himself of his cause of action; and (2) where the cause of action is not
known or reasonably knowable by the plaintiff even though plaintiff’s ignorance
is not induced by the defendant. Id.
When prescription begins to run depends on the reasonableness of
Kling/Walet’s inaction. See Cole, 620 So. 2d at 1157; see also Terrebonne Parish
Sch. Bd., 310 F.3d at 884. As a judicial exception to the statutory rule of
prescription, Louisiana courts strictly construe contra non valentem and only
extend its benefits up to “the time that the plaintiff has actual or constructive
knowledge of the tortious act.” Eldredge, 207 F.3d at 743 (affirming summary
judgment of prescription where plaintiff noticed damage to land from tug-boat
company actions, yet took no further legal steps to stop the tort until two
decades later). Kling/Walet allege that Chevron misled them about the kind
and extent of contamination when they raised the issue of soil damage in 1973.
They further allege that the damage was not reasonably knowable (and
unknown) until within a year of filing the present suit.
We conclude that contra non valentem is inapplicable to Kling/Walet’s suit.
There is no evidence in the record showing that Chevron was aware of increasing

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contamination from salt or otherwise after the 1973 Release or acted to prevent
Kling/Walet from availing themselves of their cause of action in a timely
manner. In addition to those contamination problems Kling/Walet were aware
of at the time of the 1973 Release, Mr. Walet also testified in deposition about
his history of farming on the subject property and knowledge of low yields and
crop problems over the years since the Well was plugged. Documents from a
former Kling/Waletrepresentative mentioned Chevron’s “dumping salt water,
oily by-products, chemicals, on” the property and concerns about the “virtually
zero” productivity of the land. As early as the 1970s, Kling/Walet had
information “sufficient to excite attention and prompt further inquiry,” yet did
not investigate or bring their claims until now. See Eldredge, 207 F.3d at 743.
B. Continuing Tort
Kling/Walet further argue that a continuing tort has suspended the
running of prescription. Specifically, Kling/Walet argue that the pollution of
their land, like dumping foreign materials onto the property of another without
authority, constitutes a continuing trespass or nuisance. Chevron responds that
there is no continuing tort in this case because the alleged tortious conduct
ceased by the mid-1970s when Well operation ceased and the final release of the
lease at issue was recorded.
When the tortious cause of injury is a continuing one, under Louisiana law
prescription does not begin to run until the conduct causing that damage ceases.
Bustamento v. Tucker, 607 So. 2d 532, 542 (La. 1992). “When the damaging
conduct continues, prescription runs from the date of the last harmful act.”
South Cent. Bell Tel. Co. v. Texaco, Inc., 418 So. 2d 531, 532 (La. 1982).
Kling/Walet’s knowledge of their claim is immaterial to the running of
prescription in the case of continuing torts. Scott v. Am. Tobacco Co., Inc., 949
So. 2d 1266, 1280 (La. Ct. App. 2007).

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Louisiana courts have recognized that in some instances the unlawful
invasion of another’s property by hazardous waste falls in the category of
continuing trespass. See South Cent. Bell, 418 So. 2d at 533 (holding
prescription did not begin to run on tort claim by owner of underground gas
tanks at filling station for damages sustained by underground telephone cables
by gas leaking from the tanks until the leaking tanks were replaced).
Kling/Walet argue that Chevron deposited such waste on their property in
connection with its oil exploration, that Chevron no longer had permission to
keep waste on their property once the lease was terminated, and this continuing
failure to clean up the waste is the continuing tort. See M&A Farms, Ltd. v.
Ville Platte, 422 So. 2d 708, 711 (La. Ct. App. 1982) (“[T]he trespass continues
as long as the offending object remains on the premises, and the trespass is
terminated only by the removal of the object wrongfully placed there.”).
However, a “continuing tort is occasioned by unlawful acts, not the
continuation of the ill effects of an original, wrongful act.” Crump v. Sabine
River Auth., 737 So. 2d 720, 728 (La. 1999) (continuing tort theory did not apply
where property owner sued river authority claiming that canal dug on
authority’s property by third parties diverted water from the bayou flowing over
the owner’s property). “[F]or there to be a continuing tort there must be a
continuing duty owed to the plaintiff and a continuing breach of that duty by the
defendant.” Crump, 737 So. 2d at 728. Here, the Well was plugged and
abandoned on October 21, 1971. Kling/Walet entered into the 1973 Release with
Chevron after Chevron “restored the property to its original condition.” Because
the 1973 Release contained a three-year window for claims, prescription began
to run three years after the date of the 1973 Release.
Further, “the breach of the duty to right a wrong and make the plaintiff
whole simply cannot be a continuing wrong which suspends the running of
prescription, as that is the purpose of any lawsuit and the obligation of every

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tortfeasor.” Id. Louisiana law distinguishes between acts of trespass that
terminate and those that continue. For example, bulldozing a levee on plaintiff’s
property is a trespass but not a continuing trespass because no object or thing
was left behind on plaintiff’s property; in contrast, the construction of locks and
dams permanently flooding another’s land has been held a continuing tort.
Compare M&A Farms, 422 So. 2d at 711-12, with Cooper v. Louisiana Dep’t of
Public Works, 870 So. 2d 315, 323 (La. Ct. App. 2004). Similarly, leaving a
leaking gas tank underground to damage cables on the property is a continuing
trespass, while digging a canal on adjoining property is not. Compare South
Cent. Bell, 418 So. 2d at 533; with Crump, 737 So. 2d at 728. Thus, the question
is whether a continuing physical invasion of the property is present.
We are not persuaded that failure to clean up the contamination
constitutes such a continuing physical invasion under Louisiana law. Any
contamination of the Kling/Walet property caused by Chevron is the continuing
effect of prior conduct; the soil damage is unlike dumping garbage or litter on
another’s property. See Estate of Patout v. City of New Iberia,708 So. 2d 526 (La.
Ct. App. 1998), affirmed by, 738 So. 2d 544 (1999); Dore v. Jefferson Guar. Bank,
543 So. 2d 560, 562 (La. Ct. App. 1989). The contamination at issue in this case
is distinguishable from the leaking gas tank in South Central Bell. 418 So. 2d
at 533. In that case, the tanks at issue were leaking extensively and
continuously throughout the time period subject to litigation. In contrast,
Chevron plugged the Well in 1971. Further, Louisiana courts have
distinguished South Central Bell as being based on a theory of strict liability
under La. Civ. Code art 667, which is not applicable here. See Labatut v. City
of New Orleans, 686 So. 2d 1038, 1040 (La. Ct. App. 1996).

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Because Kling/Walet have not established an exception to prescription, we
affirm the award of summary judgment to Chevron on the basis that
Kling/Walet’s claims are time-barred.10
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.

10
Kling/Walet assert that they have stated two other claims under continuing trespass:
(1) duties of vicinage (duty owed by it due to its status as a mineral lessee); and (2) the duty
to disclose based on their contractual relationship. However, these arguments were not
presented to the district court and are therefore not properly before this court.

15