Alonzo v. State ex rel. Dnr

• Decision Date: 08 September 2004
• Docket Number: No. 2003-CA-0553.,2003-CA-0553.
• Citation: 884 So.2d 640
• Parties: Gene ALONZO, Malcolm Assevedo, Richard J. Assevedo, Jr., George Barisich, Joseph Barisich, Dale Borden, Harry D. Borden, Donnie Campo, William Caywood, Pero Cibilic, Clear Water Oyster Inc., Joseph Collins, Ramo Domingo, et al. v. STATE of Louisiana and the DEPARTMENT OF NATURAL RESOURCES.
• Court: Louisiana Supreme Court

884 So.2d 640 Gene ALONZO, Malcolm Assevedo, Richard J. Assevedo, Jr., George Barisich, Joseph Barisich, Dale Borden, Harry D. Borden, Donnie Campo, William Caywood, Pero Cibilic, Clear Water Oyster Inc., Joseph Collins, Ramo Domingo, et al.
v.
STATE of Louisiana and the DEPARTMENT OF NATURAL RESOURCES. No. 2003-CA-0553. Court of Appeal of Louisiana, Fourth Circuit. September 8, 2004.

Appeal from the 34th Judicial District Court, St. Bernard Parish, No. 79-080, Division "B", Manuel A. Fernandez, J.

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Glenn E. Diaz, Carlos Zelaya, David C. Vidrine, Chalmette, LA, and Danial C. Vidrine, Baton Rouge, LA, and J. Wayne Mumphrey, Law Offices of J. Wayne Mumphrey, Chalmette, LA, for Plaintiffs/Appelles.

Richard P. Ieyoub, Attorney General State of Louisiana, Andrew C. Wilson, Jedd S. Malish, Special Assistant Attorney General State of Louisiana, Burke & Mayer, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).

JAMES F. McKAY III, Judge.

On May 2, 1996, fifty-three (53) oyster leaseholders with oyster leases on State water bottoms on the St. Bernard side of Breton Sound, and within Lake Borgne east of the Mississippi River Gulf Outlet (MRGO) filed suit against the State through the Department of Natural Resources (DNR), alleging adverse effects including oyster mortality, not only from the Caernarvon freshwater diversion structure, but also from the Violet siphon.¹

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On January 11, 2002, the trial court heard seven motions in this case and later issued seven judgments, all of which were adverse to the DNR. The first of these was a partial summary judgment, which awarded $291,828,840.00 to plaintiffs with oyster leases located in the Breton Sound area east of the Mississippi River and west of MRGO in St. Bernard Parish; this judgment relied on Avenal v. State, 2001-0843, (La.App. 4 Cir. 10/15/03), 858 So.2d 697, writ granted, 2003-3521 (La.1/30/04), 864 So.2d 638, having res judicata effect in the instant case.² The second judgment struck DNR's right to a jury trial on the grounds that the plaintiffs' claims were "admiralty and maritime" in nature. The third judgment, issued on January 22, 2002, denied the DNR's motion to continue. A fourth judgment denied the DNR's motion for summary judgment and peremptory exception based upon prescription. The three other rulings included the denial of the State's motion for summary judgment seeking contractual indemnity, as well as a motion for summary judgment based upon collateral estoppel and takings theories, and a motion to enlarge or amend the State's answer to the plaintiffs' amended petition. The State sought to have these certified as final judgments for purposes of an immediate appeal. This relief was initially denied, but later the trial court designated the res judicata judgment as final, sua sponte. The plaintiffs' remaining claims related to oyster leases in Lake Borgne and other outlying areas remained set for trial on January 20, 2002. For ease of administration, the remaining claims would be tried in two groups or "flights" of plaintiffs to be determined by the plaintiffs. The "first flight" would take place on January 20, 2002. The "second flight" trial would take place at a later date.

Prior to the trial of the "first flight," the State discovered a memorandum from March 17, 1989, which had been prepared by Judge Manuel Fernandez, the presiding trial court judge, while he was an attorney working in the Governor's Office; this document had directed the Louisiana Department of Wildlife and Fisheries (LDWF) to place an indemnity clause in the LDWF lease form in favor of the State. On the basis of this document, the State filed a motion to recuse Judge Fernandez. Judge Fernandez referred this motion to the Clerk of Court who randomly allotted the motion to Judge Robert A. Buckley. Judge Buckley ruled that the motion was untimely because it was filed after the first partial judgment on the res judicata issue. On review, this Court ruled that one memorandum, standing alone, was not sufficient basis for recusal.³

The "first flight" trial proceeded on January 24, 2002. After the evidence was presented, the trial court took the matter under advisement and on February 21, 2002, the trial court issued a partial judgment in favor of the 20 "first flight" plaintiffs in the amount of $226,528,221.00 plus interest, costs and attorney's fees. This judgment awarded each plaintiff a uniform $8,441.00 per acre and a separate figure for loss of production based upon a uniform production rate, using the formula of the plaintiffs' expert, Ed Cake, regardless of the plaintiffs' actual production. Shortly thereafter, the DNR filed a motion to

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have this partial judgment designated as final so that the DNR could seek an immediate appeal; this motion was denied in open court.

Prior to the commencement of the "second flight" trial, the State became aware that Judge Fernandez previously had an attorney-client relationship with Ed Robin, one of the plaintiffs in this case. The State also learned of the existence of another memorandum; this memorandum from the LDWF Secretary replied to Judge Fernandez's earlier memorandum and indicated that the LDWF had implemented his instruction to insert the indemnity clause into the LDWF lease form. Thereafter, on March 15, 2002, the State filed a second motion to recuse Judge Fernandez. Judge Fernandez referred this motion to Judge Wayne Cresap, the duty judge on that day. Judge Cresap heard and denied the motion on March 21, 2002. On writs, this Court reversed because Judge Fernandez referred the motion directly to Judge Cresap rather than allowing it to be randomly allotted as required by La. C.C.P. art. 155(B). However, trial of the "second flight" also proceeded on March 21, 2002 and was completed within just a few days with the trial court taking the matter under advisement. On remand, the second motion to recuse was randomly allotted to Judge Buckley who on August 14, 2002 denied the motion as untimely because it was filed after two judgments, i.e., the first partial judgment and the motion for partial summary judgment on res judicata, and the second partial judgment related to the "first flight" plaintiffs. In response to Judge Buckley's ruling, the DNR filed two separate writ applications. This Court remanded the motion to recuse for a second time to the district court for a hearing within 10 days of the order, which Judge Buckley set for October 29, 2002. Judge Buckley denied the motion to recuse on December 23, 2002.

On January 27, 2003, the DNR presented the trial court with a motion and order for appeal of the judgment related to the "first flight" of plaintiffs as well as the judgment related to the "second flight" of plaintiffs. The DNR also sought to have the trial court acknowledge the State's statutory exemption from the filing of any bond. The trial court crossed out any right to appeal the judgment of February 21, 2002 related to the "first flight" of plaintiffs, the right to appeal any collateral or related rulings, and the State's statutory exemption from filing the necessary bond. Thereupon, the State filed an application for a writ of mandamus to force the trial court to issue the appeal order for the judgment of February 21, 2002 on the "first flight" of plaintiffs and rescind the implied requirement that the State furnish a bond; the State also filed an application for supervisory writs and writs of review on the trial court's denial of the motion to recuse. This Court granted most of the relief requested but the motion to recuse was deferred to the merits of the appeal.⁴

On appeal, the defendant's raise the following assignments of error: 1) the trial court committed clear and manifest error finding any causative link between the Caernarvon freshwater diversion structure and any allegedly adverse effects to oyster leases in Lake Borgne, and also erred as a matter of law in the standard of proof for causation; 2) the trial court erred as a matter of law in failing to recognize that the plaintiffs had no legal right to recover from the State for the cost of restoring the State's own water bottoms; 3) the trial court erred as a matter of law in allowing the plaintiffs to recover sums well in excess

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of the fair market value of the plaintiffs' oyster leases; 4) the trial court erred as a matter of law in identifying this matter as an "admiralty and maritime" claim when this matter had absolutely nothing to do with the maritime industry; 5) the trial court erred as a matter of law in refusing to recognize that the...