Boudreaux v. STATE, DOTD

Decision Date26 February 2002
Docket NumberNo. 2001-C-1329.,2001-C-1329.
Citation815 So.2d 7,2002 LA 258
CourtLouisiana Supreme Court

Richard P. Ieyoub, Attorney General, Taylor, Porter, Brooks & Phillips, W. Luther Wilson, Harry J. "Skip" Phillips, John S. Campbell, Jr., Special Assistant Attorneys General, Baton Rouge, for Applicant.

Byard Edwards, Jr., Ponchatoula, Scandurro & Layrisson, Jean-Paul Layrisson, Timothy D. Scandurro, Stephen O. Scandurro, New Orleans, Andrew M. Edwards, II, Ponchatoula, Guglielmo, Marks, Schutte, Terhoeve & Love, Henry G. Terhoeve, Baton Rouge, for Respondent.

Charles S. McCowan, Jr., Donna Vandever Yelverton, Baton Rouge, for Amicus Curiae.


This per curiam addresses whether relator, the State of Louisiana Department of Transportation and Development (DOTD), abandoned its claims of alleged errors originally advanced in its writ application to this Court, when it urges different errors in its brief, after we granted a writ of certiorari. Finding all but one of the errors alleged in the writ application not briefed, we find those errors abandoned because they were not argued in brief for oral argument. We further find that in order to reach the merits urged in relator's brief after certiorari was granted, we would have to address questions that were neither presented in the application for certiorari nor fairly included in the questions that were presented. Accordingly, we dismiss our writ of certiorari.

In its writ application to this Court on May 4, 2001, DOTD urged three writ grant considerations: (1) the claims of the class members were prescribed pursuant to LA. REV.STAT. ANN. § 9:5624; (2) the trial court erred when it refused to allow DOTD to present certain evidence and the appellate court erroneously found that DOTD failed to proffer evidence on this issue; and (3) the trial and appellate courts erred when they failed to retroactively apply LA. CIV.CODE ANN. art. 667, as amended in 1996.

Now DOTD makes numerous other arguments before this Court, and only argues one of the previously urged writ grant contentions, namely the lower courts' failure to retroactively apply LA. CIV.CODE ANN. art. 667, as amended in 1996.2 In addition, for the first time DOTD filed in this Court the declinatory exception of lack of subject matter jurisdiction over the non-inverse expropriation claims.3

Except for the declinatory exception of lack of subject matter jurisdiction and the peremptory exceptions, two of which, prescription and res judicata, must be specially pleaded,4 we cannot consider contentions raised for the first time in this Court which were not pleaded in the court below and which the district court has not addressed. Krauss Co. v. Develle, 236 La. 1072, 110 So.2d 104, 105-06 (1959); Weingart v. Delgado, 204 La. 752, 16 So.2d 254, 256 (1943); Gaines v. Crichton, 187 La. 345, 174 So. 666, 668 (1937); Succession of Quinn, 183 La. 727, 164 So. 781 (1935).

The Louisiana Supreme Court has general supervisory jurisdiction over all other courts. LA. CONST. ART. V, § 5(A).5 The grant or denial of an application for supervisory writs rests within the sound judicial discretion of this Court. LA. SUP. CT. R. X, § (1)(a).6 Although this Court has broad authority to exercise its general supervisory jurisdiction, we carefully screen writ applications under the criteria detailed in LA. SUP.CT. R. X, § 1(a).7 As directed in LA. SUP.CT. R. X, § 1(b), "[t]he application for writs shall address, in concise fashion, why the case is appropriate for review under the considerations stated in subsection (a) above." (Emphasis added). As further provided in civil cases, LA. SUP.CT. R. X, § 3(3) requires the applicant to submit assignments of error and "[a]n argument of each assignment of error on the facts and law, addressing particularly why the case is appropriate for review under the considerations stated in Section 1(a) of this rule." (Emphasis added). This procedure provides a standard to aid us in the exercise of our discretionary authority.8 In the present case, DOTD, with the exception of its argument about the retroactive application of LA. CIV.CODE ANN. art. 667, chose not to argue in it its brief filed in anticipation of oral argument the two other issues it addressed in its memorandum in support of its writ application.

Even if LA. CIV.CODE ANN. art. 667 is applicable (the trial court relied upon LA. CIV.CODE ANN. arts. 655 and 656, the codal articles relevant to the servitude of drain, and DOTD did not raise Article 667 as an issue on appeal), all of the appellate courts that have addressed the 1996 amendments to LA. CIV.CODE ANN. art. 667 have concluded that the changes were substantive and subject to prospective application only. Carr v. Oake Tree Apartments, 34,539 (La.App. 2 Cir. 5/9/01), 786 So.2d 230; Hunter v. Town of Sibley, 32,075 (La.App. 2 Cir. 10/29/99), 745 So.2d 820, writ denied, 99-3351 (La.2/18/00), 754 So.2d 965; Mossy Motors, Inc. v. Sewerage & Water Bd. of the City of New Orleans, 98-0495 (La.App. 4 Cir. 5/12/99), 753 So.2d 269, writ denied, 99-2102 (La.10/29/99), 749 So.2d 638; Jackson v. Beasley, 30,359 (La.App. 2 Cir. 4/8/98), 712 So.2d 162; Small v. Baloise Ins. Co., 96-2484 (La.App. 4 Cir. 3/18/98), 753 So.2d 234. Even in its brief now before us, DOTD fails to cite any Louisiana cases that have sanctioned the retroactive application of LA. CIV.CODE ANN. art. 667. Accordingly, we find no merit to DOTD's contention in this regard.

Even though this Court does not have a specific court rule to address abandonment of an assignment of error as do the appellate courts of this state,9 we find it within our authority to effect the same result. It is axiomatic that our rules are fashioned to assist us in the exercise of our discretionary jurisdiction. It is for that reason that we promulgated rules that mandate assignments of error in the application for writs and a memorandum which addresses with particularity the reasons why we should exercise our discretionary jurisdiction. This procedure allows for the best use of our judicial function in developing Louisiana jurisprudence. Correlatively, if this Court is to sharpen the focus on those issues most worthy of consideration and hasten the decisional process, it is imperative that we not be blind sided after we grant a writ application10 with questions which did not appear in the application for a writ of certiorari.11 Accordingly, we find that DOTD has abandoned the prescription argument and its argument as to the lower courts' erroneous evidentiary rulings it made in its application for writ of certiorari because it chose not to brief these issues for oral argument. Furthermore, we find the additional questions briefed for oral argument, but not contained in the original writ application, are not properly before us. Therefore, we dismiss our writ of certiorari.

Notwithstanding our dismissal, DOTD has further filed a declinatory exception in this Court, urging that the Louisiana courts do not have subject matter jurisdiction over the non-inverse expropriation claims.12 See n. 2, supra, recognizing that under LA. CODE CIV.PROC. ANN. art. 925(C) the lack of subject matter jurisdiction is not waived if not pleaded in the trial court. We now turn our attention to that assertion.

DOTD, asserting an exception to the Federal Tort Claims Act, 28 U.S.C. § 2674,13 contends that it was a contractor who merely followed the federal government's plans and specifications for the construction of Interstate 12. Citing several federal appellate cases, it contends that the government's selection of a design or approval of a design is a discretionary function to which immunity attaches.14 As such, DOTD argues that it was entitled to share in the federal government's privilege of immunity established in 28 U.S.C. § 2680.15 Relying on Mundy v. United States, 983 F.2d 950 (9th Cir.Cal.1993),16 DOTD asserts that the proper procedural vehicle to raise the government contract defense is to contest the trial court's subject matter jurisdiction to hear the case.17

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. LA. CODE CIV. PROC. ANN. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. LA.CODE CIV. PROC. ANN. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties or waived; a judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.18 LA.CODE CIV. PROC. ANN. arts. 3 and 925. See also Whittenberg v. Whittenberg, 97-1424 (La.App. 1 Cir. 4/8/98), 710 So.2d 1157, 1158

; Johnson v. Vinson Guard Service, Inc., 577 So.2d 56, 58 (La.App. 1 Cir.1990),

writ denied,

578 So.2d 915 (La.1991). The issue of subject matter jurisdiction addresses the court's authority to adjudicate the cause before it; the issue may be considered at any time, even by the court on its own motion, at any stage of an action. Whittenberg, 710 So.2d at 1158; Tran v. Schwegmann's Giant Super Market, 609 So.2d 887, 889 (La.App. 4 Cir.1992). See also Gravois v. Travelers Indem. Co., 173 So.2d 550, 553 (La.App. 1 Cir.),

writ denied,

247 La. 1016, 175 So.2d 301 (1965). Moreover, it is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. Renno v. Evans, 580 So.2d 945, 947 (La.App. 2 Cir.1991).

Irrespective of the proper procedural vehicle to raise the question presented herein (see n. 14, supra), we find that DOTD fails to...

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