Burmaster v. Plaquemines Parish Government

• Court: Louisiana Supreme Court
• Writing for the Court: Calogero
• Citation: Burmaster v. Plaquemines Parish Government, 982 So.2d 795 (La. 2008)
• Decision Date: 21 May 2008
• Docket Number: No. 2007-CA-2432.,2007-CA-2432.
• Parties: Melvin J. BURMASTER v. PLAQUEMINES PARISH GOVERNMENT.

982 So.2d 795

Melvin J. BURMASTER v. PLAQUEMINES PARISH GOVERNMENT.

No. 2007-CA-2432.

Supreme Court of Louisiana.

May 21, 2008.

W. Eric Lundin, III, Parish Attorney, Michael Lawrence Mullin, Assistant Parish Attorney, for appellant.

Corona & Bonura, Mark Morovich Bonura, Metairie, Elizabeth Welsh Defley, Gelpi & Associates, Melvin Joseph Burmaster, New Orleans, for appellee.

James D. Caldwell, Tallulah, and Kathleen Megan Terrell, for amicus curiae, State of Louisiana

CALOGERO, Chief Justice.

This case involves the direct appeal of a district court judgment that declared unconstitutional as applied to plaintiff's individual and class actions, La. Act 545 of 2006, incorporated into the Louisiana Revised Statutes as 9:2800(H), which provides, in pertinent part, as follows:

(1) Notwithstanding any provision of law to the contrary, except for gross negligence or willful and wanton misconduct, no person shall have a cause of action based solely upon liability imposed under Civil Code Articles 2317 and 2317.1 against a public entity for any damages arising from hurricanes Katrina or Rita, including aftereffects of either hurricane and post-hurricane restoration, repair, cleaning, and construction.

We find that application of 2006 La. Act 545 to plaintiffs' claims that accrued, became vested, and were pending prior to June 22, 2006, the effective date of the act, would divest plaintiffs of their due process rights in violation of the Louisiana and United States Constitutions. Accordingly, we affirm the district court judgment denying the defendant's exception of no cause of action and remand the case to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This case was initiated on April 7, 2006, when plaintiff, Melvin J. Burmaster, filed an individual suit against defendant, Plaquemines Parish Government ("PPG"), in which he sought damages to his property, located on the east bank of the Mississippi River in Plaquemines Parish, Louisiana. Plaintiff alleged that his damages were caused by PPG's failure to maintain, or its improper maintenance, of its hurricane protection levee on the east bank in Plaquemines Parish. Plaintiff's petition further asserted that "PPG's failure to maintain the levee resulted in a breach of the levee which, but for PPG's negligence, would have been adequate to hold against the storm surge occasioned by Hurricane Katrina." Plaintiff asserted that PPG was "strictly liable"¹ under La. Civ.Code arts. 660, 2317, 2317.1, 2322, 2692, 2693 and 2695.² Finally, plaintiff asserted that PPG is liable in negligence.

On May 8, 2006, plaintiff filed his "First Amended and Supplemental Petition for Damages," in which he alleged that he was filing individually, and in addition "as representative of the class of all others similarly situated with respect to claims for damages sustained by them and others similarly situated." Plaintiff also amended his claims against PPG to allege "fault within the intent and meaning of [La. Civ. Code art. 2315]³ in the negligent design, construction, manufacture, operation, repair, maintenance and supervision of the levee."

On September 25, 2006, PPG responded by filing an "Exception of No Cause of Action," asserting that "plaintiff has no cause of action pursuant to 2317, 2317.1, and 2692 through 2695 of the Louisiana Civil Code." PPG's "Memorandum in Support of Exception of No Cause of Action" quotes La.Rev.Stat. 9:2800(H) and asserts that the legislature intended by adopting that statute "to relieve public entities from claims similar to the plaintiff's pursuant to Arts. 2317 and 2317.1." Concerning plaintiff's claims under La. Civ.Code arts. 2692 through 2695, PPG argued that plaintiff has no cause of action because those articles deal strictly with the landlord-tenant relationship and no allegation of such a relationship had been set forth in this case, such that those codal articles have no bearing on this case.⁴

On October 30, 2006, plaintiff filed a "Motion Opposing the Application of Acts 2006, No. 545 to this Litigation,"⁵ in which he asserted that "application of Acts 2006, Number 545 to this litigation and denying the plaintiff and the class of victims would divest the plaintiff and the class of victims of a vested substantive right which right accrued and was being litigated before the enactment of Acts 2006, Number 545." Further, plaintiff asserted that application of the act to this case "would violate constitutional due process safeguards afforded the plaintiff and the class of victims under both the state and federal constitutions." Plaintiff's motion noted that plaintiff and the members of the putative class "do not contend that Acts 2006, Number 545 is unconstitutional but that application of Acts 2006, number 545 to this litigation would be unconstitutional." Thus, plaintiff provided notice that a copy of the motion would be "filed with the Attorney General of the State of Louisiana in accordance with law by certified mail and notice given as to the hearing on the exceptions."⁶

On February 27, 2007, plaintiff filed an "Amended Motion Opposing the Application of Acts 2006, No. 545 To This Litigation." Following a hearing on PPG's exception of no cause of action on March 16, 2007, the district court issued judgment denying the exception. The transcript from the hearing includes the district judge's statement of his ruling that 2006 La. Act 545 "clearly does apply, that the act was unconstitutional, and the Exception of No Cause of Action should be denied."

PPG⁷ sought a direct appeal of the district court judgment in this court, pursuant to this court's appellate jurisdiction as set forth in La. Const. art. V, § 5(D).⁸ On August 31, 2007, this court issued a per curiam decision that dismissed the appeal because it was not properly before the court. Burmaster v. Plaquemines Parish Gov't, 97-1311, p. 1 (La.8/31/07), 963 So.2d 378, 378. The per curiam stated, in pertinent part, as follows:

Although the district court's oral reasons for judgment discuss the constitutionality of Act 545, it is well-settled law that the trial court's oral or written reasons form no part of the judgment....

Because there is no declaration of unconstitutionality in the district court's judgment, there is no basis for the exercise of this court's appellate jurisdiction.

Id. at 1-2, 963 So.2d at 379 (citations omitted). This court remanded the case to the district court for further proceedings.

On remand, the district court issued an amended judgment that found "that Act 545 of the 2006 Legislative Session applies to the claims raised in plaintiff's petition pursuant to LSA CC Arts. 2317 and 2317.1, and that said Act is unconstitutional." Thus, the district court denied PPG's exception of no cause of action. PPG filed a direct appeal of the amended judgment in this court.

Although the district court judgment now before this court does declare that 2006 La. Act. 545 "is unconstitutional," the district court found in this case only that that the act would be unconstitutional if applied to the plaintiff and the putative class. That finding is implicit in the district court's finding "that Act 545 of the 2006 Legislative Session applies to the claims raised in plaintiff's petition pursuant to LSA CC Arts. 2317 and 2317.1, and that said Act is unconstititutional." Further, the unconstitutionality of 2006 La. Act 545 is the only thing that was argued in the district court. Plaintiff has repeatedly stated that neither he nor the putative class members contend that 2006 La. Act 545 is unconstitutional on its face. Because the district court found only that the act would be unconstitutional if applied to plaintiffs' claims, this court's appellate jurisdiction under La. Const. art. V, § 5(D) is arguably not invoked. See D & A Constr. Co. v. Jefferson Davis Parish School Bd., 251 La. 257, 203 So.2d 712 (1967). Further, "[w]hen only the application ... to the particular subject matter is assailed, this Court is without appellate jurisdiction." Id.

However, this court has previously remanded this case to the district court for further proceedings, and later accepted PPG's appeal of the amended judgment, and has entertained oral argument. For those reasons and in the interest of judicial economy, we choose to convert PPG's appeal to a supervisory writ and treat the case as we would were we to have granted a writ to address whether 2006 La. Act 545 would be unconstitutional if applied to plaintiffs' claims. See, e.g., Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732 (La.1/19/05), 903 So.2d 392 (addressing constitutional issues under the court's supervisory jurisdiction).

PLAINTIFF'S STATUTORY ARGUMENTS

Although Louisiana courts generally possess the power and authority to decide the constitutionality of challenged statutory provisions, a court is required to decide a constitutional issue only "if the procedural posture of the case and the relief sought by the appellant demand that [it] do so." Ring v. State, Dept. of Transp. & Development, 02-1367, p. 6 (La.1/14/03), 835 So.2d 423, 428. Accordingly, "courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the decision of the case or controversy." Id. at 4, 835 So.2d at 426. Courts "should avoid constitutional rulings when the case can be disposed of on non-constitutional grounds." Id. At 4, 835 So.2d at 427. Therefore, if this case can be disposed of on the basis of a statutory argument (i.e., a non-constitutional ground), this court should base its decision on the statutory ground and reverse the district court's finding that La.Rev.Stat. 9:2800(H) is unconstitutional.

Plaintiff contends that the district court was not required to declare La.Rev. Stat. 9:2800(H) unconstitutional in order to dispose of this case. Instead, plaintiff sets forth three statutory...