Carbo v. City of Slidell

• Decision Date: 08 January 2003
• Docket Number: No. 2001 CA 0170.,2001 CA 0170.
• Citation: 844 So.2d 1
• Parties: M. CARBO and Linda S. Carbo v. CITY OF SLIDELL, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1

844 So.2d 1

M. CARBO and Linda S. Carbo v. CITY OF SLIDELL, et al.

No. 2001 CA 0170.

Court of Appeal of Louisiana, First Circuit.

January 8, 2003.

Writ Denied April 25, 2003.

Joseph E. Stockwell, III, Baton Rouge, Counsel for Plaintiffs/Appellants Robert & Linda Carbo.

Dwight C. Paulsen, III, New Orleans, Counsel for Defendants/Appellees Greg S. Lyons & Sunmark Construction Co.

Neil C. Hall, III, Covington, for St. Tammany Parish.

Timothy Mathison, Slidell, for City of Slidell.

Before: FITZSIMMONS, KUHN, DOWNING, CIACCIO¹ and LANIER², JJ.

LANIER, J.

This is an action for an injunction. The plaintiffs, Robert M. and Linda S. Carbo (the Carbos), seek the removal of alleged obstructions of natural drainage erected by the defendants that cause flooding on the Carbos' property. In the alternative, the Carbos pray for compensatory damages if the court finds that injunctive relief is "greatly disproportionate in cost to the actual damages caused the plaintiffs, and/or the injunctive relief due the plaintiffs is found to have a substantial negative effect on third parties . .." The original defendants ³ are: (1) the City of Slidell (City); (2) the Parish of St. Tammany (Parish); (3) Gregg S. Lyons (Lyons); and (4) Sunmark Construction, Inc. (Sunmark). Lyons and Sunmark filed a motion for summary judgment asserting that they performed some of the construction work about which the Carbos complain, the work was performed with the consent of the City and the work was performed gratuitously.⁴ The Parish filed a motion for summary judgment asserting it did not create the obstructions about which the Carbos complain, the constructions complained of are located entirely in the corporate limits of the City and "the Parish did not have the care, custody or control over the area in question and owed no duty to petitioners."

The trial court granted summary judgments in favor of the Parish, Lyons and Sunmark and dismissed the Carbos' injunction claims against them with prejudice. The trial court gave the following rationale for dismissing the injunction action against Lyons and Sunmark:

The court finds as a matter of law that Lyons was a mandatory [sic], and that his actions were ratified by the City of Slidell. As a matter of law, he cannot be held liable for his actions in repairing the berm. The Court further notes that injunctive relief is not applicable to Lyons or Sunmark, since they neither own now [sic] control the berm and canal. The flooding of which plaintiff [sic] complains [sic] long precedes the actions of Gregg Lyons.

The trial court gave the following rationale for dismissing the injunction action against the Parish:

It [the Parish] argues that because it neither owns the land nor the canal which are the subject of the suit, injunctive remedies under codal articles pertaining to the rights and obligations of owners of estates are not available. The court agrees with this rationale. The court also agrees that the Gaharan case is inapplicable, partially because the City and Parish have the right to alter natural drainage, and certainly because the Parish does not own the land or the canal in question. The Parish has a right of way granted in 1948 for the purpose of drainage. The Court also agrees that the natural drainage can be altered by statute and by agreement, both of which have occurred. The court also finds that the canal is not a servient estate.

The Carbos took this devolutive appeal.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B; Calhoun v. Hoffman-La Roche, Inc., 98-2770, p. 4 (La.App. 1 Cir. 2/18/00), 768 So.2d 57, 60-61, writ denied, 2000-1223 (La.6/23/00), 765 So.2d 1041. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, and is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2). After adequate discovery, or after a case is set for trial, a motion that shows there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, shall be granted. La. C.C.P. art. 966 C(1). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

Appellate courts review summary judgments de novo under the same criteria that govern the trial judge's consideration of whether a summary judgment is appropriate. Doucet v. National Maintenance Corp., 2001-1100, p. 5 (La.App. 1 Cir. 6/21/02), 822 So.2d 60, 65.

FACTS

The evidence presented by the parties supporting and opposing the motions for summary judgment shows the following.

The Carbos allege, and the evidence shows, that they own property adjacent to the eastern corporate limits of the City. A survey map attached to the petition indicates the Carbos' property is in Lot 2 of Section 11, T9S, R14E, in St. Tammany Parish. This map also shows that the W-14 Drainage Canal enters the Carbos' property on its northern side, traverses the property in a southwesterly direction and exits the property on its west side where the property is adjacent to the City. The obstructions about which the Carbos complain are located on the west side of the W-14 canal.⁵

The Parish asserts the W-14 canal was constructed on the Carbos' property pursuant to the authority of a conventional servitude granted by V.C. Scogin, an ancestor in title to the Carbos.⁶ This servitude (right of way) provides as follows:

Right of Way Grant. State of Louisiana, Parish of St. Tammany, Know all men by these presents: That V.C. SCOGIN, does by these presents grant unto the Parish of St. Tammany, through its Police Jury, the necessary right of way for the construction, maintenance and improvement of drainage facilities through and across my property in: part of the West one half of the southwest one quarter of Section 11-T. 9. S.-R. 14. E., St. Tammany Parish, Louisiana, being understood that the Police Jury will construct and maintain a bridge across the canal at the extension of Blanchard Street, in Slidell, Louisiana; Present fence to be moved to East line of Right of Way H.O.F. WIT. V.C.S.

According to Parish Wide Drainage Program Map File No. Diversion Canal.

The consideration for this grant is the expectation of benefits to said property as a result of the drainage improvement program. (Emphasis added.)

Pursuant to interrogatories propounded by Lyons and Sunmark, the Carbos gave the following answers:

INTERROGATORY NO. 2:

Please state each and every date that any of plaintiffs' property east of the W-14 canal was damaged by flood water as alleged in Paragraphs III-G, III-J, III-K, III-O, and III-S of the petition.

ANSWER TO INTERROGATORY NO. 2:

The home [sic] was built in 1965 and the plaintiffs moved into home in November of 1965. As early as 1968 the plaintiffs experienced sporadic flooding of their property which continued through 1973. In 1973, the constructions complained of in the plaintiffs' petition were initiated, exacerbating the plaintiffs' flooding problems as more and more obstructions were completed thereafter to present.

The plaintiffs do not have records of exact dates when their residence flooded or sustained flood damage. However, the plaintiffs' land has flooded countless times over the time periods indicated and their residence has flooded at least five (5) times.

Unfortunately actual invoices, receipts and photographs evidencing the flood damages prior to 1995 were destroyed by Harold M. Wheelahan, III, a previous attorney who did not preserve their files.

INTERROGATORY NO. 3:

Please state whether plaintiffs' home has ever flooded, and, if so, please state:

a. The date or dates the home flooded;

b. The reason the home flooded;

c. Whether the flood damage was repaired, and if so, by whom and at what cost; and

d. Whether you made a claim against your homeowners' insurer or flood insurer, and, if so, the name of the insurer, the amount of the claim and the amount received.

ANSWER TO INTERROGATORY NO. 3:

a. House flooded four times between 1968 and 1973; and flooded in May of 1995 b. Obstructions of natural drainage as delineated in the plaintiffs' petition;

c. Flood damage repaired by self, except for 1995 flood; and

d. Filed one claim in either 1972 or 1973 against the National Flood Insurance Program and was awarded approximately $800.00, and also filed a claim for the May 1995 flood.

INTERROGATORY NO. 4:

For each item of damages claimed in Paragraph VI-A of your petition, please give the following information:

a. The date or dates the alleged damage was sustained;

b. The amount of the damages sustained;

c. The cost of repair;

d. The cost for the construction and maintenance of the levee, pumps and plumbing referred to in Paragraph VI-A(2) of the petition; and

. . . .

ANSWER TO INTERROGATORY NO. 4:

a. House has sporadically flooded from 1968 to present;

b. For floods prior to May of 1995, the plaintiffs sustained damages including carpet, sheetrock, cabinets,...