Lonatro v. Orleans Levee Dist.

• Decision Date: 11 August 2011
• Docket Number: Civil Action No. 11–357.
• Citation: 809 F.Supp.2d 512
• Parties: Terry and Nida LONATRO, et al. v. ORLEANS LEVEE DISTRICT, Southeastern Louisiana Flood Protection Authority–East, and United States Army, Corps of Engineers.
• Court: U.S. District Court — Eastern District of Louisiana

809 F.Supp.2d 512

Terry and Nida LONATRO, et al.

v.ORLEANS LEVEE DISTRICT, Southeastern Louisiana Flood Protection Authority–East, and United States Army, Corps of Engineers.

Civil Action No. 11–357.

United States District Court, E.D. Louisiana.

Aug. 11, 2011.

Randall A. Smith, Laura Hawkins Davis, Smith & Fawer, LLP, New Orleans, LA, for Terry and Nida Lonatro, et al.

Thomas P. Anzelmo, McCranie, Sistrunk, Metairie, LA, Kevin Paul Kress, Kyle P. Kirsch, McCranie, Sistrunk, Glenn Kenneth Schreiber, U.S. Attorney's Office, New Orleans, LA, for Orleans Levee District, Southeastern Louisiana Flood Protection Authority–East, and United States Army, Corps of Engineers.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court is Defendants Orleans Levee District and Southeastern Louisiana Flood Protection Authority–East's Motion to Dismiss (Rec. Doc. 19), and Plaintiffs' Opposition (Rec. Doc. 28), on supporting memoranda, without oral argument. Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that Defendants' Motion to Dismiss (Rec.Doc.19) should be DENIED.

PROCEDURAL HISTORY AND BACKGROUND FACTS:

The parties have submitted details of what appears to be a long and complex journey for this case. However, an abbreviated version suffices for present purposes. Plaintiffs own land on Bellaire Drive in Orleans Parish. In and abutting their backyards is the levee/floodwall that runs alongside the 17th Street Canal (the “Canal”), which is a man-made non-navigable waterway. After Hurricane Katrina, Defendant Orleans Levee District (“OLD”) ¹ announced its intention to remove fences, trees, and other items from portions of Plaintiffs' land either abutting against or part of the levee (the “Levee”) that runs alongside the Canal. The alleged purpose was the performance of critical flood control work. This was only the beginning of a series of events that would lead to two separate state court lawsuits, later to be consolidated into one case that was eventually removed to this Court.

Prompting the initial suit in state court in 2008 was the announcement of OLD's previously mentioned intentions. The landowners filed suit against OLD for injunctive relief and compensation on July 7, 2008 (the “Demolition Suit”). The request for preliminary injunction was denied; therefore, the U.S. Army Corps of Engineers (the “Corps”) commenced the work pursuant to a right-of-entry granted by OLD. Plaintiffs and Defendants filed cross-motions for summary judgment, arguing over the existence vel non of a legal servitude over the landowners' property. The state district court granted the landowners' motion and denied the Defendants' motion in a judgment dated June 3, 2009. The Defendants filed for a supervisory writ with the Louisiana Fourth Circuit Court of Appeal, which granted the writ, reversing and remanding to the trial court. It found that OLD had a “ St. Julien ” servitude over the Canal levees. The Louisiana Supreme Court denied the landowners' application for supervisory writs in March 2010. After remand, the trial court never signed a judgment.

The second state court suit (the “Deep Soil Mixing Suit”) was filed on January 5, 2011 due to OLD's announcement that it intended to perform extensive, critical, new strengthening and remediation flood control work on and around the landowners' property, to include the building of structures and “deep soil mixing,” a process using a giant mixer to dig up to depths of 40 to 80 feet into the ground. OLD and SLFPA–E granted the Corps a right-of-entry to perform the work. In the Deep Soil Mixing Suit, the Plaintiffs sought preliminary and permanent injunctive relief. The Deep Soil Mixing Suit and the Demolition Suit were then consolidated. By judgment dated January 24, 2011, the trial court denied the Plaintiffs' request for preliminary injunction pertaining to the Deep Soil Mixing Suit on grounds of the absence of a necessary party—the Corps. On February 10, 2011, the landowners amended their petition to join the Corps as a party, and the Corps filed its Notice of Removal shortly thereafter.

Pursuant to the Notice of Removal, the consolidated case is before this Court. All defendants filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), including the present Motion to Dismiss (Rec.Doc.19). The two issues presented in the present motion to dismiss are (1) whether this case should be dismissed as res judicata or under the “law of the case” doctrine, and (2) whether Defendants possess a St. Julien servitude that prevents Plaintiffs from stating a claim upon which relief may be granted.

THE PARTIES' ARGUMENTS:

Defendants' main argument is that Plaintiffs have no right of action because the Defendants hold a valid servitude over the entire 17th Street Canal Levee for maintenance purposes under the St. Julien doctrine. They argue that the servitude gives them the authority to grant the Corps rights-of-entry to the Levee so that it can carry out critical levee remediation to strengthen the flood control system. The St. Julien doctrine allows a public or quasi-public corporation with expropriatory powers to acquire a servitude over another person's land where the landowner consents or acquiesces in the construction of facilities on the land for a public purpose.

OLD and SLFPA–E argue that a St. Julien servitude exists because the jurisprudential requirements are fulfilled: (1) OLD is a public or quasi-public body with expropriatory powers; (2) the previous landowners have consented or acquiesced in construction of the Levee; and (3) the Levee is a facility constructed in the public interest. They also argue that such a servitude is not limited to creation upon riparian lands and can be established even absent a writing. They assert that this servitude over the Levee extends onto the Plaintiffs' properties on Bellaire Drive. In failing to object, the original owners at the time of Levee construction acquiesced in the creation of the servitude. Defendants point to the Louisiana Fourth Circuit supervisory writ opinion that affirmed the existence of the servitude, and maintain that it is not necessary that the present landowners consent to the servitude. Further, the right to compensation is personal to the landowners at the time of levee construction. Thus, Plaintiffs have no right of action because it is undisputed that none of the Plaintiffs were the original landowners at the time of Levee construction and the servitude's establishment.

The Plaintiffs in opposition respond that OLD does not possess a valid servitude. They criticize the Louisiana Fourth Circuit decision as a failure to follow binding Louisiana Supreme Court precedent, namely, Board of Commissioners v. Baron, 236 La. 846, 109 So.2d 441 (1959), which they claim establishes that levee districts do not possess a servitude over the non-riparian property fronting the 17th Street Canal. They read Baron as stating that a levee district cannot compel landowners to remove improvements located adjacent to the Canal. They argue that Baron is controlling and was the only existing authority at the time the Levee was built, and that therefore its existence proves the original landowners' lack of consent to the creation of a St. Julien servitude. They also argue that Louisiana Revised Statutes section 38:225, a quasi-criminal statute forbidding certain landowners from placing obstructions within six feet of a levee, does not grant a levee servitude to OLD. Nor does Louisiana Civil Code article 665 grant a levee servitude because that article only applies to navigable waterways.

Plaintiffs also argue that the St. Julien doctrine does not apply to the facts of this case. They state that the only record evidence that is even pertinent to the issue of consent or acquiescence is the bare existence of the Levee on the landowners' property as of some undetermined date. The former landowners' silence is not indicative of consent to a servitude. The existence of the Baron decision “on the books” was a declaration from the highest court of the State that no servitude then existed. Additionally, the St. Julien doctrine cannot apply because of the absence of evidence of actual possession and use of the servitude by Defendants. In the alternative, Plaintiffs' right to compensation is based on the fact that the creation of the servitude was a taking. In addition to compensation, the Plaintiffs are owed damages from the ongoing construction work that forms the basis of the Deep Soil Mixing Suit.

Defendants also argue that because the Louisiana Fourth Circuit affirmed as lawful the Defendants' actions in granting the rights-of-entry under their servitude, Plaintiffs' claims must be dismissed. They argue that the Louisiana appellate decision is a final judgment accorded the status of res judicata. Further, under the “law of the case” doctrine, because the Louisiana appellate court decided upon the St. Julien rule of law, that decision should govern the current proceedings in federal court.

Plaintiffs respond that neither res judicata nor law of the case bar the present suit. First, res judicata cannot be pled via a motion to dismiss. Second, for the court to consider information “outside the complaint,” it must treat the motion to dismiss as one for summary judgment. Third, the requirements for res judicata are not met, in that (1) there is no final judgment; (2) the claims in the Deep Soil Mixing Suit did not exist at the time of the Louisiana appellate decision that granted OLD's supervisory writ application; and (3) even if res judicata would otherwise apply, exceptional circumstances justify relief from its application. Further, the law of the case doctrine is inapplicable because its application is discretionary and should be refused here because the Louisiana Fourth Circuit decision was clearly erroneous and manifestly unjust in determining that a servitude...