Lowenburg v. Sewerage & Water Bd. of New Orleans

• Decision Date: 29 July 2020
• Docket Number: C/W: NO. 2019-CA-0526,C/W: NO. 2019-CA-0525,NO. 2019-CA-0524,C/W: NO. 2019-CA-0527,2019-CA-0524
• Parties: ANNE LOWENBURG, JUDITH LOWENBURG, WIFE OF AND TOM LOWENBURG, SARAH LOWMAN, JACK STOLIER, WILLIAM B. TAYLOR, III, M.D. AND BARBARA WEST v. SEWERAGE & WATER BOARD OF NEW ORLEANS CONSOLIDATED WITH: ARIYAN, INC. D/B/A DISCOUNT CORNER v. SEWERAGE & WATER BOARD OF NEW ORLEANS CONSOLIDATED WITH: K&B LOUISIANA CORPORATION D/B/A RITE AID CORPORATION v. SEWERAGE AND WATER BOARD OF NEW ORLEANS CONSOLIDATED WITH: M. LANGENSTEIN & SONS, INC., PRYTANIA LIQUOR STORE, INC., WEST PRYTANIA INC. D/B/A PRYTANIA MAIL SERVICE, BARBARA H. WEST, FINE ARTS MANAGEMENT, L.L.C. D/B/A PRYTANIA THEATRE, PASCAL'S MANALE RESTAURANT, INC., SUPERIOR SEAFOOD AND OYSTER BAR, L.L.C., SUPERIOR BAR & GRILL, INC., THE FRESH MARKET, INC., BRITISH ANTIQUES, L.L.C., BENNET POWELL AND THE MAGIC BOX, LTD. v. SEWERAGE & WATER BOARD OF NEW ORLEANS
• Court: Court of Appeal of Louisiana — District of US

ANNE LOWENBURG, JUDITH LOWENBURG,WIFE OF AND TOM LOWENBURG, SARAH LOWMAN,JACK STOLIER, WILLIAM B. TAYLOR, III, M.D. AND BARBARA WEST v. SEWERAGE & WATER BOARD OF NEW ORLEANS

CONSOLIDATED WITH:

ARIYAN, INC. D/B/A DISCOUNT CORNER v. SEWERAGE & WATER BOARD OF NEW ORLEANS

CONSOLIDATED WITH:

K&B LOUISIANA CORPORATION D/B/A RITE AID CORPORATION v. SEWERAGE AND WATER BOARD OF NEW ORLEANS

CONSOLIDATED WITH:

M. LANGENSTEIN & SONS, INC., PRYTANIA LIQUOR STORE, INC.,

WEST PRYTANIA INC. D/B/A PRYTANIA MAIL SERVICE,

BARBARA H. WEST, FINE ARTS MANAGEMENT, L.L.C.

D/B/A PRYTANIA THEATRE, PASCAL'S MANALE RESTAURANT, INC.,SUPERIOR SEAFOOD AND OYSTER BAR, L.L.C., SUPERIOR BAR & GRILL,INC., THE FRESH MARKET, INC., BRITISH ANTIQUES, L.L.C.,BENNET POWELL AND THE MAGIC BOX, LTD. v. SEWERAGE & WATER BOARD OF NEW ORLEANS

NO. 2019-CA-0524

C/W: NO. 2019-CA-0525

C/W: NO. 2019-CA-0526

C/W: NO. 2019-CA-0527

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

JULY 29, 2020

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2016-00621, DIVISION "D"

Honorable Nakisha Ervin-Knott, Judge

Judge Regina Bartholomew-Woods

(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)

Randall Alan Smith

Sarah Ann Lowman

L. Tiffany Hawkins

Mary Nell Bennett

SMITH & FAWER, L.L.C.

201 St. Charles Avenue, Suite 3702

New Orleans, LA 70170

COUNSEL FOR PLAINTIFFS/APPELLEES

Craig B. Mitchell

Kiana M. Mitchell

Joseph B. Morton, III

Christopher D. Wilson

MITCHELL & ASSOCIATES, APLC

615 Baronne Street, Suite 300

New Orleans, LA 70113

Darryl Harrison

SEWERAGE & WATER BOARD

625 St. Joseph Street

New Orleans, LA 70165

COUNSEL FOR DEFENDANT/APPELLANT

AMENDED, REMANDED, MODIFIED AND RENDERED, AND AFFIRMED AS AMENDED

RBW

EAL

SCJ

This consolidated appeal arises from residential and commercial property damages and loss of use and enjoyment as a result of construction associated with drainage projects across uptown New Orleans, Louisiana.

FACTUAL BACKGROUND

This consolidated appeal involves a group of homeowners, Plaintiffs-Appellees ("Lowenburg Appellees")¹ and a non-profit church with a daycare center Plaintiff-Appellee, Watson Memorial Spiritual Temple of Christ d/b/a Watson Memorial Teaching Ministries, ("Watson Appellee")² who claim that they, along with their properties, sustained various types of damages as a result of theconstruction of the Southeast Louisiana Urban Drainage Project (SELA Project).³ This federally sponsored and funded project⁴ involved the construction of multiple drainage canals and was carried out by the United States Army Corps of Engineers ("USACE") and Defendant-Appellant, Sewerage and Water Board ("Appellant"). On January 16, 2009, USACE entered into a project partnership agreement⁵ with the Louisiana Coastal Protection and Restoration Authority ("LCPRA") to construct the drainage canals. Pursuant to the project partnership agreement, LCPRA and Appellant entered into a cooperative endeavor agreement. Appellant assumed LCRPA's contractual responsibilities and obligations in relation to the SELA project.⁶ Further, through the cooperative endeavor agreement, Appellant indemnified the LCPRA, USACE, and its contractors. The trial court, in its final judgment, concluded that Appellant was the owner and controller of this construction project. Similarly, this Court, in Holzenthal, concluded that Appellant was the owner and the controller of the SELA project. Holzenthal v. Sewerage & Water Bd. of New Orleans, 2006-0796, p.8 (La. App. 4 Cir. 1/10/07); 950 So.2d 55, 62.

This project took place in seven (7) phases throughout uptown New Orleans, Louisiana: Claiborne I, Claiborne II, Jefferson I, Jefferson II, Napoleon II, Napoleon III, and Louisiana I;⁷ the instant consolidated appeal involves two of theaforementioned phases, Jefferson II and Napoleon III. Lowenburg Appellees' residences were located within Jefferson II, which included the construction of new drainage culverts - one along Jefferson Avenue from Carondelet Street to Constance Street and another down Prytania Street from Jefferson Avenue to Nashville Avenue. Lowenburg Appellees' residences were located adjacent to the construction at Jefferson Avenue and Prytania Street.⁸ Watson Appellee is located at the intersection of St. Charles Avenue and Napoleon Avenue⁹ within Napoleon III, which included the construction of an expanded drainage culvert along Napoleon Avenue from Carondelet Street to Constance Street. Watson Appellee's property is adjacent to the construction on Napoleon Avenue and St. Charles Avenue.

Appellees aver that they were impacted by construction activities¹⁰ from June or July 2013 until December 2016.¹¹ Lowenburg Appellees alleged that construction activities took place at least five (5) days per week including weekends, began in the early morning, and lasted until the evening. Additionally, Lowenburg Appellees aver that they experienced restricted vehicular and pedestrian traffic¹² to their residences,as well as excessive vibrations, daytime and nighttime noise,¹³ dust, dirt, debris, and foul odors. Watson Appellee alleges that, as a result of the construction activities, the property sustained damage to its foundation, floors, walls, ceilings, roof, and basement. In addition to seeking damages for property damage, Watson Appellee sought compensation for loss of income and profits related to its childcare center.

PROCEDURAL HISTORY

On January 19, 2016, the Lowenburg Appellees filed their original petition for damages¹⁴ seeking compensation for property damages to residences, loss of use and enjoyment of residences, and lost rent as a result of the construction associated with Jefferson II. On May 21, 2018, through the Third Supplemental and Amended Petition for Damages, Watson Appellee joined as a plaintiff in M. Langenstein & Sons, Inc. v. Sewerage and Water Board of New Orleans, a suit similar to the instant suit that involved businesses alleging commercial losses and property damages against Appellant as a result of construction along the Napoleon Avenue Phase II SELA Project. Watson Appellee's claims proceeded to trial with those of the Lowenburg Appellees. All of Appellees' suits alleged that Appellant was liable for damages pursuant to inverse condemnation, strict liability under La. C.C. arts. 667, 2317, and 2317.1, and negligence under La. C.C. arts. 2317 and 2317.1. Appellant filed Third-Party Demands against contractors hired by the USACE to construct the drainage canals and asserted claims based on third party beneficiary and indemnity. In accordance with the Federal Officer Removal Statute, the contractors removed the suit to the United States District Court for the Eastern District of Louisiana.Thereafter, the contractors filed Motions for Summary Judgment and argued that, as federal government contractors, they were entitled to immunity from suit. The federal court, pursuant to Boyle v. United Tech. Corp., 487 U.S. 500 (1988), granted the contractors' Motions for Summary Judgment. Additionally, the federal court dismissed Appellant's third-party demands, declined to retain jurisdiction, and remanded the suit to Civil District Court for the Parish of Orleans.

Appellees' consolidated suit proceeded to trial on January 28 - 31, 2019.¹⁵ On March 21, 2019, the trial court rendered judgment, and found that Appellees had suffered inverse condemnation for which Appellant was liable; that Appellant was the owner of the project; the project's construction caused Appellees' property damages¹⁶, loss of use and enjoyment of properties; and that Appellant failed to show comparative fault as to other parties; and Appellant was strictly liable pursuant to La. C.C. arts. 2317 and 2317.1. The trial court awarded Lowenburg Appellees damages in the amount of $765,084.47.¹⁷ The trial court awarded Watson Appellee damages in the amount of $233,788.00.¹⁸ Appellant now appeals the trial court's March 21, 2019 judgment.¹⁹ Appellees cross-appeal seeking an increase in the amount of damages, judicial interest from the date of judicial demand, and for the fees incurred on appeal.

DISCUSSION

Assignments of Error

On appeal, Appellant raises the following assignments of error:

1. Whether the trial court erred by awarding special damages for loss of use and enjoyment for experiencing noise, vibrations, dust, and property damages;

a. Alternatively, whether the trial court's awards for loss of use and enjoyment were excessive and thus, an abuse of discretion.

2. Whether the trial court erred by awarding damages for loss of use and enjoyment for general effects experienced throughout the neighborhood caused by construction activities that were minimal and away from the residences;

3. Whether the trial court erred by awarding damages for the impact of alleged construction noises based on potential decibel levels, which was contrary to evidence and the federal court's immunity ruling;

4. Whether the trial court erred in awarding damages for experiencing construction noises at night;

5. Whether the trial court erred by not reducing its award for damages for the stress of living with property damage to comport with its findings regarding property damage;

6. Whether the trial court erred by not reducing the damaged square footage to comport with its reduction of Appellees' property damage claims;

7. Whether the trial court's award of damages for loss of parking and access was excessive; 8. Whether the trial court erred by awarding damages for elements of loss of use and enjoyment contrary to the record; and

9. Whether the trial court's award of damages in favor of Watson Appellee was excessive and not supported by the record.

In Appellees' cross-appeal, they raise the following assignments of error:

1. Whether the trial court's property damage awards in favor of Appellees should be increased;

2. Whether the district court's award for physical damage in favor of Watson Appellee should be increased;

3. Whether the district court erred in not awarding any damages to Mark Hamrick for lost rent;

4. Whether

...