Robert v. State

• Decision Date: 12 August 2021
• Docket Number: NO. 2020-CA-0524,2020-CA-0524
• Citation: 327 So.3d 546
• Parties: Joseph ROBERT, Gloria Decuir-Robert, Albert Bierria, Gwendolyn Bierra, et al v. STATE of Louisiana and ABC Insurance Company
• Court: Court of Appeal of Louisiana — District of US

327 So.3d 546

Joseph ROBERT, Gloria Decuir-Robert, Albert Bierria, Gwendolyn Bierra,^[1] et al

v.STATE of Louisiana and ABC Insurance Company

NO. 2020-CA-0524

Court of Appeal of Louisiana, Fourth Circuit.

AUGUST 12, 2021

John Karl Etter Esq., Roy J. Rodney, Jr. Esq., RODNEY & ETTER, LLC, 935 Gravier Street, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE

Andre’ Collins Gaudin, Craig J. Canizaro, Christopher Kent Tankersley, BURGLASS & TANKERSLEY, LLC, 5213 Airline Drive, Metairie, LA 70001, Machelle R. L. Hall, Ryan M. Seidemann, Candice Hillman, LOUISIANA DEPARTMENT OF JUSTICE, 1885 N. 3rd Street, 6th Floor, P.O. Box 94005, Baton Rouge, LA 70802, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Paula A. Brown )

Judge Paula A. Brown

This matter involves property law. Defendants/Appellants, State of Louisiana, Through the Governor, The Division of Administration, State Land Office ("SLO"), and the Southeast Louisiana Flood Protection Authority - East ("FPA") jointly with Orleans Levee District ("OLD") (collectively the "Defendants"), appeal the district court's June 18, 2020 judgment which granted, in part, Plaintiffs’/Appellees’, Joseph Robert, Gloria Decuir-Robert, Gwendolyn Bierria and putative class members² (collectively the "Plaintiffs"), motion for partial summary judgment and found that the enactment of La. R.S. 38:225 via Acts 2015, Number 287, Section 1 (hereinafter referred to as " La. R.S. 38:225, as amended in 2015") was a taking of Plaintiffs’ properties "as a matter of law." In addition, Defendants’ appeal the portion of the district court's judgment which denied, in part, Defendants’ motions for summary judgment on Defendants’ prescription claims.³

For the reasons set forth below, we reverse, in part, the district court's judgment, granting Plaintiffs’ motion for partial summary judgment. The district court's judgment denying Defendants’ prescription claims is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendants are political subdivisions of the State of Louisiana. Plaintiffs are owners of immovable property that abuts the London Avenue Canal (the "Canal").⁴ The Canal is an "outfall drainage canal" that is a non-riparian waterway. See La. R.S. 38:225 (discussed infra ). A levee is constructed on the east and west sides of the Canal.

In 2016, Plaintiffs filed suit against the State of Louisiana, and in 2017, Plaintiffs amended their petition and specifically named Defendants.⁵ The petition alleged Defendants committed an uncompensated taking of Plaintiffs’ property through the 2015 amendment to La. R.S. 38:225. Prior to the 2015 amendment, La. R.S. 38:225, which was codified in 1950, provided as follows:

• La. Acts 1892, No. 16, prohibited any placement:

[U]pon any ... levee or levees fronting any lake or canal or waterway subject to the control or surveillance of the district board of levee commissioners or police juries or municipal corporations, any lumber, building material, fuel, fences, buildings, constructions, brick, sand, clay, or any matter or any kind or character which obstructs the levee, or interferes with the safety thereof, or is an obstacle to the construction or repair thereof.

• La. Acts 1934, No. 154, extended the prohibition contained in the 1892 statute to a corridor "within six feet of any part of the levees fronting any river, lake, canal, or waterway subject to the control or surveillance of the district board of levee commissions or police juries, or municipal corporations or other duly authorized bodies or departments."

• La. R.S. 38:225 (1950) codified the six-foot buffer.

• La. R.S. 38:225 (1966) was amended and reenacted by La. Acts 1966, No. 244, and provided in part:

No person shall: Place or cause to be placed upon or within six feet of any part of the levee fronting any waterway subject to the control or surveillance of police juries, levee boards, municipal corporations, or other authorized boards any object, material, or matter of any kind or character which obstructs or interferes with the safety of the levees or is an obstacle to the inspection, construction, maintenance, or repair any levee ....

• La. R.S. 38:225, effective August 15, 2011 to July 31, 2015, extended the six-foot buffer to a fifteen-foot buffer.

In 2015, by Acts 2015 Number 287, Section 1, La. R.S. 38:225 was amended effective August 1, 2015. Section (A)(1)(a) of 38:225 continued the fifteen-foot buffer to any waterway fronting a levee, whereas, Section (A)(1)(b)(i) and (ii) provided that the three named waterways, which included the Canal, have a six-foot buffer, unless the federal government determined that a fifteen-foot buffer was necessary. Section (A)(1)(b)(i) and (ii) provided in pertinent part:

A. No person shall:

* * *

(b)(i) Place or cause to be placed upon or within six feet of any part of a levee fronting the 17th Street, Orleans Avenue, or London Avenue outfall drainage canals located in Orleans Parish that is not used for commercial navigation, and is subject to the control or surveillance of police juries, levee boards, municipal corporations, or other authorized boards or departments, any object, material, or matter of any kind or character which obstructs or interferes with the safety of the levees, or is an obstacle to the inspection, construction, maintenance, or repair of any levee; or place or cause to be placed any object, structure, material, or matter of any kind or character upon any part of any land which the state or any agency or subdivision thereof may own or acquire by deed, lease, servitude, charge, or otherwise, and through its authorized representative, may donate, grant, or otherwise convey to the United States rights-of-way, easements, or other servitudes for the construction, improvement, or maintenance of any flood-control structures, or natural or other waterway, which may obstruct or interfere with the improvement or maintenance of such waterway, or use of the land for flood-control purposes.

(ii) Item (i) of this Subparagraph shall not be applied if the federal government, including but not limited to the United States Army Corps of Engineers or the Federal Emergency Management Agency, requires, by law or regulation, the prohibition in Item (i) of this Subparagraph to be greater than six feet. In that event, the prohibition in Subparagraph (1)(a) of this Subsection shall apply to any part of a levee fronting the 17th Street, Orleans Avenue, or London Avenue outfall drainage canals located in Orleans Parish.⁶

Enforcement of the statute is contained in sections (B), (D), (E), and (F) of La. R.S. 38:225. Section (B) provides that after 48-hours’ notice to the property owner, a governing authority that has jurisdiction of the levee may remove any "object or objects, structures or other obstructions" within the corridor at the risk and expense of the property owner. Section (D)(2) establishes a civil penalty for those in Orleans Parish who violate La. R.S. 38:225. Section (E) provides that the governing authority that has jurisdiction of the levee "may bring a civil action for damages and/or injunctive relief, including but not limited to the issuance of a mandatory injunction," and "[i]n any suit for the issuance of an injunction, proof of irreparable harm shall not be necessary."

In the petition, Plaintiffs alleged a legislative taking as result of La. R.S. 38:225, as amended in 2015.⁷ Specifically, they asserted the following causes of action: (1) Fifth Amendment Takings Clause Violation pursuant to the Fifth Amendment of the United States Constitution and Louisiana Constitution, Article I, § 4 ; (2) inverse condemnation; and (3) denial of equal protection under the Louisiana State Constitution.⁸ In response, Defendants filed answers to the petition, asserted affirmative defenses and exceptions, including exceptions of no cause of action and FPA/OLD filed an exception of prescription, all of which were denied.⁹

In addition, the parties filed three separate motions for summary judgment. In FPA/OLD's and SLO's motions for summary judgment,¹⁰ each entity raised prescription as a defense, which the district court denied in the June 18, 2020 judgment.¹¹ Plaintiffs moved for partial summary judgment on the following pertinent grounds:

(1) La. R.S. 38:225, as amended in 2015, was an unconstitutional legislative taking and regulatory taking of Plaintiffs’ property on the face of the statute, for which the State of Louisiana, through the SLO, the FPA and OLD are liable for inverse condemnation damages and compensation, pursuant to the Louisiana Constitution, La. R.S. 13:5111 and La. R.S. 38:301 ;

(2) Failure of SLO to properly record the taking in the public land records; and

(3) Injunctive relief requiring SLO to survey and determine the physical boundaries of the portions of Plaintiffs’ properties that were subject to the use restrictions of La. R.S. 38:225.

In support of the motion for partial summary judgment, Plaintiffs attached thirty-eight (38) exhibits. The following pertinent exhibits were not objected to by Defendants:

• Exhibit 1, affidavit of Jimmie Thorns, Jr., wherein he attested he is an expert and "[i]f called to testify at a hearing on plaintiffs’ motion for class certification, I would provide expert opinions regarding the impacts of legislative takings and property use restrictions on the market value of properties, real estate disclosures, and calculation of the reduction of property values due to legislative takings and property use restrictions." He attested he was of the opinion that "Plaintiffs were unable to build, plant, landscape or use those portions of their property in a meaningful way," and "the values of class members properties were reduced by enactment of Acts 2015, No. 287, section I." He explained that "[a] common, accepted ... appraisal methodology could be used to determine the reduced value of all class members property due to the legislative taking via Acts 2015, No.

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