Opinion
NUMBER 2013 CA 0587 C/W NUMBER 2013 CA0588
02-07-2014
ROBERT J. NEIL v. LAFOURCHE PARISH COUNCIL, LAFOURCHE PARISH SHERIFF, CRAIG WEBER, LAFOURCHE PARISH PRESIDENT, CHARLOTTE RANDOPLH, AND VAN MATHERNE ROBERT J. NEIL v. CHARLOTTE RANDOLPH, IN HER CAPACITY AS PARISH PRESIDENT OF LAFOURCHE PARISH GOVERNMENT AND LAFOURCHE PARISH GOVERNMENT
Matthew L. Pepper The Woodlands, TX Counsel for Plaintiff/Appellant Robert J. Neil Michael G. Gee Ashley G. Simoneaux Thibodaux, LA Counsel for Defendants/Appellees Lafourche Parish Government and Lafourche Parish President, Charlotte Randolph Misael A. Jimenez, Jr. Thibodaux, LA Counsel for Defendant/Appellee Lafourche Parish Sheriff, Craig Webre T. Gregory Schafer New Orleans, LA Counsel for Defendant/Appellee Van Matherne
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Seventeenth Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
Suit Numbers 112985 and 118447
Honorable Jerome J. Barbera, III, Presiding
Matthew L. Pepper
The Woodlands, TX
Counsel for Plaintiff/Appellant
Robert J. Neil
Michael G. Gee
Ashley G. Simoneaux
Thibodaux, LA
Counsel for Defendants/Appellees
Lafourche Parish Government and
Lafourche Parish President, Charlotte
Randolph
Misael A. Jimenez, Jr.
Thibodaux, LA
Counsel for Defendant/Appellee
Lafourche Parish Sheriff, Craig
Webre
T. Gregory Schafer
New Orleans, LA
Counsel for Defendant/Appellee
Van Matherne
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
GUIDRY, J.
Robert J. Neil appeals from a trial court judgment in favor of defendants, Lafourche Parish Government and Lafourche Parish President, Charlotte Randolph, granting their motion for summary judgment and dismissing Mr. Neil's claims against them. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 1, 2008, Hurricane Gustav, a strong category 2 hurricane, made landfall on the coast of Louisiana. Approximately one week later, Louisiana Governor Bobby Jindal issued an executive proclamation declaring a state of emergency for the State of Louisiana due to the threat of Hurricane Ike, which was expected to make landfall in Louisiana on September 13, 2008. The proclamation was effective from September 6, 2008, to October 5, 2008, but it was extended several times. Additionally, on September 10, 2008, Lafourche Parish President, Charlotte Randolph, declared a state of emergency in Lafourche Parish. Thereafter, Hurricane Ike made landfall in Louisiana on September 13, 2008, resulting in severe damage and flooding in Lafourche Parish.
Robert Neil owns property in Bayou Blue, Louisiana in Lafourche Parish, which property is adjacent to Lake Long Drive in Lake Long Subdivision. Mr. Neil's property, which he uses for cow pasture, is constantly under pump, because its elevation is six feet lower than the surrounding area. On September 13, 2008, Mr. Neil constructed a protective earthen berm approximately 700 to 1,000 feet long on the portion of his property running parallel to Lake Long Drive to protect his property from flooding. In response to complaints from residents of Lake Long Subdivision that Mr. Neil's actions were causing flooding in their subdivision, Lafourche Parish Sheriff's detectives went to Mr. Neil's property. Upon their arrival, the detectives found Mr. Neil working on the earthen berm and discovered that the berm was preventing water from draining out of Lake Long Subdivision. Lafourche Parish Sheriff's detectives ordered Mr. Neil to discontinue his activities and temporarily detained Mr. Neil. After contacting Lafourche Parish Government officials, the Lafourche Parish Sheriff's Office called the Lafourche Parish Department of Public Works, which sent personnel and an excavator to tear down the berm. Lafourche Parish Sheriff's detectives ultimately issued Mr. Neil a summons for violation of Parish Ordinance 25:102, obstruction of drainage. Following a trial, the jury returned a unanimous verdict finding Mr. Neil guilty of attempted obstruction of drainage.
Thereafter, Mr. Neil filed a petition for damages, naming Lafourche Parish Government and Lafourche Parish President, Charlotte Randolph, as defendants. Mr. Neil asserted that the destruction of the earthen berm caused his property to fill with water, which resulted in the loss of more than 100 head of cattle and destruction of his grazing grass. Particularly, Mr. Neil asserted that the defendants' actions constituted a taking of private property in violation of the Fifth Amendment of the U.S. Constitution, or alternatively, constituted negligence, trespass, and malicious prosecution.
Mr. Neil filed two separate actions in the district court. The first action named Lafourche Parish Council, Lafourche Parish President, Charlotte Randolph, Lafourche Parish Sheriff, Craig Webre, and Van Matherne as defendants. The second action named Lafourche Parish Government and Lafourche Parish President, Charlotte Randolph, as defendants. Both actions were consolidated by order of the district court on April 23, 2012. However, the only defendants involved in the instant appeal are Lafourche Parish Government and Charlotte Randolph.
The defendants answered Mr. Neil's petition, generally denying the allegations and asserting immunity from suit under the Louisiana Homeland Security and Emergency Assistance and Disaster Act, La. R.S. 29:721, et seq. (the Act), and under the discretionary immunity provisions of La. R.S. 9:2798.1. Thereafter, the defendants filed a motion for summary judgment, asserting that Mr. Neil cannot meet his burden of proof at trial, because they are entitled to qualified immunity and because there is no evidence of a taking in violation of the Fifth Amendment of the U.S. Constitution. Mr. Neil responded by filing his own motion for partial summary judgment as to liability, asserting that there is no genuine issue of material fact that the defendants' actions constituted a physical taking of his property.
Following a hearing on the defendants' motion for summary judgment, the trial court signed a judgment granting summary judgment in favor of defendants and dismissing Mr. Neil's claims against them. Additionally, the judgment denied Mr. Neil's motion for summary judgment. Mr. Neil now appeals from the district court's judgment.
Mr. Neil's motion for partial summary judgment was not originally set to be heard on the same date as the defendants' motion for summary judgment. However, due to its ruling on the defendants' motion, and after obtaining consent of the parties, the district court re-set the matter to be heard on the same date and ruled thereon.
The denial of a motion for summary judgment is generally non-appealable. See La. C.C.P. art. 968. However, because the issues involved in the cross-motions for summary judgment are identical, it is clearly appropriate to review the interlocutory judgment denying Mr. Neil's motion for summary judgment at this time. Dean v. Griffin Crane & Steel, Inc., 05-1226, p. 4 n.3 (La. App. 1st Cir. 5/5/06), 935 So. 2d 186, 189 n.3, writ denied, 06-1334 (La. 9/22/06), 937 So. 2d 387.
STANDARD OF REVIEW
An appellate court's review of a summary judgment is de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. R.G. Claitor's Realty v. Rigell, 06-1629, p. 4 (La. App. 1st Cir. 5/4/07), 961 So. 2d 469, 471-72, writ denied, 07-1214 (La. 9/21/07), 964 So. 2d 340. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).
On a motion for summary judgment, the burden of proof is on the mover. La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, he need only demonstrate the absence of factual support for one or more essential elements of the adverse party's claim, action, or defense. La. C.C.P. art. 966(C)(2). 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, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La. App. 1st Cir. 3/28/03), 844 So. 2d 339, 341.
DISCUSSION
Louisiana Revised Statute 29:735 provides qualified immunity for certain emergency preparedness activities:
A. (1) Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents' employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.
The Act defines "emergency preparedness" as "the mitigation of, preparation for, response to, and the recovery from emergencies or disasters." La. R.S. 29:723(4). A "disaster" is described as a "natural or man-made event which causes loss of life, injury, and property damage, including but not limited to natural disasters such as hurricane, tornado, storm, flood, high winds, and other weather related events ..." La. R.S. 29:723(2). An "emergency" is defined as "[t]he actual or threatened condition which has been or may be created by a disaster ...." La. R.S. 29:723(3)(a).
In the instant case, at all relevant time periods, Lafourche Parish was under a state of emergency, as declared by Governor Bobby Jindal and by Lafourche Parish President Charlotte Randolph. Evidence submitted in connection with the defendants' motion for summary judgment indicated that, as a result of the recent hurricanes, water from the canal running perpendicular to Mr. Neil's property and to Lake Long Subdivision was flooding into the subdivision, and that Mr. Neil's earthern berm was preventing the water from receding out of Lake Long Subdivision and was subjecting the streets and homes in the subdivision to flooding. After assessing the situation, the defendants determined that the berm was obstructing the natural drainage of the flood water and brought an excavator onto Mr. Neil's property to tear down the berm.
From our review of the record, we find that the actions of the defendants in tearing down Mr. Neil's earthern berm were clearly in response to a disaster, i.e., the flooding of Lake Long Subdivision as a result of the rising canal waters and the obstruction created by Mr. Neil's berm. Further, because there is no evidence in the record of any willful misconduct on the part of the defendants in responding to the flood threat, they are immune from liability for any acts of negligence or trespass claimed by Mr. Neil. See Hontex Enterprises, Inc. v. City of Westwego, 02- 506, p. 13 (La. App. 5th Cir. 12/11/02), 833 So. 2d 1234, 1240, writs denied, 03- 505 (La. 9/5/03), 852 So. 2d 1041 and 03-455-(La. 9/5/03), 852 So. 2d 1042.
Because we find that the defendants are immune from liability pursuant to La. R.S. 29:735 for any claims asserted by Mr. Neil arising from any purported acts of negligence or trespass, we pretermit discussion of whether the defendants are immune pursuant to La. R.S. 9:2798.1.
However, the immunity provided by La. R.S. 29:735 does not override the constitutional prohibition against the taking of private property for public use without just compensation. See Hontex, 02-506 at p. 13, 833 So. 2d at 1240. The Fifth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that "private property [shall not] be taken for public use, without just compensation," while Article I, Section 4 of the Louisiana Constitution, provides that property shall not be "taken or damaged" by the state or its political subdivisions except for public purposes and with just compensation paid to the owner.
In determining whether property has been "taken" under La. Const, art. I, § 4, a court must: (1) determine if a right with respect to a thing or an object has been affected; (2) if. it is determined that property is involved, decide whether the property has been taken or damaged in a constitutional sense; and (3) determine whether the taking or damaging is for a public purpose under Article I, Section 4. Williams v. Citv of Baton Rouge, 98-1981, pp. 6-7 (La. 4/13/99), 731 So. 2d 240, 246.
In the instant case, Mr. Neil erected a 4-to-5 foot tall and 700-to-1000 foot long earthen berm on his property, running parallel to Lake Long Drive. The record indicates that Mr. Neil erected this berm in an effort to prevent flood water from continuing to flow onto his property from Lake Long Subdivision and Lake Long Drive. As a result of this berm, floodwater was unable to recede out of the subdivision and resulted in the flooding of homes and streets in the subdivision. As indicated by the record, the berm retained approximately 3 to 4 feet of water at its far end, and floodwater flowed along the unfinished berm and around an opening onto Mr. Neil's property. As previously stated, the defendants directed that the berm be torn down because it was interfering with the drainage and natural flow of the floodwater.
Mr. Neil contends that the defendants' actions in tearing down the berm constituted a taking of private property in violation of the Fifth Amendment of the United States Constitution and La. Const, art, I, § 4, and that the defendants are liable for the resulting damage to his property, including the loss of over 100 head of cattle and destruction of his pasture.
Louisiana Constitution article I, § 4 specifically provides that while "[e]very person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property[, t]his right is subject to reasonable statutory restrictions and the reasonable exercise of the police power." The Louisiana Supreme Court has stated that, in determining whether a claimant's right with respect to his property has been affected, a court must take into consideration that La. C.C. art. 667 imposes legal limitations on a landholder's right of ownership. See State. Department of Transportation and Development v. Chambers Investment Company, Inc., 595 So. 2d 598, 604 (La. 1992). Louisiana Civil Code article 667 provides limitations on the use of property and provides that "[although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him." Additionally, La. C.C. arts. 655 through 658, relating to natural servitudes, provide that an owner of an estate situated below is bound to receive the surface waters that flow naturally from an estate situated above, and that he may not do anything to stop or prevent the flow of water. Finally, Lafourche Parish Ordinance 25:102, which Mr. Neil was found guilty of attempting to violate, provides that "[n]o person shall willfully obstruct any natural or artificial drainage canal, creek, bayou, or small river or any public or private drainage."
The substance of Lafourche Parish Ordinance 25:102 is now contained in 25:110.
The record clearly indicates that Mr. Neil's property was lower in elevation than the property in Lake Long Subdivision and along Lake Long Drive, and that the floodwater entering the subdivision was attempting to flow onto Mr. Neil's property. However, because of the berm, the floodwater could not flow out of the subdivision, and the homes and streets of Lake Long Subdivision and Lake Long Drive were flooding. Accordingly, although Mr. Neil had a right to protect his property, this right was limited by the aforementioned Louisiana Civil Code articles. Additionally, Mr. Neil's actions were unlawful, and the defendants were merely enforcing the law and protecting the residents of Lake Long Subdivision, who were being harmed as a result of Mr. Neil's unlawful actions.
Therefore, although we find that Mr. Neil's property was damaged when the Department tore down the earthen berm that he had constructed, we do not find that the defendants' actions constitute a taking within the purview of either the Fifth Amendment of the United States Constitution or La. Const, art. I, § 4.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to appellant, Robert J. Neil.
Mr. Neil did not contest the district court's granting of summary judgment and dismissal of his claim for malicious prosecution in the instant appeal. Accordingly, we consider any appeal of this portion of the district court's judgment abandoned. See Uniform Rules - Courts of Appeal, Rule 2-12.4.
--------
AFFIRMED.