FIRST CIRCUIT COURT OF APPEAL STATE OF LOUISIANA NO CW 1709

Transcription

1 FIRST CIRCUIT COURT OF APPEAL STATE OF LOUISIANA NO CW 1709 PATRICIA GRANT, WIFE OF/AND RICHARD GRANT, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED Plaintiffs/Respondents VERSUS SUN CONSTRUCTION, LLC, PENN MILL LAKES, LLC, SUNRISE CONSTRUCTION AND DEVELOPMENT, LLC, AND COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION Defendants ST. TAMMANY PARISH GOVERNMENT, JAMES A. THOMPSON, AND JEAN M. THIBODEAUX Defendants/Applicants On Application for Supervisory Writ of Review to the 22nd Judicial District Court, Parish of St. Tammany, State of Louisiana, Docket No , The Honorable Reginald T. Badeaux, III, Division "I" to Review the Judgment Signed October 28, 2014 Denying Applicants' Exception of No Cause of Action as to Third Amended Class Action Petition for Damages OPPOSITION OF PATRICIA GRANT, ET AL., PLAINTIFFS AND RESPONDENTS TO THE WRIT APPLICATION ON BEHALF OF DEFENDANTS/APPLICANTS, ST. TAMMANY PARISH GOVERNMENT, JAMES A. THOMPSON, AND JEAN M. THIBODEAUX THIS IS A CIVIL PROCEEDING LE GARDEUR, LTD. Maurice Le Gardeur (#8274) 335 E. Boston Street Covington, LA ADAM S. LAMBERT (#25134) 3531 Plymouth Place New Orleans, LA KOERNER LAW FIRM Louis R. Koerner, Jr., Louisiana Bar Jackson Avenue New Orleans, Louisiana P. O. Box 4297 Houma, Louisiana Co-Counsel for the plaintiffs, Patricia Grant, et al. 1

2 PLAINTIFFS/RESPONDENTS OPPOSITION TO THE WRIT APPLICATION OF STPG, ET AL. MAY IT PLEASE THE COURT: I. ISSUE BEFORE THE COURT In denying the immunity exception, Judge Badeaux stated: 1 THE COURT: He might say fraud, he might say conspiracy to subvert and establish regulatory ordinances and procedures to get some building permits. But, you know, I will just remind you we're here on an exception for no cause of action, the test for which is if he had well-plead [sic] facts as alleged by the petitioner or accepted as true, and they state a cause for which relief can be granted. Well, they me [sic, met] their burden of proof MR. SISTRUNK: Well, Hawkins dealt with that, Judge. THE COURT: And look, they've gone through great detail. I mean, you're right, generally the statutory jurisprudence would indicate that St. Tammany normally would be immune from a suit in this kind of manner. However, accepting as true the well-plead [sic] facts, the detailed, well-plead [sic] facts of the petitioner, and accepting as true, I find that they have met their burden of stating a valid cause of action. I am going to overrule the exception of no cause of action and see you at summary judgment time. Accordingly, the sole issue for consideration by this Court is whether Judge Badeaux was legally incorrect in overruling the exception and allowing the case to proceed to discovery and motion practice. At this interlocutory stage Judge 1 October 14, 2014 hearing transcript, 15:18-16:9, TR , Ex. I,

3 Badeaux s decision was legally sound. The writ should be denied, allowing discovery to move forward. II. SUMMARY OF THE FACTS Having reviewed the pleadings and the trial court documents, the Court is well aware of the facts of this case. As shown by relators Appendix the issues were well briefed especially by respondents. The basic facts, as alleged in the petition, are simply that the defendants conspired to commit fraud, public corruption, and other intentional acts to intentionally subvert the legal permitting process by submitting false and misleading information to the Parish and the public in order to obtain permitting for a subdivision which they knew had flooded, would flood, and would continue to flood, all in contravention of specific laws of the Parish and State. As is clear from even a cursory reading of the petition, the acts alleged are intentional acts, not mere negligence, as briefed by the defendants. In its writ application, SAINT TAMMANY PARISH GOVERNMENT ( STPG ) quotes almost nothing from the third amended petition. Rather, it paraphrases (incorrectly) and continues to raise allegations from the second petition, rather than the third petition sub judice. The third petition clearly alleges a conspiracy among the defendants to subvert the normal, legal processes. However, the defendants continue to wrongly construe the plaintiffs claims as founded in simple negligence. Having no defense to the clearly articulated causes of action in the third petition, the defendants ignore them, in the apparent hope that this Court will too. If the Court reviews the third amended petition at issue, it is 3

4 clear that the claims made are not mere negligent claims, but claims of political corruption, conspiracy, and intentional wrongful acts. 2 Contrary to defendants assertions the word negligent is used only twice in the entire third amended petition. 3 Nowhere in the third amended petition is there any allegation that the STPG, Thibodeaux, or Thompson (who are all STPG actors) acted in any way other than intentionally. III. PERTINENT PROCEDURAL HISTORY After the defendants herein successfully argued a previous exception to the plaintiffs second amended petition, based on governmental immunity, the plaintiffs amended with leave of Court and filed the Third Supplemental and Amended Petition, which is at issue in this writ application. After reviewing the third supplemental and amended petition carefully, the Court below held that the plaintiffs had legally stated a cause of action in this petition for the alleged intentional acts of the defendants in subverting the legal processes in order to gain 2 For example, in the Fourth Cause of Action alleged in the petition, plaintiffs alleged in that the developers and the STPG engaged in fraud and conspiracy to defraud and to prevent honest professional and other services by the STPG and its officials. This is but one of many of such allegations in the petition which the defendants have chosen to either ignore or mischaracterize as mere negligence allegations. 3 j) ST. TAMMANY PARISH GOVERNMENT ( STPG ), a public entity which is vicariously liable for the intentional/negligent acts of its elected officials, employees, and agents who, within the course and scope of their employment and in furtherance of their duties, aided and abetted the permitting of an obviously poorly drained subdivision; 81. Although petitioners and others similarly situated may be entitled to monetary compensation for their special and general damages in an amount determined to be just in the premises by this Honorable Court on account of present and future damages, petitioners and others similarly situated continue to suffer irreparable harm and injury from the effect of the illegal intentional and/or negligent actions of the defendants that is not compensable in money, so that the plaintiffs and other persons similarly situated are entitled to prohibitory injunctive relief. 4

5 approval for a sub-standard subdivision plan which the parties allegedly knew beforehand was sub-standard and was not in compliance with the law. As is shown above, Judge Badeaux believed that the petition clearly stated a cause of action and he allowed the scheduled deposition of the developer s engineer, Mr. Leroy Cooper, to move forward on January 26 and 28, That deposition promises explosive revelations as to the prior knowledge and intentional acts of all of the defendants, especially the STPG defendants. IV. THE STANDARD OF CONSIDERATION The standard of consideration of an exception of no cause of action was rearticulated by the Louisiana Supreme Court in New Orleans v. Board of Commissioners of the Orleans Levee District, (La. 07/05/94), 640 So.2d 237, 241: The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well pleaded facts in the petition must be accepted as true. [citations omitted.] A cause of action, for purposes of the peremptory exception, is defined as the operative facts that give rise to the plaintiff s right to judicially assert the action against the defendant. Ramey v. DeCaire, (La. 3/19/04), 869 So. 2d 114, 118. Appellate courts review a judgment sustaining a peremptory exception raising the objection of no cause of action de novo. Ramey v. DeCaire, 869 So. 2d at 119. This standard of review applies because the exception raises a question of law and the trial court s decision is based only on the sufficiency of the petition. Ramey v. DeCaire, 869 So. 2d at

6 V. ARGUMENT Discretionary immunity cannot apply here because the governmental action was illegal and/or was based on intentionally misleading information. The petition alleges that the governmental action was certainly not grounded in social, economic, or political policy, but in corrupt actions by Thompson and Thibodeaux. When governmental actors are faced with information that should prevent the issuance of permits, particularly for drainage and flood control that is known to violate Parish ordinances, their purposeful withholding of the correct information must be condemned and cannot be subject to immunity. Not one of the cases cited by the defendants in their writ application (the same cases they cited in the trial court) have any applicability to the present circumstances and Judge Badeaux s considered ruling was legally sound. Moreover, all Judge Badeaux has done is to allow the discovery and deposition process to move forward, so that all parties involved may ascertain exactly who did what, who knew what, and who was responsible for what. The Judge invited the defendants to return to his Court for summary judgment if the plaintiffs claims proved unsustainable, but he was clear that the allegations made in the third petition did clearly state a cause of action. Like most of the cases cited by the defendants, Hawkins v. Willow Inc., (La. App. 5 Cir. 10/16/12), 102 So.3d 900 is inapplicable because those cases all involve mere negligence and, as that court found in that case, To the extent that the petition asserts an action for negligence, the exception of no cause of action was properly sustained. 6

7 To bolster their faulty claim and to make it appear that these negligence cases applied to this case, STPG made the following outrageous statement in its writ application: 4 Likewise, in this case, the plaintiffs claim that STPG and Thibodeaux acted negligently in approving the Penn Mill Lakes subdivision, although it was allegedly subject to flooding, and permitting the construction of homes therein. The Parish and Thibodeaux are entitled to immunity as a matter of law for these discretionary decisions. Likewise, to the extent that Thompson had any involvement in approving the subdivision, he too is entitled to discretionary immunity for those decisions. However, Hawkins and the other cases cited in the writ application are of no help to the defendants, as the allegations here are not of mere negligence, no matter how strongly the defendants contend. As all of those cases have been dealt with in the memorandum filed by plaintiffs in the trial court, plaintiffs refer the Court to that memorandum and simply incorporate those arguments herein. Still, the plaintiffs specifically mention Hawkins because the Hawkins court s conclusion is particularly apt in this case because the allegations of the third amended petition in this case are so completely different from those criticized and found insufficient in Hawkins. The Hawkins court rejected the plaintiffs argument there that their petition stated a cause of action for fraud because the Court found their allegations of fraud to be merely conclusory and conjectural. Conversely, in this case, the third petition sub judice states in very particular (even 4 Application, page 11. 7

8 painstaking) detail the fraudulent acts complained of a fact which was noticed and specifically mentioned by Judge Badeaux in his ruling, when he held: 5 THE COURT: And look, they've gone through great detail. I mean, you're right, generally the statutory jurisprudence would indicate that St. Tammany normally would be immune from a suit in this kind of manner. However, accepting as true the well-plead facts, the detailed, well-plead facts of the petitioner, and accepting as true, I find that they have met their burden of stating a valid cause of action. CONCLUSION The actions of the St. Tammany Parish Government, through James (Red) Thompson, an elected official sworn under his oath of office to protect the public and uphold the law, and through Chief Engineer Jean Thibodeaux, who understood everything and who was apparently pressured to do nothing, were outrageous, resulting in the totally unnecessary flooding problems suffered by the Penn Mill Lakes homeowners. Even worse, the STPG permitted the approval of various phases of the Penn Mill Lakes Subdivision that resulted in purchase by unsuspecting homeowners of property that was subject to flooding from a nonintuitive cause, the back-up of the Little Tchefuncte and Horse Branch. There was no warning of this flooding and no disclosure of flooding even though Thompson, Thibodeaux, Paul Carroll, and others knew of it. Carroll later wrote of it as a given. 6 5 October 14, 2014 hearing transcript, TR , Ex. I, STPG Drainage Engineer Paul Carroll responded on May 6, 2009 at 10:20 AM (STP ) 8

9 denied. Defendants application for supervisory writs has no merit and should be LE GARDEUR, LTD. Maurice Le Gardeur (#8274) 335 E. Boston Street Covington, LA Phone: (985) Fax: (985) ADAM S. LAMBERT (#25134) 3531 Plymouth Place New Orleans, LA Tel. (504) Fax (504) Web: KOERNER LAW FIRM Louis R. Koerner, Jr. Louisiana Bar 7817 P.O. Box 4297 Houma, Louisiana (985) (Houma) (504) (New Orleans) (985) (Cell) Regarding the flooding of the retention ponds, this is expected behavior. There are 2 main reasons. The most frequent reason is that this area must drain into a tributary of Horse Branch which runs through Lake Ramsey - Savannah Wildlife Management Refuge. During a flood after the subdivision was built, Leroy Cooper and Doug Creasp (the subdivision engineers) rode around and came to conclusion that the lateral they drained into was undersized. The obvious attempt to solve this would be to pump down the "lakes" in the subdivision, but that would damage the aesthetics of the subdivision. Another may be to buy some of the lightly developed land north of Spur Ct and install retention. Before any recommendations are ready to present, we would have to study the benefits either in house or using a consultant. This would not reduce the risk of home flooding from river floods. A less frequent, but potentially more damaging cause for flooding would be a Tchefuncte River flood where the preliminary DFIRM Map shows that you may get 2' to 4' of flooding above the pre-developed grade on this street. See the attached map. The solution to this would be to either raise the houses which are too low or to install a levee protecting Penn Mill Lakes and install a large retention pond (likely pumped) North of Spur Ct. Either option is hugely expensive. [Emphasis supplied.) 9

10 (504) (Fax) URL: Co-Counsel for the plaintiffs 10

11 CERTIFICATION I, Maurice Le Gardeur, certify that all of the allegations of fact contained in this opposition are true and correct and that I forwarded copies of the foregoing opposition to the district court by mail and to all counsel of record by with the option to receive a hard copy, as follows: Hon. Reginald T. Badeaux, III, Judge 22nd Judicial District Court Parish of St. Tammany Post Office Box 1090 Covington, LA McCRANIE, SISTRUNK, ANZELMO, HARDY, McDANIEL & WELCH, LLC THOMAS P. ANZELMO (#2533) LOU ANNE MILLIMAN (#23869) 909 Poydras St., Suite 1000 New Orleans, LA Attorneys for the St. Tammany Parish Government, James A. (Red) Thompson, and Jean Thibodeaux Covington, Louisiana, December, Maurice Le Gardeur 11