Joseph Robert, Gloria Decuir-Robert, Albert Bierria, Gwendolyn Bierra v. State of Louisiana and Abc Insurance Company

JOSEPH ROBERT, GLORIA * NO. 2020-CA-0524
DECUIR-ROBERT, ALBERT
BIERRIA, GWENDOLYN *
BIERRA,[1] ET AL COURT OF APPEAL
*
VERSUS FOURTH CIRCUIT
*
STATE OF LOUISIANA AND STATE OF LOUISIANA
ABC INSURANCE COMPANY *******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-09374, DIVISION “I-14”
Honorable Piper D. Griffin, Judge
******
Judge Paula A. Brown
******
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Paula A. Brown)

BELSOME, J., CONCURS IN THE RESULT
LOBRANO, J., CONCURS IN THE RESULT

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

1
The correct spelling is “Bierria” which will be used throughout the opinion.

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

REVERSED IN PART;
AFFIRMED IN PART;
REMANDED
AUGUST 12, 2021

PAB

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

2
As of the time of this appeal, the class had not been certified, and no information has been
provided to this Court that the class has been certified. The proposed class is owners of
immovable property abutting London Avenue Canal, in New Orleans, Louisiana from August 1,
2015 to present.
3
Generally, prescription is raised via the procedural vehicle of the peremptory exception, but the
defense of prescription may also be raised by motion for summary judgment. Hogg v. Chevron
USA, Inc., 09-2632, p. 6 (La. 7/6/10), 45 So.3d 991, 997 (footnote omitted)(citations omitted).

1

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

4
The Roberts purchased their property in November 2004, and Ms. Bierria accepted the donation
of her property in August 1994.
5
The original petition named the State of Louisiana via the Louisiana Legislature. After the State
objected, the district court ordered that Plaintiffs name a specific state agency. Plaintiffs filed the
second amended and supplemental petition, naming the Defendants. A third amended petition,
wherein the allegations asserted are not germane to the issues raised on appeal, was filed on or
about November 8, 2018.

2

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
3

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
6
La. R.S. 38:225 was amended, effective August 1, 2016, with no relevant changes to this issue.
7
Plaintiffs asserted that as property owners of land abutting the Canal, they were not treated in
the same manner as the property owners of land abutting the 17th Street Canal, who allegedly
settled their claims with the State for taking their land, pursuant to La. R.S. 38:225.

4

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:

8
There were no allegations in the petition that the State took ownership of the properties,
physically entered the properties, removed Plaintiffs’ property, or enforced La. R.S. 38:225, as
amended in 2015, regarding Plaintiffs’ properties.
9
The Defendants filed exceptions of no cause of action, arguing that the plaintiffs had not
asserted valid causes of action against them for inverse condemnation and equal protection
violations. FPA/OLD filed an exception of prescription for any claims against them. A hearing
was held on December 18, 2019, and on January 17, 2020, after which the district court denied
the exceptions. FPA/OLD sought review by this Court which was denied. Roberts v. State, 20-
53 (La. App. 4 Cir. 3/9/20)(unpubl.).
10
FPA/OLD asserted it was entitled to summary judgment on the following grounds: (1)
Plaintiffs’ had no evidence that there was a taking; (2) Plaintiffs’ had no support to prove their
alleged equal protection claims; and (3) Plaintiffs’ alleged taking and equal protection claims
prescribed. The district court granted summary judgment as to Plaintiffs’ equal protection claims
and denied the other two claims. SLO asserted it was entitled to summary judgment on the
following grounds: (1) Plaintiffs failed to prove a taking because their “properties were subject to
the restrictions of La. R.S. 38:225 even before the amendment of that statute in 2015”; (2)
Plaintiffs could not support their equal protection claim; (3) Plaintiffs could not support their
claim of negligent recordation by SLO; and (4) Plaintiffs’ alleged taking claims prescribed. The
district court granted the summary judgment as to the challenge to the Plaintiffs’ equal protection
and negligent recordation claims, but denied the other two claims. FPA/OLD and SLO each
sought review by this Court. The matters were consolidated, and this Court denied review.
Robert v. State, 20-273, 20-277 and 20-338 (La. App. 4 Cir. 9/10/20)(unpubl.). Defendants
sought review by the Supreme Court, and the Supreme Court denied the writ, noting that
Defendants had an adequate remedy on appeal, which was pending in this Court. Robert v.
State, 20-01186 (La. 12/22/20), 307 So.3d 202.
11
In support of its opposition to Defendants’ motions for summary judgment, Plaintiffs filed the
affidavit of a prior FPA commissioner, Strafford Goins, Sr. In addition, Plaintiffs incorporated
the exhibits they filed in support of their motion for partial summary judgment, which will be
discussed infra.

5

(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. 287,
Section 1”;
 Exhibits 2, 3, and 4, affidavits of Mr. and Mrs. Roberts and Ms. Bierria,
wherein each attested in pertinent part that “[a]s a result of the legislative
adoption of Louisiana Act 2015, No. 287, §1, I have been unable to
experience full and peaceful possession of my property, and “I have been
unable to build, plant, landscape, or use the affected portions of my property
in any meaningful way”; and
 Exhibit 5, conveyance records showing a cash sale of the property located at
5302 Warrington Drive, New Orleans to the Roberts in November 2004, and
a donation of the property located at 5286 Warrington Drive, New Orleans,
to Ms. Bierria in August 1994.12
12
In addition, Plaintiffs submitted the following exhibits in support of its motion for partial
summary judgment, which were not objected to by Defendants:

Exhibit 9, a copy of La. Atty. Gen. Op. No. 1995-106;
Exhibit 10, a copy of Knick v. Town of Scott, Pennsylvania, __ U.S. ___, 139 S. Ct. 2162
(2019);
Exhibit 11, a copy of a spread sheet of property addresses with the caption, “U.S. Army
Corps of Engineers-New Orleans District, London Avenue Canal Eastbank (New
6

FPA/OLD objected to twenty-three (23) exhibits13 filed by Plaintiffs on the ground

these exhibits were not of the type permitted by La. C.C.P. article 966(A)(4).14

Defendants filed oppositions to Plaintiffs’ motion for partial summary

judgment. FPA/OLD filed exhibits A through H in support of its opposition.15

Orleans/Orleans Parish) Floodwall to Levee Toe +6 Feet Offset Distances (In Feet) 23
October 2000,” which set forth addresses of properties located on Warrington Drive and
Pratt Drive;
Exhibit 12, photographs captioned in part “London Avenue Outfall-Channel . . . tree
removal plan – 16 October 2006”;
Exhibit 13, answers to interrogatories by FPA which were propounded by the Plaintiffs;
Exhibits 17 and18, excerpts of the La. C.C.P. art. 1442 depositions of a representatives
from FPA conducted in August of 2019;
Exhibit 29, excerpts of the La. C.C.P. art 1442 deposition of a representative from SLO;
Exhibit 36, a letter dated June 5, 2015 from FPA to Mr. Robert stating that Mr. Robert
did not need a permit to build a shed on his property located at 5302 Warrington Drive
because where the shed was to be built was outside of OLD’s “enforcement zone”; and
Exhibit 37, a photograph which does not contain a caption indicating what the
photograph is depicting.
13
The following exhibits were objected to by Defendants:

Exhibit 6, Property List spreadsheet ;
Exhibit 7, Authorization for Right of Entry (“ROE”) for Construction dated 8/26/2013;
Exhibit 8, Authorization for ROE for Access and Geotechnical Investigations Permanent
Pumps, 17th Street and London Avenue Outfall Canals dated 4/13/2009;
Exhibit 14, August 2, 2007 letter from USACE [United States Army Corps of Engineers]
to Mr. Spencer;
Exhibit 15, Photographs;
Exhibit 16, January 23, 2006 USACE Memo re: Plaquemines Parish Levees;
Exhibits 19, 20, 31, Times-Picayune articles;
Exhibit 21, FPA board meeting Minutes from 9/15/2011;
Exhibit 22, a request made on 9/15/2011 for an attorney-general opinion;
Exhibit 23, FPA board meeting Minutes from 2/19/2015;
Exhibit 24, FPA Subpoena Duces Tecum Response from November 28, 2016;
Exhibit 25, FPA Permit Response;
Exhibit 26, Survey of 5427 Pratt Drive;
Exhibit 27, FPA Safety Permit Policy dated 7/12/2017;
Exhibit 28, FPA Permit Process dated 8/8/2016;
Exhibit 30, Draft of London Avenue Canal and Levees Manual, 1986;
Exhibit 32, Report by USACE re: Tree Removals at Floodwalls and Levees dated May
2006;
Exhibit 33, USACE News Release dated 3/23/2007;
Exhibits 34 and 35, Correspondence from FPA and USACE dated 7/30/2012 and
7/3/2013; and
Exhibit 38, Survey of Property on Pratt Drive.
14
La. C.C. P. art. 966(A)(4) provides in part:
The only documents that may be filed in support of or in opposition to the motion are
pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical
records, written stipulations, and admissions.

7

Pertinently, exhibit H was the affidavit of Michael W. Truax, who was hired by

FPA/OLD as an expert to investigate whether the real estate related damages

alleged had resulted in a taking. He attested, in part, that the named Plaintiffs’

properties were not representative of the class. In addition, he attested as follows:

(6) In connection with my retention I reviewed the
Affidavit of Jimmie Thorns, Jr, retained by plaintiffs,
dated December 26, 2016.
(7) My full opinions set forth in connection with the
above captioned matter are contained within the attached
report I authored, dated December 30, 2019, and attached
hereto as Exhibit “2;”[16]
(8) No support or basis has been provided in support of
Mr. Thorns’ opinion that “plaintiffs are unable to build,
plant, landscape or use portions of property in any
meaningful way.” Accordingly, this statement cannot be
credibly supported as factually correct.

SLO filed exhibits A through D in opposition to Plaintiffs’ partial motion for

summary judgment.17

A hearing on Plaintiffs’ motion for partial summary judgment was held on

February 21, 2020, and recessed until March 3, 2020.18 At the hearing, the district

15
FPA/OLD filed the following exhibits in opposition to Plaintiffs’ motion:

Exhibits A, B, and C, Plaintiffs’ petitions for damages;
Exhibits D, E, and F, copies of La. R.S. 38:225, effective 1951, effective August 1, 2015
to July 31, 2016, effective August 15, 2011 to July 31, 2015 and Act Nos. 16,17, 18, 154,
155, 244;
Exhibits E, and F, excerpts of the depositions of Mr. and Mrs. Roberts conducted on
November 26, 2019;
Exhibit G, excerpts of the deposition of Ms. Bierria conducted on December 18, 2019;
16
Exhibit 2, purporting to be the expert report of Mr. Truax, is not in the appellate record.
17
SLO filed the following exhibits in opposition to Plaintiffs’ motion:

Exhibit A, excerpts of the La. C.C.P. art. 1442 deposition of SLO’s representative
Cheston Hill conducted on February 11, 2019;
Exhibits B and C, excerpts of Mr. and Mrs. Robert’s depositions conducted on November
26, 2019; and
Exhibit D, excerpts of Ms. Bierria’s deposition conducted on December 18, 2019.

8

court stated it did not consider any exhibits “necessary,” because Plaintiffs’ raised

only a legal issue. After taking the matter under advisement, the district court

issued a written judgment on June 18, 2020, wherein it ruled in part:

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the
Motion for Partial Summary Judgment on behalf of plaintiffs, Joseph
Robert, Gloria Decuir-Robert, Gwendolyn Bierria, and a putative
class, is GRANTED IN PART and DENIED IN PART. The motion is
GRANTED to the extent the Court finds the enactment of La. R.S.
38:225 via Acts 2015 Number 287 was a taking of plaintiffs’ property
and class members’ property as a matter of law. The Court DENIES
all other relief sought in the motion and does not decide at this time
whether the taking was by the Southeast Louisiana Flood Protection
Authority-East and Orleans Levee District, or whether the taking
resulted in any damages by the plaintiffs or putative class. The Court
further finds pursuant to La. C.C.P. article 1915 there is no just reason
for delay and designates its ruling as to plaintiffs’ motion for partial
summary judgment as a final judgment.

As to the exhibits objected to by Defendants, the district court ruled as

follows:

It IS FURTHER ORDERED, ADJUDGED and DECREED that the
Court considered all objections raised by defendants to exhibits
submitted by plaintiffs in support of their Motion for Partial Summary
Judgment and in opposition to the motions for summary judgment
filed by all defendants. The Court SUSTAINED all objections raised
to any exhibit that was not in compliance with La. C.C.P. art.
966(A)(4). The Court further noted it considered the questions
presented by competing motions for summary judgment to be
questions of law not fact.

Defendants appeal the portion of the district court’s judgment, granting, in

part, Plaintiffs motion for partial summary judgment and denying Defendants

motions for summary judgment as to the claims of prescription.

18
The district court’s judgment references the hearing continued on March 2, 2020, whereas, the
transcript reflects the hearing was held on March 3, 2020.
9

DISCUSSION

On appeal, Defendants assert that the district court erred in granting

Plaintiffs’ motion for partial summary judgment and denying its claims of

prescription. We summarize Defendants individual assigned errors as follows:

FPA/OLD

(1) The district court erred in determining that La. R.S. 38:225, as
amended effective August 1, 2015, constituted a taking of Plaintiffs’
properties as a matter of law, as the language of the statute does not
satisfy the elements of a regulatory taking;
(2) The district court erred in granting partial summary judgment in
favor of the Roberts and the Bierrias without conducting any fact
finding;

(3) The district court erred in granting partial summary judgment in
favor of “putative class members without class certification and
without conducting any fact finding relative to putative class
members”; and

(4) The district court erred in granting, in part, Plaintiffs’ motion for
partial summary judgment because Plaintiffs’ claims are prescribed.

SLO

(1) The district court erred in finding a taking based on the 2015
amendment to La. R.S. 38:225, which reduced the levee servitude
burden on the landowners;19

(2) The district court erred in granting Plaintiffs’ motion for partial
summary judgment finding La. R.S. 38:225 was a taking as a matter
of law because Plaintiffs failed to carry their burden of proof to
establish the elements of a taking;

(3) The district court failed to enforce the proper burden on the
Plaintiffs where this matter has prescribed on the face of the petition,
and where the undisputed facts demonstrate that any possible taking
that might have occurred happened more than three years prior to the
filing of the lawsuit in 2016; and

19
We note Plaintiffs and FPA/OLD dispute whether there is a servitude. In addition, this issue
was not presented to the district court and the district court did not rule on this issue.
10

(4) The district court erred in failing to dismiss SLO as a defendant as
there was no evidence that it had anything to do with any possible
taking.

La. C.C.P. art. 966(F) provides that “[a] summary judgment may be

rendered or affirmed only as to those issues set forth in the motion under

consideration by the court at that time.” In addition, La. C.C.P. art. 966(D)(2)

provides:

The court may consider only those documents filed in support of or in
opposition to the motion for summary judgment and shall consider
any documents to which no objection is made. Any objection to a
document shall be raised in a timely filed opposition or reply
memorandum. The court shall consider all objections prior to
rendering judgment. The court shall specifically state on the record or
in writing which documents, if any, it held to be inadmissible or
declined to consider.

Generally, the party moving for summary judgment has the burden of proof. Once

the moving party has met its burden on summary judgment, the adverse party must

produce factual support sufficient to establish that he/she will be able to satisfy

his/her evidentiary burden of proof at trial. La. C.C.P. art. 966(D); Davis v. A Bar

& Grill with a Bite, Inc., 19-1928, p. 2 (La. 3/16/20), 294 So.3d 1051, 1052. This

Court set forth the standard of review for a summary judgment in Filmore Parc

Apartments II v. Foster, 18-0359, 2018 WL 5830453, at *11 (La. App. 4 Cir.

11/7/18)(footnote omitted):

“A motion for summary judgment is a procedural device used
when there is no genuine issue of material fact for all or part of the
relief prayed for by the litigant.” Tate v. Touro Infirmary, 17-0714, p.
1 (La. App. 4 Cir. 2/21/18), [317] So.3d [361], 2018 WL 992322, writ
denied, 18-0558 (La. 6/15/18), 245 So.3d 1027 (citing La. C.C.P. art.
966(A)(1)). Generally, the burden of proof rests with the mover. La.
C.C.P. art. 966(D)(1). An appellate court’s standard of review for a
grant of a summary judgment is de novo, and it employs the same
criteria district courts consider when determining if a summary
judgment is proper. Madere v. Collins, 17-0723, p. 6 (La. App. 4 Cir.
3/28/18), 241 So.3d 1143, 1147 (citing Kennedy v. Sheriff of E. Baton
Rouge, 05-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686). In
11

Chanthasalo v. Deshotel, 17-0521, p. 5 (La. App. 4 Cir. 12/27/17),
234 So.3d 1103, 1107 (quoting Ducote v. Boleware, 15-0764, p. 6
(La. App. 4 Cir. 2/17/16), 216 So.3d 934, 939, writ denied, 16-0636
(La. 5/20/16), 191 So.3d 1071), this Court explained:

This [de novo] standard of review requires the appellate
court to look at the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, to determine if they show that no
genuine issue as to a material fact exists, and that the
mover is entitled to judgment as a matter of law. A fact is
material when its existence or nonexistence may be
essential to the plaintiff’s cause of action under the
applicable theory of recovery; a fact is material if it
potentially insures or precludes recovery, affects a
litigant’s ultimate success, or determines the outcome of
the legal dispute. A genuine issue is one as to which
reasonable persons could disagree; if reasonable persons
could reach only one conclusion, no need for trial on that
issue exists and summary judgment is appropriate. To
affirm a summary judgment, we must find reasonable
minds would inevitably conclude that the mover is
entitled to judgment as a matter of the applicable law on
the facts before the court.

“The interpretation of a statute is a question of law that may be decided by

summary judgment.” Gardner v. State, Department of Education, 02-0643, p. 3

(La. App. 1 Cir. 3/28/03), 844 So.2d 311, 313. “When summary judgment is

granted in the context of statutory interpretation, there are no material issues of fact

in dispute and the sole issue before us is a question of law as to the correct

interpretation of the statute at issue.” Milbert v. Answering Bureau, Inc., 13-0022

(La. 6/28/13), 120 So.3d 678, 684 (citation omitted). When issues involve

questions of law, such as interpretation of a statute, a de novo standard of review is

applied. See New Orleans Fire Fighters Pension & Relief Fund v. City of New

Orleans, 17-0320, p. 5 (La. App. 4 Cir. 3/21/18), 242 So.3d 682, 688 (citing Red

Stick Studio Dev., L.L.C. v. State ex rel. Dep’t. of Econ. Dev., 10-0193, p. 9 (La.

1/19/11), 56 So.3d 181, 187). If the appellate court addresses a legal issue, it gives

12

no special weight to the findings of the trial court, but “exercises its constitutional

duty to review questions of law de novo, after which it renders judgment on the

record.” Gardner, 02-0643, pp. 3-4, 844 So.2d at 3134 (citation omitted).

It is well-settled that in interpreting a statute, “[w]hen a law is clear and

unambiguous and its application does not lead to absurd consequences, the law

shall be applied as written and no further interpretation may be made in search of

the legislative intent.” S. Lafourche Levee Dist. v. Jarreau, 16-0788, p. 7 (La.

3/31/17), 217 So.3d 298, 304 (citations omitted). “However, when a statute is

susceptible of more than one interpretation, the court must apply the one that

achieves the legislature’s intent and best comports with the principles of reason

and justice.” Id. (citations omitted). “The starting point for interpretation of any

statute is the language itself.” Id. (quoting Pierce Foundations, Inc. v. JaRoy

Construction, Inc., 15-0785, p. 7 (La. 5/3/16), 190 So.3d 298, 303). The rules of

statutory interpretation require the courts to be bound “to a strict interpretation of

the plain language of the statutory provisions which are before us.” Milbert, 120

So.3d at 684.

DID THE DISTRICT COURT ERR IN GRANTING PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT?

The district court held that the enactment of La. R.S. 38:225 via Acts 2015,

Number 287, Section 1, was a regulatory taking, on its face, of Plaintiffs’

properties. The district court did not consider any facts or evidence, including the

exhibits attached in support of and in opposition to Plaintiffs’ motion for partial

summary judgment. Thus, pursuant to La. C.C.P. art. 966(F), our review is limited

13

to whether the enactment of La. R.S. 38:225 via Acts 2015, Number 287, Section

1, was a regulatory taking of Plaintiffs’ properties on its face, as a matter of law.20

On appeal, FPA/OLD argues that, on its face, La. R.S. 38:225, as amended

in 2015, was a regulation that did not rise to an unconstitutional taking, explaining:

A limited restriction enacted for the public good on the use of a
portion of property does not rise to the level of an unconstitutional
taking. This general principle has long been found in Louisiana
jurisprudence. The Louisiana Supreme Court held in Petit Anse
Coteau Drainage Dist v. Iberia & V.R. Co., “uncompensated
obedience to a regulation enacted for the public safety under the
police power of the state” does not amount to an unconstitutional
taking. 50 So. 512, 517 (La. 1909).

FPA/OLD further argue that La. R.S. 38:225, as amended in 2015, did not transfer

ownership of Plaintiffs’ property to the State, and it did not “deprive them of all

economically beneficial use of property” to constitute an unconstitutional taking on

the face of the statute. FPA/OLD assert that a factual inquiry was necessary to

determine if Plaintiffs’ properties were subject to enforcement of La. R.S. 38:225

and the extent of the alleged taking, if any, and the district court legally erred in

failing to do so.

SLO, likewise, argues that the district court erred in finding La. R.S. 38:225,

as amended in 2015, was a per se taking, writing:

[T]here is absolutely no evidence that the Plaintiffs property
was actually used or destroyed by any public entity, and certainly not
by the Land Office. Instead, the district court has created a
revolutionary new basis for a taking “as a matter of law” based on the

20
This is an issue of first impression. We note that in 17th Street Canal Coalition v. Orleans
Levee District, 09-857 (La. App. 4 Cir. 9/15/09)(unpubl.), the issue before this Court, on writ of
review, was whether there was a servitude on the 17th Street Canal, permitting regulation via La.
R.S. 38:225 of the six-foot area of landowner’s land abutting the 17th Street Canal. In the case
sub judice, however, the issue of a servitude was neither raised in the motions for summary
judgment nor ruled upon by the district court. See La. C.C.P. art. 966(F)(“[a] summary judgment
may be rendered or affirmed only as to those issues set forth in the motion under consideration
by the court at that time.”). Thus, this issue is not properly before this Court at this time.

14

2015 amendment, summarily disposing with the normal requirement
of evidence of an actual taking, use, damage, or destruction.

Conversely, Plaintiffs maintain that Acts 2015 Number 287 was an

unconstitutional, uncompensated taking of their private property, asserting:

Acts 2015, Number 287 was the first legislation to specifically name
the London Avenue Canal, specifically restrict use of properties
abutting the London Avenue Canal, impose civil and criminal
penalties for placing objects on the rear portion of plaintiffs’
properties, and create a potestative condition that would increase the
restrictions, and the promulgation of an onerous permitting process by
the Flood Protection Authority. Plaintiffs’ real estate expert, Jimmie
Thorns, Jr. and the plaintiffs testified by uncontradicted depositions
and affidavits that due to the enactment of Acts 2015, Number 287
(“the Act”), the plaintiffs and the proposed class members: (1) are
unable to experience full and peaceful possession of the property they
own adjoining the levee; (2) are unable to build, plant, landscape, or
use those portions of their property in any meaningful way; (3) have
not been compensated for Act 2015, No. 287, §1’s taking of the strip
of land six (6) feet deep across the entire width of their respective
properties; (4) have continued to pay taxes on the subject property and
all other administrative fees.21

Plaintiffs also dispute Defendants’ position that there was no taking because there

was no physical invasion or deprivation of substantial use. Plaintiffs argue that

restrictions set forth in La. R.S. 38:225 were “substantial and could extend to some

of the Plaintiffs’ homes.”

Although the district court noted that there was no transfer of ownership, the

district court concluded there was a taking as a matter of law. The district court

stated, “I’m inclined to find that it is [a taking] because even without the true

exercise of a taking [,] the fact is that the landowners have limited use of their

properties under the provisions set forth and cannot do certain things to their

properties under the provisions of the statute . . . unless they cross certain hurdles .

21
Plaintiffs further cite to permit and insurance requirements; however, these are not included in
the text of La. R.S. 38:225, which is at issue herein.

15

. . .”22 The district court stressed that no factual inquiry was made as it “is a

question of law and more specifically the issue of whether there is a taking under

the provisions that are applicable to the plaintiff’s [sic] case.”23

In State, Through Dept. of Transp. and Dev. v. Chambers Inv. Co, Inc., 595

So.2d 598, 602 (La. 1992)(citation omitted), the Supreme Court held that an action

for inverse condemnation, which is asserted by Plaintiffs in this case, provides a

procedural remedy for a property owner to seek “compensation for land already

taken or damaged against a governmental or private entity having the powers of

eminent domain where no expropriation has commenced.” “Inverse condemnation

claims derive from the Takings Clauses contained in both the Fifth Amendment of

the U.S. Constitution and Art. I, § 4 of the Louisiana Constitution.” Avenal v. State,

03-3521, p. 26 (La. 10/19/04), 886 So.2d 1085, 1104. To establish inverse

condemnation, a party must show that (1) a recognized species of property right

has been affected; (2) the property has been taken or damaged in a constitutional

sense; and (3) the taking or damaging was for a public purpose under Article I, § 4

of the Louisiana Constitution. Chambers, 595 So.2d at 603; Sewell v. Sewerage &

Water Bd. of New Orleans, 20-0381, 2021 WL 717990, at *6 (La. App. 4 Cir.

2/24/21). In the case sub judice, the district court did not consider elements one (1)

and three (3), but focused on element two (2), i.e., the property has been taken or

damaged in a constitutional sense.

22
It is a “well-settled rule that the district court’s oral or written reasons for judgment form no
part of the judgment, and that appellate courts review judgments, not reasons for judgment.”
Wooley v. Lucksinger, 09-0571, 09-0584, 09-0585, 09-0586, p. 77 (La. 4/1/11), 61 So.3d 507,
572 (quoting Bellard v. American Cent. Ins. Co., 07-1335, p. 25 (La. 4/18/08), 980 So.2d 654,
671). However, a court of appeal may review the trial court’s reasons for judgment to “gain
insight” into the trial court's judgment. Id., 09-0571, 09-0584, 09-0585, 09-0586, p. 78, 61 So.3d
at 572.
23
In the June 18, 2020 judgment, the district court wrote that it did not decide “whether the
taking resulted in any damages” to Plaintiffs.
16

The Takings Clause

Amendment of the U.S. Constitution, provides in

pertinent part: “[N]or shall private property be taken for public use, without just

compensation.”24 Similarly, La. Const. art. I, § 4 (B)(1) and (2) provide, in

pertinent part:

(B)(1) 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 or into court for his benefit. Except as
specifically authorized by Article VI, Section 21 of this Constitution
property shall not be taken or damaged by the state or its political
subdivisions: (a) for predominant use by any private person or entity;
or (b) for transfer of ownership to any private person or entity.

(2) As used in Subparagraph (1) of this Paragraph and in Article VI,
Section 23 of this Constitution, “public purpose” shall be limited to
the following:
***

iii) Drainage, flood control, levees, coastal and navigational protection
and reclamation for the benefit of the public generally.

Both the Takings Clause and La. Const. Article I, § 4, do not eliminate the

state’s police power to enact limitations on the use of private property. Louisiana

Constitution Article I, § 4(A) provides that “[e]very person has the right to acquire,

own, control, use, enjoy, protect, and dispose of private property,” and “[t]his right

is subject to reasonable statutory restrictions and the reasonable exercise of the

police power.”25 “The [regulatory or] police power, unlike the power of eminent

domain, is used to regulate; the power of eminent domain [is] used to acquire

24
FPA/OLD assert, in its reply brief, that Plaintiffs limit their taking claim to the Louisiana law
and do not assert a claim under the Takings Clause of the Fifth Amendment. In their petitions,
however, under causes of action, Plaintiffs’ assert a taking claim citing the Takings Clause of the
Fifth Amendment, and the Louisiana constitution. In addition, as supported by the cases to be
discussed infra, similar analyses are used by a court to determine a taking under the Louisiana
and Federal constitutions.
25
Louisiana Civil Code Article 477 defines “ownership” as “the right that confers on a person
direct, immediate, and exclusive authority over a thing.” “The owner of a thing may use, enjoy,
and dispose of it within the limits and under the conditions established by law.” Id.
17

property from private ownership.” Dep’t of Highways v. Southwestern Elec. Power

Co., 145 So.2d 312, 315-16 (1962)(footnote omitted).

In Annison v. Hoover, 517 So.2d 420, 422 (La. App. 1st Cir. 1987) (citation

omitted), the first circuit explained that “[e]very person holds his property subject

to the valid exercise of police power,” and “[t]he adoption of a regulatory

ordinance or the implementation of zoning are examples of the valid exercise of

police power.” The Louisiana Supreme Court in Faulk v. Union Pac. R.R. Co., 14-

1598, p. 30 (La. 6/30/15), 172 So.3d 1034, 1056-57 (citing Lingle v Chevron

U.S.A. Inc., 544 U.S. 528, 536-37, 125 S.Ct. 2074, 2080 (2005)), held that “federal

jurisprudence recognizes that compensation may be required when a government

regulation of private property is so onerous that its effect is tantamount to a direct

appropriation or ouster [footnote omitted].” In Annison, 517 So.2d at 423, the

appellate court explained that a regulatory taking occurs when the regulation

destroys a major portion of the property value, writing:

Language of the Fifth Amendment of the Federal Constitution
and of Article 1, Section 4 of the Louisiana Constitution provides in
part that private property shall not be taken for public use without just
compensation. This does not prohibit public taking but places
conditions upon public taking. It is clear that regulatory takings and
physical takings are very different. Physical takings are easily
identifiable while regulatory takings may or may not be. Additionally,
regulatory programs that affect property values may or may not
constitute takings. We hold that a regulatory program that adversely
affects property values does not constitute a taking unless it destroys a
major portion of the property’s value. Id. 482 U.S. at ––––, 107 S.Ct.
at 2393, 96 L.Ed.2d at 272 (Stevens, J., dissenting). See Bituminous
Coal Association v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94
L.Ed.2d 472 (1987); Agins v. Tiburon, 447 U.S. 255, 100 S.Ct. 2138,
65 L.Ed.2d 106 (1980).

See also, Neighbors First for Bywater, Inc. v. City of New Orleans/New Orleans

City Council, 17-0256, 2017 WL 6350339, at *8 (La. App. 4 Cir. 12/13/17). In

Simmons v. Bd. of Comm’rs of Bossier Levee Dist., 624 So.2d 935, 951 (La. App.
18

2nd Cir. 1993)(citation omitted), the appellate court explained that “[t]he pivotal

issue [in whether a taking occurred] is whether the governmental interference with

the free use and enjoyment of private property is substantial.” This Court in State,

Dep’t of Soc. Servs. v. City of New Orleans, 95-1757, p. 7 (La. App. 4 Cir.

5/29/96), 676 So.2d 149, 154 (citation omitted), clarified that “[a]n

unconstitutional taking of private property does not result merely because the

owner is unable to develop it to its maximum economic potential.” In Major v.

Pointe Coupee Par. Police Jury, 07-0666, pp. 7-8 (La. App. 1 Cir. 12/21/07), 978

So.2d 952, 957 (citations omitted), the appellate court set forth examples of what

did not constitute a taking such as “[t]he frustration of speculative economic gain

or a lost prospective business opportunity is not a taking . . . [t]he denial of one

avenue of selling or developing property does not amount to a taking . . . . [t]he

reduction in the value of property when considering one of its possible uses is not

necessarily equated with a taking.”

Generally, whether it is a regulation vs. a regulatory taking involves a

factual inquiry. In Layne v. City of Mandeville, 633 So.2d 608, 610 (La. App. 1st

Cir. 1993), quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003,

1015, 112 S.Ct. 2886, 2893 (1992), the appellate court explained:

The Supreme Court recently reiterated that in 70 years of “regulatory
takings” jurisprudence since [Pennsylvania Coal Co.] v Mahon, [260
U.S. 393, 415, 43 S.Ct. 158, 160 (1922)],

we have generally eschewed any “set formula” for
determining how far is too far, preferring to “engag[e] in
. . . essentially ad hoc, factual inquiries.”

19

In addition, in Faulk, 14-1598, p. 30, 172 So.3d at 1057 (citation omitted), the

Louisiana Supreme Court opined:

[N]o magic formula enables a court to judge, in every case, whether a
given government interference with property is a taking. In view of
the nearly infinite variety of ways in which government actions or
regulations can affect property interests, the courts have recognized
few invariable rules in this area. Most takings claims turn on situation-
specific factual inquiries. [Arkansas Game and Fish Commission v.
U.S., 568 U.S. 23 at 32, 133 S.Ct. 511, 517].26

See also Lakeshore Harbor Condo. Dev. v. City of New Orleans, 603 So.2d 192,

195 (La. App. 4th 1992).27

However, the Lucas and Faulk courts recognized two categories of

regulatory action that do not require a case-specific factual inquiry into the public

interest advanced in support of the regulation. In Lucas, the United States

Supreme Court held:

The first encompasses regulations that compel the property owner to
suffer a physical “invasion” of his property. In general (at least with
regard to permanent invasions), no matter how minute the intrusion,
and no matter how weighty the public purpose behind it, we have
required compensation. For example, in Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d
868 (1982), we determined that New York’s law requiring landlords
to allow television cable companies to emplace cable facilities in their

26
The Faulk court continued and explained that “[s]ome considerations for determining whether
a taking has occurred include: the character of the land at issue; the property owner’s distinct
investment-backed expectations, a matter often informed by the law in force in the state in which
the property is located; and the degree to which the invasion is intended or is the foreseeable
result of authorized government action.” Id., 14-1598, p. 30, 172 So.3d at 1057 (citation
omitted).
27
In Lakeshore Harbor Condo. Dev., 603 So.2d at 195, this Court, citing Article 1, Section 4 of
the Louisiana Constitution explained, in pertinent part:

[w]hat constitutes a “taking” is a factual issue based on whether the government’s
action destroys a major portion of the property’s value. Annison v. Hoover, 517
So.2d 420 (La. App. 1st Cir.1987), writ den[ied]., 519 So.2d 148 (La.1988). A
taking is accomplished when the government’s action eliminates the practical
economic uses of a property. Robertson v. Parish of Jefferson, 465 So.2d 787
(La. App. 5th Cir.1985); Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.
1981), cert. den[ied]., 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982).

20

apartment buildings constituted a taking, id., at 435-440, 102 S.Ct., at
375-3178, even though the facilities occupied at most only 1 ½ cubic
feet of the landlords’ property, see id., at 438, n. 16, 102 S.Ct., at
3177. See also United States v. Causby, 328 U.S. 256, 265, and n. 10,
66 S.Ct. 1062, 1067, and n.10, 90 L.Ed. 1206 (1946) (physical
invasions of airspace); cf. Kaiser Aetna v. United States, 444 U.S.
164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (imposition of navigational
servitude upon private marina[28]).

The second situation in which we have found categorical
treatment appropriate is where regulation denies all economically
beneficial or productive use of land.

Id., 505 U.S. at 1015 (citations omitted).29 In Faulk, the Louisiana Supreme Court

reiterated Lucas, explaining:

[T]wo categories of regulatory action have generally been
deemed to be per se takings or ‘total regulatory takings,’ requiring
compensation: (1) when government requires an owner to suffer a
permanent physical invasion of property, however minor; and (2)
when a regulation completely deprives an owner of all economically
beneficial use of property.

Id., 14-1598, pp. 29-30 (La. 6/30/15), 172 So.3d 1034, 1057 (citations omitted);

see also Layne v. City of Mandeville, 633 So.2d at 611; Rivet v. State Dep’t of

Transp. & Dev., 635 So.2d 295, 297 (La. App. 5 Cir. 1994)(quoting Lucas, 505

U.S at 1020)(“[w]hen state activity causes a landowner ‘to sacrifice all

economically beneficial uses in the name of common good, that is, to leave his

property economically idle, he has suffered a taking.’”); and Robinson v. City of

28
In Kaiser Aetna, the federal government required a private marina to allow the public access
based on a navigational servitude. The court held it was a per se taking, because “the imposition
of the navigational servitude in this context will result in an actual physical invasion of the
privately owned marina.” Id., 444 U.S. at 180
29
In Lucas, the petitioner paid $975,000 for two residential lots on the Isle of Palms in
Charleston County, South Carolina, on which he intended to build single-family homes.
Following, the South Carolina Legislature enacted the Beachfront Management Act, S.C. Code
Ann. § 48–39–250 et seq. (Supp. 1990), which had the direct effect of barring petitioner from
erecting any permanent habitable structures on his two parcels.

21

Baton Rouge, No. CV 13-375, 2015 WL 13522820, at *8 (M.D. La. Mar. 20,

2015)(unpubl.).30

Turning to language of La. R.S. 38:225, as amended in 2015, which as

discussed supra is the starting place of statutory interpretation, we conclude that

the language is clear and unambiguous. On its face, La. R.S. 38:225(A)(1)(b)(i)

and (ii) does not compel the property owner to suffer a physical invasion of his/her

30
The Robinson Court provides further insight on the applicable law on this issue:

“The Takings Clause of the Fifth Amendment, made applicable to the
States through the Fourteenth, provides that private property shall not ‘be taken
for public use, without just compensation.’” Lingle v. Chevron U.S.A. Inc., 544
U.S. 528, 536, 125 S. Ct. 2074, 2080 (2005) (internal citation omitted). The
Takings Clause “does not prohibit the taking of private property, but instead
places a condition on the exercise of that power. . . . It is designed not to limit the
governmental interference with property rights per se, but rather to secure
compensation in the event of otherwise proper interference amounting to a
taking.” Id. at 537 (emphasis in original).

The Supreme Court has explained that when a government regulation goes
too far, it constitutes a regulatory taking. Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 415 (1922). However, in 70 years of takings jurisprudence, the Supreme
Court has generally eschewed any “set formula” for determining how far is too
far, and prefers to engage in fact specific inquiries set out in Penn Central
Transportation Co. v. City of New York. 438 U.S. 104, 124 (1978) (looking to
factors to determine whether a taking occurred such as the economic impact on
the claimant, interference with distinct investment-backed expectations, and the
character of the government action). The public interest behind the regulation,
such as the “health, safety, morals, or general welfare,” will also be a factor in the
analysis of whether a regulatory taking has occurred. Penn Central, 438 U.S. at
125. Ultimately, whether a regulatory taking has occurred will depend largely on
the particular circumstances of each case. Id. at 124.

However, the Supreme Court identified two situations which qualify as a
regulatory taking not requiring a case-specific inquiry into the public interest
advanced in support of the restraint: (1) regulations which compel the property
owner to suffer a physical invasion of his property and (2) regulations which deny
“all economically beneficial or productive use of land.” Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1015 (1992). This is significant because if
Defendants’ decision deprived Plaintiffs of all economic benefit in Plaintiffs’
land, Plaintiffs can recover regardless of how important the purposes behind
Defendants’ decision were. See Lucas, 505 U.S. at 1015. However, in
circumstances in which an owner is not deprived of all economic benefit, the
owner would not be able to recover automatically. Id at 1019 n. 8. In these
circumstances, the Penn Central analysis is necessary to determine the extent of
Plaintiffs’ loss. Id.

Robinson, No. CV 13-375, 2015 WL 13522820, at *8.

22

property. Only after notice is given to the property owner to remove an object and

the owner fails to comply, may the governing authority enter the property. In

addition, we cannot say that the statute, on its face, denies Plaintiffs of all

economically beneficial or productive use of the land. In fact, as previously

discussed, the district court noted, “I’m inclined to find that it is [a taking] because

even without the true exercise of a taking [,] the fact is that the landowners have

limited use of their properties under the provisions . . . .” Accordingly, we

conclude that the district court legally erred in finding La. R.S. 38:225 via Acts

2015 Number 287, Section 1 was a per se taking as a matter of law.31

Next, under our de novo review, we must determine if a factual inquiry

supports a taking or inverse condemnation of Plaintiffs’ properties. To establish

inverse condemnation, Plaintiffs had to submit evidence in support of their

summary judgment that (1) a recognized species of property right has been

affected; (2) the property has been taken or damaged in a constitutional sense; and

(3) the taking or damaging was for a public purpose under Article I, § 4 of the

Louisiana Constitution. Based on the affidavits of the Roberts and Ms. Bierria and

the cash sale deed and act of donation from the conveyance records, we find the

first element of inverse condemnation was met. The Roberts and Ms. Bierria, as

the owners of their respective property, had, among other rights, the rights of use

and enjoyment. See Lowenburg v. Sewerage & Water Bd. of New Orleans, 19-

0524, 2020 WL 4364345, at *7 (La. App. 4 Cir. 7/29/20). However, no evidence

was submitted to support ownership by the putative class. Thus, genuine issues of

31
As to the remaining assigned errors, FPA/OLD’s and SLO’s arguments challenging the district
court’s judgment granting Plaintiffs’ motion for partial summary judgment are resolved or
rendered moot by this Court’s conclusion to reverse the district court’s judgment, granting
Plaintiff’s motion for partial summary judgment and remanding the matter.

23

material fact remain as to element one (1) as applied to the putative class. Turning

to the element two (2), has the property been taken or damaged in a constitutional

sense, we find the appellate record is insufficient to determine this factor. As

discussed supra, the district court failed to specifically state which exhibits

submitted by Plaintiffs were inadmissible or those it declined to consider as

required by La. C.C.P. art. 966(D)(2). In addition, the affidavits of Mr. and Mrs.

Roberts and Ms. Bierria, along with each parties’ expert, Mr. Thorns and Mr.

Truax, contained only speculation as to the economic impact of the statute on the

properties.32 Furthermore, in their brief to this Court, Plaintiffs acknowledged they

will have to establish “that their property was taken, the amount of their property

that was taken, the value of the property taken and the severance damage to their

remaining property.” Thus, genuine issues of material fact remain as to whether

the application of La. R.S. 38:225, as amended in 2015, to each of Plaintiffs’

properties is a taking or inverse condemnation. Because there are genuine issues

of fact as to elements one (1) and two (2), the third (3) element need not be

addressed.

Since the district court legally erred in finding La. R.S. 38:225, as amended

in 2015, was a per se taking as a matter of law, and genuine issues of material fact

remain if a taking is supported after a factual inquiry, we reverse the district court’s

judgment as to this issue, and remand for further proceedings consistent with this

opinion.

32
See pertinent contents of affidavits discussed supra. Plaintiffs’ asserted in their brief to this
Court that they “have submitted evidence demonstrating that their property lost about $1.3
million worth of value.” However, Plaintiffs do not cite to specific evidence and a review of the
admissible evidence submitted in support of the summary judgment failed to support Plaintiffs’
assertion.

24

DID THE DISTRICT COURT ERR IN DENYING DEFENDANTS’ CLAIM OF
PRESCRIPTION?

Alternatively, Defendants assert, if there was a taking, Plaintiffs’ claims

have prescribed,33 and the district court erred in denying its claim of prescription.

In response, Plaintiffs assert the “law of the case” doctrine precludes review of

Defendants’ prescription claim, as this Court has previously denied review. In

Leblanc v. 1555 Poydras Corp., 14-0610, pp. 6-7 (La. App. 4 Cir. 12/17/14), 156

So.3d 1222, 1226, this Court explained in pertinent part:

We first note that a writ denial, as well as the reasons given
therefor, are not authoritative and do not make law. Davis v. Jazz
Casino Co., L.L.C., 03-0276, 03-1223, p. 1 (La. 6/6/03), 849 So.2d
497, 498. A denial of supervisory review does not constitute the
court’s considered opinion on the allegations made in a writ
application, but is merely a decision not to exercise the extraordinary
powers of supervisory jurisdiction in that case. Johnson v. Mike
Anderson’s Seafood, Inc., 13-0379, p. 5 (La. App. 4 Cir. 6/11/14), 144
So.3d 125, 130; State v. Whitton, 99-1953, p. 16 (La. App. 4 Cir.
9/27/00), 770 So.2d 844, 853; Sattar v. Aetna Life Ins. Co., 95-1108,
pp. 3-4 (La. App. 4 Cir. 3/20/96), 671 So.2d 550, 552. . . . [T]he
denial does not bar reconsideration of, or a different conclusion on,
the same question when an appeal is taken from a final judgment
[citations omitted].

Thus, this Court is not barred from reviewing Defendants’ claims of

prescription.

Turning to Defendants’ prescription claim, “[w]hen prescription is raised by

motion for summary judgment, review is de novo, using the same criteria used by

the district court in determining whether summary judgment is appropriate.” Hogg

v. Chevron USA, Inc., 09-2632, p. 6 (La. 7/6/10), 45 So.3d 991, 997 (footnote

omitted)(citations omitted). In Crooks v. Dep’t of Nat. Res., 19-0160, 2020 WL

499233, at *8 (La. 1/29/20)(opinion corrected on reh’g on other grounds (Apr. 9,

33
See procedural history on the exception of prescription and prescription urged in Defendants’
motions for summary judgment discussed supra.

25

2020)), the Supreme Court held that, when a dispute is between a plaintiff and the

state, and the state is the “taker” of the land, a plaintiff’s claim for compensation is

governed by the three-year prescriptive period set forth in La. R.S. 13:5111. The

Crooks court noted that “[p]ursuant to La. R.S. 13:5111, prescription begins to run

when the claimant is aware of those facts which give rise to a cause of action.” Id.

(citation omitted).

In the present case, this Court determined that La. R.S. 38:225, as amended

in 2015, was not a taking on its face as a matter of law, and there are genuine

issues of material fact remaining as to whether there was taking or inverse

condemnation of Plaintiffs’ properties by application of La. R.S. 38:225, as

amended in 2015. Thus, genuine issues of material fact remain as to the

prescription issue. We find no error in the district court’s judgment, denying

Defendants’ prescription claim.

DID THE DISTRICT COURT ERR IN FAILING TO DISMISS SLO AS A
DEFENDANT?

On appeal, SLO asserts it is not a proper party, because it was “uninvolved

in and unaware of the 2011 and 2015 amendments.” SLO raised this claim in its

opposition to Plaintiffs’ motion for partial summary judgment. 34 At the hearing on

the motion, counsel for SLO stated, “even if you find on the face of 38[:]225 is a

taking[,] that’s a claim against the legislature.” At the conclusion of SLO’s

argument, the district court stated it was not dismissing any of the defendants, and

in the June 18, 2020 judgment, wrote that it was not deciding at that time if there
34
Louisiana Code of Civil Procedure article 966(F) provides in part that “[a] summary judgment
may be rendered or affirmed only as to those issues set forth in the motion under consideration
by the court at that time.” The 2015 Comments to Article 966 state that “Paragraph F makes
clear that, in deciding a motion for summary judgment, a court can consider only the issues
raised in the motion or opposition filed by the parties,” and “[t]he court cannot rule on issues not
raised by the parties.”

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was a taking by Defendants. As the district court has not resolved this issue, we

find it is not properly before this Court for review. Accordingly, this issue was not

considered.

CONCLUSION

The district court’s judgment, granting Plaintiffs’ motion for partial

summary judgment is reversed, and the matter is remanded to the district court for

further proceedings consistent with this opinion. As to the district court’s denial of

Defendants’ prescription claims, we affirm the district court’s judgment.

Furthermore, SLO’s request to be dismissed as a defendant is not properly before

this Court; thus, it was not considered.

REVERSED IN PART;
AFFIRMED IN PART;
REMANDED

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