April Markiewicz, wife of/and Mark Markiewicz v. Sun Construction, LLC, Penn Mill Lakes, LLC, and Cooper Engineering, Inc, A Professional Engineering Corporation

STATE OF LOUISIANA

7Z-f / COURT OF APPEAL

FIRST CIRCUIT

2020 CA 1211

jrdAPRIL MARKIEWICZ, WIFE OF/ AND MARK MARKIEWICZ
VERSUS

SUN CONSTRUCTION, L.L.C., PENN MILL LAKES, L. L. C., AND COOPER
ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION

CONSOLIDATED WITH --

2020 CA 1212

JANET SHEA, WIFE OF/ AND ALPHONSE SHEA

VERSUS

SUN CONSTRUCTION, L.L.C.; SUNRISE CONSTRUCTION AND DEVELOPMENT,
L.L.C.; PENN MILL LAKES, L.L.C.; COOPER ENGINEERING, INC., A PROFESSIONAL
ENGINEERING CORPORATION

CONSOLIDATED WITH --

2020 CA 1213

PATRICIA GRANT WIFE OF/ AND RICHARD GRANT; ET. AL., INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

VERSUS

SUN CONSTRUCTION, L.L.C., PENN MILL LAKES, L.L.C., SUNRISE CONSTRUCTION
AND DEVELOPMENT, L.L.C., AND COOPER ENGINEERING, INC., A PROFESSIONAL
ENGINEERING CORPORATION

JUDGMENT RENDERED: AN 2 2 2021

Appealed from the Twenty -Second Judicial District Court
In and for the Parish of St. Tammany • State of Louisiana
Docket No. 2006- 16084 c/w 2008- 10737 chv 2008- 11536 • Division I

The Honorable Reginald Badeaux, III, Judge Presiding

Maurice LeGardeur COUNSEL FOR APPELLANTS Glen E. Mercer COUNSEL FOR APPELLEE
Covington, Louisiana PLAINTIFFS— April Markiewicz, Kourtney French Twenhafel DEFENDANT— Clarendon
and Mark Markiewicz, Janet Shea, New Orleans, Louisiana America Insurance

Adam S. Lambert Alphonse Shea, Patricia Grant, Company
New Orleans, Louisiana Richard Grant, Marguerite Guarino,
William Guarino, Sheron Sprawls, Robert I. Siegel COUNSEL FOR APPELLEE
Vernon Sprawls, Dianne White, Tucker T. Bohren DEFENDANT— Insurance
New Orleans, Louisiana Company ofthe State of
Pennsylvania
Johnny White, Jo Anne Youngblood,
William Youngblood, Lynell Rowan,
Alvin Rowan, Gayle Ayo, James
Ayo, Deborah Lascari, Daniel
Lascari, and on behalf of All Others Andrian G. Nadeau COUNSEL FOR APPELLEES
Brad M. Barback DEFENDANTS— John E.
Similarly Situated
Baton Rouge, Louisiana Bonneau and John E. Bonneau
and Assoc., Inc.
Thomas P. Anzelmo, Sr. COUNSEL FOR APPELLEES
David M. Moragas COUNSEL FOR APPELLEE
Lynda Tafaro DEFENDANTS— St. Tammany Parish
New Orleans, Louisiana Government, James A. (Red) Mandeville, Louisiana DEFENDANT— Zurich

Thompson, and Jean M. Thibodeaux American Insurance Co.

APPELLEE J. Scott Loeb COUNSEL FOR APPELLEES
Louis E. Koerner, Jr.
New Orleans, Louisiana DEFENDANT— Pro Se Jonas P. Baker DEFENDANTS— Sun
Mandeville, Louisiana Construction, LLC;
and Lawrence A. Kornman; Penn
Carl T. Conrad Mill Lakes, LLC; and Sunrise
C. T. Williams, Jr. Construction Development,
Aldric C. Poirier, Jr. LLC
Mandeville, Louisiana
and

John S. Lawrence, Jr.
Mandeville, Louisiana

BEFORE: WHIPPLE C. J., WELCH, AND CHUTZ, J.T.

WELCH, J.

The plaintiffs appeal an amended judgment granting the motion for

summary judgment filed by defendants the St. Tammany Parish Government

STPG"), James A. "Red" Thompson, and Jean M. Thibodeaux, P. E., denying the

motion for partial summary judgment filed by the plaintiffs, granting the cross-

motion for partial summary judgment filed by defendant the STPG, and dismissing

the plaintiffs' claims against the STPG, Mr. Thompson, and Mr. Thibodeaux. Also

before this Court is a motion to strike the plaintiffs' ( appellants') reply brief filed

by the defendants ( appellees) and a responsive request by the plaintiffs for

sanctions. For the reasons that follow, we affirm in part and reverse in part the

judgment of the trial court; we grant in part and deny in part the motion to strike;

we deny the plaintiffs' request for sanctions; and we remand for further

proceedings.

FACTUAL AND PROCEDURAL HISTORY

The underlying litigation herein arises out of several consolidated lawsuits

involving a drainage project and the subsequent flooding of Penn Mill Lakes

Subdivision (" the Subdivision") in St. Tammany Parish, Louisiana. The plaintiffs,

who are homeowners in the Subdivision, filed suit against various entities involved

in the drainage project and their insurers seeking to recover damages resulting

from the flooding. More specifically, April and Mark Markiewicz filed suit on

December 8, 2006, and Janet and Alphonse Shea filed suit on February 8, 2008,

asserting claims under the New Home Warranty Act, La. R.S. 9: 3141, et seq., and

alleging that the defective design, construction, and planning of the drainage

system had caused flooding in the Subdivision.' Thereafter, on March 20, 2008,

Patricia Grant, Richard Grant, Marguerite Guarino, William Guarino, Sheron

Sprawls, Vernon Sprawls, Dianne White, Johnny White, Jo Ann Youngblood,

I The Sheas alternatively alleged claims in negligence, strict liability, and nuisance.
2

William Youngblood, Lynell Rowan, Alvin Rowan, Gayle Ayo, James Ayo,

Deborah Lascari,2 and Daniel Lascari filed a class action petition, individually and

on behalf of all others similarly situated. In that petition, plaintiffs asserted claims

in negligence, strict liability, and nuisance and also alleged that the drainage

system utilized throughout the Subdivision, which included drainage retention

ponds/ lakes, was defective in design, as constructed, and as installed. These

matters were ultimately consolidated by judgments dated January 6, 2009, and the

class action petition was amended numerous times thereafter.

Pursuant to the original and amended class action petitions, plaintiffs' named

as defendants various individuals and entities allegedly involved in the design,

construction, approval, and maintenance ( or lack thereof) of the drainage system in

the Subdivision.' At issue herein are the claims asserted in the plaintiffs' third

amended class action petition,5 filed on June 13, 2014, wherein the plaintiffs

2 Deborah Lascari subsequently withdrew as a plaintiff/member of the putative class.

3 Pursuant to the fourth amended class action petition, plaintiffs named Susan Casey and Penn
Mill Lakes Homeowners' Association as additional plaintiffs.

The named defendants include: Penn Mill Lakes, L.L.C., and Sunrise Construction and
Development, L.L.C., as the developers of the Subdivision; Sun Construction, L.L.C., as the
general contractoribuilder of the Subdivision; Lawrence Kornman, as the manager of Sun
Construction and Penn Mill Lakes, L.L.C.; Cooper Engineering, Inc. and its successor

corporation, as the engineering firm responsible for designing the drainage system in the
Subdivision; Leroy Cooper, as the alleged owner of Cooper Engineering and the employee
principally responsible for the design of the drainage system in the Subdivision; the STPG;
James A. " Red" Thompson, the St. Tammany Parish Councilman for the geographic area that
includes the Subdivision; and Jean M. Thibodeaux, P.E., the Director of Engineering and Parish
Engineer for the STPG, for the approval of the development, issuance of building permits, and
alleged acceptance of the streets, swales, drainage system, and retention ponds/ lakes into parish
ownership and maintenance; John E. Bonneau and John E. Bonneau & Associates, Inc., who
provided professional land surveying services on behalf of the developers of the Subdivision,
including the preparation of elevation certificates that were provided to the homeowners; and
certain insurers of various defendants.

5 In the second amended class action petition, the plaintiffs added the STPG as defendants. The
plaintiffs claimed that the STPG knew that there would be serious drainage and flooding
problems in the Subdivision and that the STPG knew that its flood and subdivision ordinances
were not being followed by the defendants that designed the Subdivision. The plaintiffs further
alleged that despite this knowledge and its knowledge of potential flooding issues, the STPG
approved the initial development and later phases and that it continued to issue permits and to
authorize the construction of homes for sale to the public in the flood -prone area. Thus, the
plaintiffs claimed that the STPG actively breached its obligations to the plaintiffs by approving
the Subdivision and issuing construction permits. In response to the plaintiffs' second amended
petition, STPG filed an answer generally denying the allegations of liability and asserting various
affirmative defenses, including that it was entitled to discretionary immunity with respect to the
3

named as additional defendants the STPG, a public entity, asserting it was

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 in allowing permits to be issued in

an obviously poorly drained subdivision; James A. " Red" Thompson, the St.

Tammany Parish Councilman for the geographic area that included the

Subdivision; and Jean M. Thibodeaux, P. E., the Director of Engineering and Parish

Engineer for the STPG ( collectively " the STPG defendants"). In the third

amended class action petition, the plaintiffs essentially alleged that the STPG

defendants knew that the Subdivision would flood unless the St. Tammany Parish

Flood Hazard Area Ordinance, Parish Ordinance Sec. 7- 016.00, et seq. ( sometimes

referred to as " the flood ordinances") and St. Tammany Parish Subdivision

Regulations, Ordinance Number 499 ( Appendix B, Chapter 40) ( sometimes

referred to as " Subdivision Ordinance 499" or " the subdivision ordinances") were

complied with by the designers of the Subdivision; they knew that the flood and
subdivision ordinances were not complied with by the designers of the

Subdivision; and although the STPG defendants were mandated to uphold those

flooding and subdivision ordinances, they intentionally suppressed and conspired

with the developers and designers of the Subdivision not to enforce or require

compliance with those ordinances because the STPG defendants approved the

initial development and later phases of the Subdivision and issued building permits

and those defendants intentionally concealed this information from the plaintiffs

and potential purchasers of property in the Subdivision. The plaintiffs also alleged

that the STPG " ultimately accepted the dedication of the streets, swales, drainage

approval of subdivisions and the issuance of building permits pursuant to various statutes
discussed hereinafter. In addition, the STPG filed a peremptory exception raising the objection
of no cause of action on the same basis ( discretionary immunity), which the trial court sustained.
In connection therewith, the trial court dismissed the plaintiffs' claims against the STPG without
prejudice and granted the plaintiffs leave to amend their petition. Thereafter, the plaintiffs filed
the third amended class action petition at issue herein.
Cl

system, and retention ponds[/ lakes] into Parish/public ownership and maintenance

thereby inheriting the problems created by the [ designers] of this STPG- approved

subdivision" and that "[ i] nasmuch as STPG has accepted perpetual maintenance,

despite prior knowledge of the design defects and flooding problems by parish

officials, the STPG [ was] a party needed for just adjudication" under La. C. C.P.

art. 641.

In response to the third amended class action petition, the STPG defendants

filed an answer, essentially denying liability and asserting various affirmative

defenses, including that, in accordance with La. R.S. 9:2798. 1, they were entitled

to discretionary immunity for the act of approving or disapproving a subdivision

pursuant to La. R.S. 33: 101. 1; for the performance or non-performance of acts

related to the enforcement of building and construction codes, drainage

improvements, structures, and other improvements to immovable property

pursuant to La. R.S. 40: 1730. 23( C) and La. R.S. 33: 4771, et seq.; and for the acts

of members of boards, commissions, or authorities of political subdivisions

pursuant to La. R.S. 9: 2792.4.

Thereafter, on June 8, 2018, the STPG defendants filed a motion for

summary judgment on the issue of discretionary immunity and seeking the

dismissal of the plaintiffs' claims of conspiracy, fraud, and unfair trade practices

against the STPG defendants. The plaintiffs then filed a motion for partial

summary judgment on the issue of the Subdivision drainage system, including the

ponds/lakes being subject to a public servitude of drainage in favor of the Parish,
such that the Parish was responsible for its upkeep, maintenance and operation.

The STPG defendants responded with a cross-motion for partial summary

judgment seeking judgment declaring that the Penn Mill Lakes Homeowners'
Association (" the HOA") ( as opposed to the STPG) was the owner of and solely

5

responsible for the operation and maintenance of the drainage retention

ponds/ lakes in the Subdivision.

All of these motions were heard and considered by the trial court on

November 13, 2018. Pursuant to written reasons for judgment issued on February

141) 2019, the trial court granted the motion for summary judgment filed by the

STPG defendants with respect to immunity for discretionary acts; granted the

cross- motion for summary judgment filed by the STPG with respect to the

ownership of the drainage ponds/ lakes, declaring that the HOA was the owner of

the drainage ponds/ lakes, that the drainage ponds/ lakes had not been accepted into

maintenance by the STPG, and that the HOA was responsible for the operation and

maintenance of the drainage ponds/ lakes in the Subdivision; and dismissed all of

the plaintiff's claims against the STPG defendants with prejudice. An amended

judgment6 in accordance with the trial court' s written reasons was signed on June

17, 2020, and it is from this judgment that the plaintiffs have appealed, essentially

challenging the trial court' s rulings with respect to all three motions.'

6 The original judgment, signed by the trial court on February 14, 2019, was appealed; however,
that appeal was dismissed for lack of jurisdiction because the original judgment lacked
appropriate decretal language and could not be considered a final judgment for purposes of
appeal. See Markiewicz v. Sun Construction, LLC, 2019- 0869 ( La. App. 1St Cir. 5/ 28/ 20) 304
So. 3d 877, 880- 881. An amended judgment containing appropriate decretal language was
subsequently signed by the trial court on June 17, 2020, and this appeal was taken from that
judgment.

7 While this appeal was pending, the STPG defendants filed a motion to strike portions of the
plaintiffs' reply brief, contending that it violated Uniform Rules, Courts of Appeal— Rule 2- 7.2
and 2- 12. 6 because it was not " strictly confined to rebuttal of points" raised by the STPG
defendants' brief and raised new issues that the plaintiffs had not raised in their original brief or
before the trial court. More specifically, the STPG defendants contend that the plaintiffs raised
the issue of whether the STPG defendants' conduct fell within an exception to discretionary
immunity, whether the subdivision ordinance was a building code ( with an attempt to include a
copy of the table of contents for the St. Tammany Parish Code of Ordinances), whether

discretionary immunity applied to the approval of construction and developments in FEMA flood
hazard zones, and whether the plaintiffs were being subjected to dual taxation by requiring the
HOA to maintain the ponds/ lakes.

In response, the plaintiffs contend that the STPG defendants' motion is meritless and
requests that the STPG defendants be sanctioned. The plaintiffs maintain that the issue relative
to whether the STPG defendants' conduct fell within the exception to discretionary immunity
was previously raised before the trial court and in its original brief. In addition, the plaintiffs
contend that the other issues raised in their reply brief were also raised in its reply brief in
Markiewicz, 304 So. 3d 877, which was the appeal that was dismissed due to the lack of decretal
language in the judgment.

G

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-

scale trial when there is no genuine issue of material fact. Jones v. Anderson,

2016- 1361 ( La. App. 1st Cir. 6/ 29/ 17), 224 So. 3d 413, 417. After an opportunity

for adequate discovery, a motion for summary judgment shall be granted if the

motion, memorandum, and supporting documents show 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( A)(3).

The burden of proof rests on the mover. Nevertheless, if the mover will not

bear the burden of proof at trial on the issue that is before the court on the motion

for summary judgment, the mover' s burden on the motion does not require him to

negate all essential elements of the adverse party' s claim, action, or defense, but

rather to point out to the court the absence of factual support for one or more

elements essential to the adverse party' s claim, action, or defense. The burden is

then on the adverse party to produce factual support sufficient to establish the

existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law. La. C. C. P. art. 966( D)( 1).

On the other hand, when the mover will bear the burden of proof at trial, the

mover has the burden of showing that there is no genuine issue of material fact and

that the mover is entitled to judgment as a matter of law. Only when the mover

makes this showing does the burden shift to the opposing parry to present evidence

After reviewing the record on appeal, the motions for summary judgment and the briefs
filed herein, we find that the issue relative to whether the STPG defendants' conduct fell within
the exception to discretionary immunity was raised in the plaintiffs' third amended class action
petition, before the trial court on the STPG defendants' motion for summary judgment, and on
appeal in the plaintiffs' original brief. Therefore, we deny that portion of the motion to strike.
However, we also find that the remaining issues, i.e., whether the subdivision ordinance is a
building code ( with the attempt to include a copy of the table of contents for the St. Tammany
Parish Code of Ordinances), whether discretionary immunity applies to the approval of
construction and developments in FEMA flood hazard zones, and whether the plaintiffs are being
subjected to dual taxation by requiring the HOA to maintain the ponds/lakes are new issues that
were not raised in the trial court or by the appellants original brief on appeal herein. Therefore,
we grant that portion of the motion to strike and will not consider those issues on appeal. For the
same reason, we deny the plaintiffs' request for sanctions.
7

demonstrating a material factual issue remains. Action Oilfield Services, Inc. v.

Energy Management Company, 2018- 1146 ( La. App. 11t Cir. 4/ 17/ 19), 276

So. 3d 538, 542. If, however, the mover does not resolve all material issues of fact,

the burden never shifts to the opposing party. In that situation, the opposing party

has nothing to prove in response to the motion for summary judgment, and

summary judgment should be denied. See Hat' s Equipment, Inc. v. WHM,

L.L.C., 2011- 1982 ( La. App. 1St Cir. 5/ 4/ 12), 92 So. 3d 1072, 1076.

On appeal, summary judgments are reviewed de novo using the same criteria

district in determining whether summary judgment is
used by the court

appropriate. See Hogg v. Chevron USA, Inc., 2009- 2632 ( La. 7/ 6/ 10), 45 So. 3d

991, 996. Thus, the appellate court asks the same questions as the district court:

whether there is any genuine issue of material fact and whether the mover is
entitled to judgment as a matter of law. Crosstex Energy Services, LP v. Texas

Brine Company, L.L.C., 2017- 0895 ( La. App. 1St Cir. 12/ 21/ 17), 240 So. 3d 932,

936, writ denied, 2018- 0145 ( La. 3/ 23/ 18), 238 So. 3d 963. Because it is the

applicable law that determines materiality, whether a particular fact in dispute is

material" for summary judgment purposes can be seen only in light of the

substantive law applicable to the case. Dickerson v. Piccadilly Restaurants, Inc.,

99- 2633 ( La. App. 1St Cir. 12/ 22/ 00), 785 So. 2d 842, 844.

DISCRETIONARY IMMUNITY
The STPG Defendants ' Motionfor Summary Judgment)

As set forth above, the STPG defendants filed a motion for summary

judgment as to their affirmative defense of discretionary immunity, seeking the

dismissal of the plaintiffs' claims against them for approving the Subdivision and
The STPG
issuing permits, and for conspiracy, fraud, and unfair trade practices.

defendants contend that they complied with the subdivision and flood ordinances,
but nonetheless, as a matter of law, under the provisions of La. R.S. 9:2798. 1, the
its] discretionary
STPG], as a public body, [ was] immune from suit for [

decisions, including the approval of subdivisions, the issuance of building permits,

and the enforcement of building codes, as specifically provided" for in La. R.S.

33: 101. 1, 33: 4471, et seq., and 40: 1730. 23( C). The STPG defendants also point

out that the plaintiffs have no facts to support their allegations of conspiracy, fraud,

or unfair trade practices, and therefore, the dismissal of those claims is warranted.

In opposition to the STPG defendants' motion for summary judgment, the

plaintiffs argue that compliance with the subdivision and flood ordinances was

mandatory, not discretionary and thus, discretionary immunity does not apply to

the STPG defendants' actions in issuing permits and approving the Subdivision.

The plaintiffs also argue that the STPG defendants' actions and omissions in

violating STPG' s own flood and subdivision ordinances constituted a conspiracy,

fraud, or unfair trade practice, and thus falls outside of the discretionary immunity

provisions set forth in La. R. S. 9: 2798. 1( C)( 2).

Louisiana Revised Statutes 9: 2798. 1 provides, in pertinent part:

A. As used in this Section, " public entity" means and includes the
state and any of its ... political subdivisions and the ... and employees

of such political subdivisions.

B. Liability shall not be imposed on public entities or their officers or
employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when
such acts are within the course and scope of their lawful powers and
duties.

C. The provisions of Subsection B of this Section are not applicable:

2) To acts or omissions which constitute criminal, fraudulent,

malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct.

Emphasis added)

The plaintiffs' petition, as amended, alleges and the STPG defendants admit

that the STPG is a political subdivision of the State of Louisiana, that Mr.

Thompson as a Councilman for the Parish of St. Tammany is an officer of STPG,

and that Mr. Thibodeaux was employed by the STPG as the Director of

01

Engineering and Parish Engineer. Thus, pursuant to La. R.S. 9: 2798. 1, the STPG

defendants are entitled to immunity for discretionary actions that are within the

course and scope of their lawful powers and duties, unless those actions constitute

criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or

flagrant misconduct.

In Simeon v. Doe, 618 So. 2d 848, 852- 853 ( La. 1993) and Fowler v.

Roberts, 556 So. 2d 1, 15 ( La. 1989) ( on rehearing), the Louisiana Supreme Court

adopted the test laid out by the United States Supreme Court in Berkovitz by

Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L.Ed.2d 531

1988) to determine whether the discretionary acts doctrine applied to shield public

entities from liability. First, a court must determine whether a statute, regulation,

or policy specifically prescribes the course of action for the employees or agency

to follow; if so, there is no discretion on the part of the employee or agency, and

therefore, no immunity. Simeon, 618 So.2d at 852- 853; Fowler, 556 So.2d at 15.

If a court determines discretion is involved, the court must then determine whether

that discretion is the kind which is shielded by the exception, that is, one grounded

in social, economic, or political policy. Simeon, 618 So. 2d at 853; Fowler, 556

So. 2d at 15. If it is, the doctrine applies and the employee or agency is insulated

from liability; if it is not, the employee or agency is liable for any negligence.

Simeon, 618 So.2d at 853; Fowler, 556 So.2d at 15.

The plaintiffs contend that the STPG defendants' actions fail the first part of

this test because compliance with the flood and subdivision ordinances is

mandatory. However, the plaintiffs' third amended class action petition does not

allege that the STPG defendants had any role in the actual construction of the

Subdivision or its drainage facilities that were purportedly not in compliance with

the flood and subdivision ordinances. Rather, the plaintiffs allege that the STPG

defendants approved the subdivision developments ( both the initial and subsequent

10

phases)
and issued building permits, even though the STPG defendants allegedly
knew that the flood and subdivision ordinances had not been complied with.

In conjunction with La. R.S. 9: 2798. 1, La. R.S. 40: 1730.23( C) specifies that

certain actions constitute "
discretionary acts" by providing as follows:

In connection with the construction of any building, structure, or
other improvement to immovable property, neither the performance of
any enforcement procedure nor any provision of a building code shall
constitute or be construed as a warranty or guarantee by a
governmental enforcement agency as to durability or fitness, or as a
warranty or guarantee by a governmental enforcement official or a
third -party provider who contracts with a municipality or parish as
provided for in R.S. 40: 1730. 24( A), that said building, structure, or
other improvement to immovable property or any materials,

equipment, or method or type of construction used therein is or will be
free from defects, will perform in a particular manner, is fit for a
particular purpose, or will last in any particular way. In the
enforcement of any provision of a construction code provided for in
this Part, or any regulations governed by R.S. 33: 4771[,] et seq., the
performance or non-performance ofany procedure by a governmental
enforcement agency, contract employee, or official shall be deemed to
be a discretionary act and shall be subject to the provisions of R.S.
9: 2798. 1.
Emphasis added).

Under the regulations governed by La. R.S. 33: 4771,. et seq., we note that

La. R.S. 33: 4771( 5) defines an "[ e] nforcement procedure" as:

any act, action, or failure to take action by a public servant or
enforcement agency in connection with the implementation of any
provision of a building code, including but not limited to the
examination or review of any plan, drawing, or specifications, the
conducting or completion of any inspection, the issuance, denial, or
revocation of any permit, permission, license, or certificate, and the
granting ofany approval of construction.
Emphasis added).

Additionally, La. R.S. 33: 4471( 2) provides that a "[ b] uidding code" is
electrical, fire prevention, or
any building, mechanical, plumbing,
other regulatory code or ordinance adopted by apolitical subdivision
which establishes minimum standards for the use, occupancy, design,
construction, alteration, installation, repair,
planning, engineering,
maintenance, location, removal, or demolition of any building,
structure, or improvement to immovable property or for the quality of
materials or equipment used in connection therewith.
Emphasis added).

11

Moreover, La. R.S. 33: 4771( 7) defines an "[ i] mprovement" to mean " any

permanent alteration, addition, embellishment, or betterment of immovable

property or any modification of land by man, including but not limited to roads,

pipelines, sewerage facilities, grating, drainage facilities, levees, or other flood

control facilities." ( Emphasis added).

In addition, La. R.S. 33: 4772 provides that the enforcement of building

codes by a political subdivision does not impose any duty upon a political

subdivision to any individual group or group of persons, as it provides:

The legislature hereby finds and declares that:

1) The policy, purpose, and intent for the promulgation and adoption
of a building code by a political subdivision is to promote the safety,
health, morals, and general welfare of the community.

2) The policy, purpose, and intent of the enforcement of a building
code by an enforcement agency is the reasonable protection of the
safety, health, morals, and general welfare of the public.

3) Nothing contained in this Subpart or in any building code shall be
construed as establishing or imposing upon a political subdivision a
duty, special or otherwise, to or for the benefit of any individual
person or group of persons.

Similarly, La. R.S. 33: 4773( D) provides that the performance of an enforcement

procedure does not constitute any type of warranty or guarantee of fitness, and it

provides

In connection with the construction of any building, structure, or other
improvement to immovable property, neither the performance of any
enforcement procedure nor any provision of a building code shall
constitute or be construed as a warranty or guarantee by an
enforcement agency as to durability or fitness, or as a warranty or
guarantee by an enforcement agency that said building, structure, or
other improvement to immovable property or any material,

equipment, or method or type of construction used therein is or will be
free from defects, will perform in a particular manner, is fit for a
particular purpose, or will last in any particular way.

approval of a
Lastly, La. R.S. 33: 101. 1 specifically provides that the

subdivision plat involves the exercise of discretion, and does not impose a duty for

the benefit of any individual or group of persons by providing:

12

Except as otherwise provided in this Subpart, the act ofapproving or
disapproving a subdivision plat is hereby declared a legislative
function involving the exercise of legislative discretion by the
planning commission, based upon data presented to it; provided that
any subdivision ordinance enacted by the governing authority of a
parish or municipality or the acts of the planning commission, or
planning administrator shall be subject to judicial review on the
grounds of abuse of discretion, unreasonable exercise of police

powers, an excessive use of the power herein granted, or denial of the
right of due process. The right of judicial review of a subdivision
ordinance shall not be limited by the foregoing, however, nothing
contained in this Subpart or in any subdivision ordinance adopted by a
parish or municipality shall be construed as imposing upon such
parish or municipality a duty, special or otherwise, to or for the
benefit of any individual person or group of persons.
Emphasis added).

Thus, by statute, the review of plans, the conducting of inspections, the

issuance of building permits, and the approval of construction or other

improvements to immovable property, including drainage and flood control

facilities, the approval of subdivisions, and the enforcement of building codes by

public entities, their officers, or their employees, are discretionary actions for

which they are immune from liability, unless those actions constitute criminal,

fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant

misconduct. Furthermore, such actions do not constitute a warranty or guarantee

of fitness.

As previously set forth, the plaintiffs' third amended class action petition

alleges that the STPG defendants are liable for approving the Subdivision and

issuing building permits when the Subdivision' s developers and designers failed to
comply with the flood and subdivision ordinances. While the STPG defendants

maintain that the Subdivision' s developers and designers complied with the flood

and subdivision ordinances, by statute, the STPG defendants are immune from

liability for such discretionary actions, including approving the Subdivision and
unless those actions constitute criminal, fraudulent,
issuing building permits,

malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. In this

the plaintiffs assert that the STPG defendants' actions constituted a
regard,

13

conspiracy, fraud, and unfair trade practices. Thus, at trial, in order establish

liability on the part of the STPG defendants, the plaintiffs will have the burden of

proving their claims of conspiracy,' fraud,' or unfair trade practices.' o

As previously set forth, defendants contend in their motion for summary

judgment, that there is an absence of factual support for the plaintiffs' claims of

conspiracy, fraud, and unfair trade practices, as no such acts by the STPG

defendants have been established. In support thereof, the STPG defendants rely on

and point to the deposition testimony of all of the plaintiffs, including a

representative of the HOA, as well as the deposition of Leroy J. Cooper, the

engineer involved in the design and development of the Subdivision, including its

drainage system and with whom the STPG defendants allegedly conspired.

Notably, none of the plaintiffs were able to testify that they had any evidence or

knowledge of a conspiracy, fraud, violations of ordinances, or other acts

constituting unfair trade practices by or involving the STPG defendants.

After thoroughly reviewing the depositions of the plaintiffs, we find, on de

novo review, that the STPG defendants met their burden of pointing out the

8 The term " conspiracy" generally means a plan by two or more persons to accomplish some
unlawful, immoral, criminal, or evil purpose. Payne v. Stanley, 53, 773 ( La. App. 2" d Cir.
3/ 3/ 21), — So. 3d _, _____, 2021 WL 800573 * 4, writ denied, 2021- 00480 ( La. 5/ 25/ 21)_
So. 3d _, 2021 WL 2102575. In order to recover under a theory of civil conspiracy, a plaintiff
must show that an agreement existed among the defendants to commit the tortious act which
caused the plaintiff' s injury. Id.

9 Fraud is a misrepresentation or a suppression of the truth made with the intention either to
obtain an unjust advantage for one party or to cause a loss or inconvenience to the other; fraud
may also result from silence or inaction. La. C. C. art. 1953. In order to recover for fraud, the
plaintiff bears the burden of proving ( 1) a misrepresentation of material fact, ( 2) made with the
intent to deceive, and ( 3) causing justifiable reliance with resultant injury. Renton Properties,
LLC v. 213 Upland, LLC, 2020- 133 ( La. App. stn Cir. 10/ 5/ 20), 304 So. 3d 1083, 1093, writ
Additionally, in order to prevail in an action
denied, 2020- 1395 ( La. 1/ 26/ 21), 309 So. 3d 345.
for fraud due to silence or suppression of the truth, there must be a duty to speak or disclose
information. Id.

10 The Louisiana Unfair Trade Practices Act (" LUTPA") prohibits unfair methods of competition
and unfair or deceptive acts or practices in the conduct of any trade or commerce. See La. R.S.
51: 1405( A).In order to recover under LUTPA, a plaintiff must prove some element of fraud,
misrepresentation, deception, or other unethical conduct on the part of the defendant. Cheramie
Services, Inc. v. Shell Deepwater Production, Inc., 2009- 1633 ( La. 4/ 23/ 10), 35 So. 3d 1053,
1059. Furthermore, under LUTPA, the plaintiff must show that the alleged conduct offends
established public policy and is immoral, unethical, oppressive, unscrupulous, or substantially
injurious. Id.

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absence of factual support for the plaintiffs' claims that the STPG defendants

engaged in a conspiracy, fraud, or unfair trade practices. Indeed, not a single

plaintiff was able to provide any evidence of any act or omission by the STPG that

could be considered a conspiracy, fraud, or unfair trade practice. Furthermore, we

find that the plaintiffs, in opposition to the STPG defendants' motion for summary

judgment, failed to present any documents evidencing a genuine issue of material

fact as to this issue. Rather, the plaintiffs simply focused on their contention that

compliance with the flood and subdivision ordinances was mandatory, and thus,

discretionary immunity was inapplicable. However, as we have determined

otherwise and since none of the evidence submitted by the plaintiffs demonstrates

that any factual issue remains as to whether the STPG defendants engaged in any

acts that constituted criminal, fraudulent, malicious, intentional, willful,

outrageous, reckless, or flagrant misconduct, we find that the STPG defendants

established their entitlement to summary judgment on the issue of discretionary

immunity.

Accordingly, we find that the trial court properly granted the STPG

defendants' motion for summary judgment and dismissed the plaintiffs' claims

against them relative to the approval of the Subdivision and issuance of permits, as

well as the claims of conspiracy, fraud, and unfair trade practices. Therefore, that

portion of the June 17, 2020 judgment of the trial court granting the STPG

defendants' motion for summary judgment and dismissing the plaintiffs' claims

against Mr. Thompson and Mr. Thibodeaux is affirmed.

RESPONSIBILITY FOR MAINTENANCE
OF DRAINAGE PONDS
Plaintiffs' Motion for Partial Summary Judgment and
STPG' s Cross -Motion for Partial Summary Judgment)

As previously set forth, the plaintiffs filed a motion for partial summary

judgment, seeking a "[ f]inding that the ... Subdivision drainage ponds[/ lakes] as

well as the entire ... Subdivision drainage system, including each and every one of

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its component parts, are subject to A PUBLIC USE SERVITUDE OF

DRAINAGE IN PERPETUITY IN FAVOR OF THE PARISH OF ST.

TAMMANY which must be charged with its upkeep, maintenance, and operation

at public expense as long as necessary to ensure the health, safety, and welfare of

the residents of [ the] ... Subdivision and the other citizens of this Parish." In

response, the STPG defendants filed a cross- motion for partial summary judgment,

seeking judgment in its favor holding " that the Penn Mill Lakes Homeowners'

Association as owner, [ was] solely responsible for the operation, and

maintenance of the [ ponds/ lakes] in the ... Subdivision ...." The trial court denied

the plaintiffs' motion, granted the STPG' s cross- motion, and declared that the

HOA owned the greenspace in the Subdivision, including the ponds/ lakes, that the

ponds/ lakes had not been accepted into the parish maintenance system, and

therefore, the HOA was responsible for the operation and maintenance of the

ponds/ lakes in the Subdivision.

Of particular importance to these two motions are the following provisions

from Subdivision Ordinance 499, which was in full force and effect at the time the

Subdivision was planned, developed, and approved by the STPG:

SECTION 40- 030. 0 GENERAL REGULATIONS

Sec. 40- 030.01 General Provisions

1. A subdivision or resubdivision of land must be compatible with
the major street plan adopted by the Planning Commission.
Necessary rights-of-way for any proposed roads or streets
shown on the major street plan or rights ofway for construction
and maintenance of necessary proposed or existing drainage
channels, through the proposed subdivision, must be

formally dedicated in perpetuity to the public through the St.
Tammany Parish Police Jury. No building of any sort may be
erected upon rights- of-way so dedicated.

3. No individual, firm, or corporation shall deepen, widen, fill or
reroute, or change the location of any existing ditch, stream, or
drainage canal or reclaim, fill, dredge or otherwise change the
natural condition of land without first obtaining a permit and

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work order from the Police Jury and any other agency having
jurisdiction.

Sec. 40- 037. 02 Residential Retention/ Detention Ponds; Acceptance
into Parish Maintenance System

The following procedures are hereby established for acceptance of
retention/ detention ponds,
existing as of the date of this ordinance,
into the parish maintenance system:

1. Petition from owner requesting that the pond be taken into the
parish maintenance system. This should include copy of title
and survey.

2. Petition will be reviewed by the Department of Engineering and
Department of Public Works to determine what is needed prior
to acceptance of the pond....

3. Petitioner will be advised of what is needed for acceptance and
will be advised that acceptance by the parish is for maintenance
purposes and not for aesthetic purposes.

4. If the petitioner agrees with the criteria for acceptance, they will
be responsible for providing the following documentation to the
parish:

a. an " Act of Correction" to the subdivision plat; and

b. an " Act of Dedication" with a legal description of the
property to be dedicated to the parish.

The hereby established for
following requirements are

retention/ detention ponds, constructed after the adoption of this
ordinance. Compliance with all standards as set forth below must be
verified by the Department of Engineering prior to acceptance into the
parish maintenance system:

5. The detention pond may be designated as a wet or dry pond ....

6. The developer must furnish a copy of the title to the land.

7. An " Act of Dedication" with a legal description of the property
to be dedicated to the parish must be furnished.

8. The petitioner will be advised of what is needed for acceptance
and will be advised that acceptance by the parish is for
maintenance purposes only and not for aesthetic purposes.

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9. The Parish Engineer can waive any of these requirements or
approve alternative methods whenever justification is presented
by a Louisiana Licensed Civil Engineer.
Emphasis added.)

Both the plaintiffs and the STPG defendants offered extensive

documentation with respect to these competing motions for partial summary

judgment. Pertinent to our decision herein, the following was established by the

documents offered by the parties. The Subdivision was developed in several

phases. The Subdivision has several retention ponds/ lakes, all of which were man-

made by the developer, pursuant to an engineered plan designed by Cooper

Engineering and/or Leroy Cooper, P.E. and that plan was approved by the STPG.

Most of the retention ponds/ lakes were created from the Horse Branch Tributary,

which was also known as Parish Lateral 23- DW4- 12. Parish Lateral 23- DW4- 12

was an existing natural drainage channel running through the property, it

connected to other publicly owned drainage ways and/ or drainage servitudes, and it

had previously had maintenance work performed on it by the STPG. Parish

Lateral 23- DW4- 12 was thus incorporated into the drainage and retention system

of the Subdivision. Presently, the Subdivision' s ponds retain drainage water from

rainfall within the Subdivision and surrounding area and the ponds/ lakes connect to

or accept water from other publicly -owned drainage ways and/or drainage

servitudes. The ponds/ lakes were designed and intended to be an integral part of

the Subdivision' s drainage system. The developer intended to dedicate the

retention ponds/ lakes to the public ( or to the STPG) and the ponds/ lakes were

designed and constructed according to STPG specifications, more specifically,

Subdivision Ordinance 499.

The first preliminary plan for the Subdivision, dated February 12, 2003,

provided a restrictive covenant that the HOA would be responsible for maintaining

the greenspace in the Subdivision. Due to a concern about responsibility for the

ponds/ lakes, the STPG Department of Engineering, through Mr. Thibodeaux, sent

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Mr. Cooper ( the Subdivision' s design engineer) a letter dated February 20, 2003

explaining to him among other things, that "[ i] f the Parish [ was] to maintain the

detention ponds[/ lakes], details of the pond[/ lake] must be provided and conform

to [ Subdivision] Ordinance # 499[,]" and that "[ t]he following statement [ will] be

required: ` The Parish is responsible for operation and maintenance of the detention

ponds."' In addition, the letter provided that the "[ t] otal acres in easements to be

dedicated to the Parish [ was] required on [ the S] ubdivision plat." Mr. Cooper, on

behalf of the developer, responded to this letter by stating that no easements were

to be dedicated. Further, the language on the plans for the Subdivision was

changed to reflect that all drainage servitudes were to be maintained by the HOA.

The developer for the Subdivision stated that change on the plans was made at the

direction of the STPG/ Department of Engineering, which the STPG denies. On an

internal copy of the February 20, 2003 letter, an employee of the STPG

Department of Engineering, Earl Manger, P.E., made the notation that the

ponds/ lakes were " to be maintained by homeowner" and that the total acres of

easements to be dedicated to the Parish was " None." The STPG was never

provided with details of the ponds/ lakes conforming to Subdivision Ordinance 499

and the ponds in the Subdivision were not otherwise dedicated to the STPG in

accordance with the requirements set forth in Subdivision Ordinance 499. All of

the final recorded plans for the Subdivision— for both phases one and two

including phase two' s sub- phases)— provide that that all drainage servitudes are to

be maintained by the HOA.

With respect to phase two, the original preliminary subdivision plan for the

Subdivision included the same restriction— that all drainage servitudes would be

maintained by the HOA. The second version of the plans for phase two contained

a note that the ponds/ lakes would be maintained by the Parish. However, this

notation was removed for the third version of the plans, at the direction of Mr.

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Manger, purportedly in order for those plans to be consistent with the plans for

phase one. The preliminary plans for phase two were then broken up and the plans

for all sub -phases of phase two provided that the greenspace would be maintained

by the HOA.

On December 31, 2007, the developer transferred the ownership of the

Subdivision' s " undeveloped ` green space' and/ or ` common areas"' to the HOA,

and the survey of the greenspace for the Subdivision reflects that the ponds/ lakes

are part of the greenspace. According to the minutes of a HOA meeting on March

18, 2008, it was noted that "[ t]he ponds are part of the Parish Drainage System,

maintained and owned by the [ HOA], but granted to the Parish."

On February 10, 2009, an employee of the STPG Department of Engineering

sent an email to the then president of the HOA that the parish council had accepted

part of phase two of the Subdivision at its February 5, 2009 meeting and

t] herefore, the roads and drainage [ were] in the Parish Maintenance System."

However, according to letters in the public record from the STPG Department of

Engineering to the members of the St. Tammany Parish Council, this reference was

to roadway and roadside drainage maintenance only, and that maintenance of

roadside drainage did not include the maintenance of the detention ponds/ lakes.

The Subdivision' s developer has since attempted to formally dedicate the retention

ponds/ lakes to the STPG; however, the STPG has refused to accept them into the

STPG maintenance system.

Based on our de novo review of the record, we find no error in the trial

court' s decision to grant summary judgment declaring that the HOA is the owner

of the greenspace in the Subdivision, including the ponds/ lakes. The documents

offered by both parties establish, and it is undisputed, that the ownership of the
However,
greenspace, including the ponds/lakes, was transferred to the HOA.

regardless of ownership, we find that there are genuine issues of material fact

Fill

precluding summary judgment in favor of either the plaintiffs or the STPG as to

who has the responsibility for operating and/or maintaining the ponds/lakes,

whether the ponds/ lakes are an integral part of the Subdivision' s drainage system,

and whether there is a pre- existing drainage servitude in favor of the STPG with

respect to the ponds/ lakes. The documents establish that the Subdivision' s

ponds/ lakes were created from an existing parish drainage lateral that had been

maintained by the STPG, that the parish drainage lateral connected to the Parish -
wide drainage system, and that the ponds/ lakes in the Subdivision now connect to

the Parish -wide drainage system, and that the ponds/ lakes in the Subdivision drain

storm water from the Subdivision and other areas surrounding the Subdivision.

Thus, although the HOA may be the owner of the greenspace, including the

ponds/ lakes, there is an issue of fact as to whether, prior to the transfer of the

lakes/ponds to the HOA, there was a pre- existing drainage servitude in favor of the

STPG which could not be extinguished by changing the parish drainage lateral into

a drainage retention pond/ lake. Furthermore, although the developer of the

Subdivision intended to but did not accomplish a formal dedication of the drainage

retention ponds/ lakes to the STPG or otherwise comply with the requirements of

Subdivision Ordinance 499 in order to formally dedicate the ponds/ lakes to the

STPD, there is an issue of fact as to whether the developer' s failure to do so was

the decision of the developer or done at the direction of the STPG, and whether a

dedication by other means, i.e. implied, statutory, or tacit, was accomplished.

Lastly, we note that there is documentation that the STPG represented to the HOA

that the drainage system for the Subdivision, of which the ponds/ lakes are an

integral part, had been accepted into the STPG maintenance, and thus, an issue of

fact as to whether the STPG should be estopped from taking a position adverse to

its representation to the HOA.

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Accordingly, to the extent that the trial court granted summary judgment

declaring the HOA to be the owner of greenspace in the Subdivision, including the
ponds/ lakes, we find no error and affirm that part of the judgment. However,

because we find genuine issues of material fact exist as who is responsible for

maintaining the ponds/ lakes or drainage system/servitude in the Subdivision, we

affirm the judgment insofar as it denied the plaintiffs' motion for partial summary

judgment and reverse the judgment insofar as it granted the cross- motion for

summary judgment filed by the STPG declaring that the HOA was responsible for

maintaining the ponds/lakes and dismissed the plaintiffs' claims against the STPG

related to the maintenance of the ponds/ lakes and/ or drainage system/ servitude.

CONCLUSION

For all of the above and foregoing reasons, the June 17, 2020 judgment of

the trial court is affirmed insofar as it denied the plaintiffs' motion for partial

summary judgment against the St. Tammany Parish Government, granted the St.

Tammany Parish' s Government' s cross- motion for partial summary judgment

declaring that the Penn Mill Lakes Homeowners' Association owns the greenspace

in the Subdivision, including the ponds/ lakes, granted the motion for summary

judgment filed by the St. Tammany Parish Government, James A. " Red"

Thompson, and Jean Thibodeaux, P. E. regarding discretionary immunity, and

dismissed the plaintiffs' claims against Mr. Thompson and Mr. Thibodeaux. In all

other respects, i.e., that portion of the judgment granting the St. Tammany Parish

Government' s cross-motion for partial summary judgment declaring that the

ponds/ lakes have not been accepted into maintenance by the St. Tammany Parish

Government and that the Penn Mill Lakes Homeowners' Association is responsible

for the operation and maintenance of the ponds/ lakes in the Penn Mill Lakes

Subdivision, and dismissing the plaintiffs claims against the St. Tammany Parish

Government, the judgment is reversed. In addition, the motion to strike the

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plaintiff's reply brief is granted in part and denied in part, and the plaintiff' s

request for sanctions is denied. This matter is remanded for further proceedings.

Total costs of this appeal in the amount of $2, 508.22 are assessed one- half to

the plaintiffs and one-half to the St. Tammany Parish Government.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MOTION TO STRIKE GRANTED IN PART AND DENIED IN PART;
REQUEST FOR SANCTIONS AND COSTS DENIED.

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