John Johnson, Individually and as a Representative of the Class of Those Similarly Situated v. Orleans Parish School Board, Xyz Insurance Company, City of New Orleans, and Abc Insurance Company

JOHN JOHNSON, * NO. 2022-CA-0731
INDIVIDUALLY AND AS A
REPRESENTATIVE OF THE *
CLASS OF THOSE COURT OF APPEAL
SIMILARLY SITUATED *
FOURTH CIRCUIT
VERSUS *
STATE OF LOUISIANA
ORLEANS PARISH SCHOOL *******
BOARD, XYZ INSURANCE
COMPANY, CITY OF NEW
ORLEANS, AND ABC
INSURANCE COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 1993-14333, DIVISION “J”
Honorable D. Nicole Sheppard,
******
Judge Nakisha Ervin-Knott
******
(Court composed of Chief Judge Terri F. Love, Judge Karen K. Herman, Judge
Nakisha Ervin-Knott)

Linda Suzanna Harang
LAW OFFICES OF WARREN A. FORSTALL, JR., PLC
320 N. Carrolton Ave, Suite 200
New Orleans, LA 70119-5111

Joseph M. Bruno
BRUNO & BRUNO LLP
855 Baronne Street
New Orleans, LA 70113

George J. G. Roux
ATTORNEY AT LAW
823 Saint Louis Street
New Orleans, LA 70112

Suzette P. Bagneris
THE BAGNERIS FIRM, LLC
1929 Jackson Avenue
New Orleans, LA 70113

4898317

Robin M. Primeau
MURRAY LAW FIRM
701 Poydras Street, Suite 4250
New Orleans, LA 70139

COUNSEL FOR PLAINTIFFS/APPELLEES

Lisa W. Jordan
Lauren E. Godshall
TULANE UNIVERSITY LAW SCHOOL
6329 Freret Street
New Orleans, LA 70118

COUNSEL FOR INTERVENORS/APPELLANTS

AFFIRMED
March 15, 2023

4898317

NEK
Appellants, Residents of Gordon Plaza, Inc. (hereafter “Corporation”),
TFL
KKH Shannon Rainey, Marilyn Amar, Lydwina Hurst, Jesse Perkins, and Samuel Egana

(hereafter “Individuals”) (hereafter collectively “Residents”), appeal the trial

court’s June 22, 2022 judgment, which granted the exceptions of no right of action,

no cause of action, and res judicata filed by Appellees, John Johnson, Individually

and as a Representative of the Class of Those Similarly Situated (hereafter “the

John Johnson Class”). The John Johnson Class has filed an exception of

prescription with this Court. For the following reasons, we deny the John Johnson

Class’ exception of prescription and affirm the trial court’s judgment granting of

the John Johnson Class’ exception of no right of action.

Factual Background and Procedural History

This case has been before this Court previously. The underlying facts were

previously articulated by this Court:

From the early 1900's until approximately 1958, the City of
New Orleans (City) leased more than one hundred acres of land in the
City's ninth ward for the operation of a municipal landfill and garbage
dump. The site, known as the Agriculture Street Landfill (ASL), was
bordered by Almonaster Boulevard on the west, Higgins Boulevard on
the north, Louisa Street on the east, and the Peoples Avenue Canal
and railroad tracks on the south. In 1965, the City reopened the ASL

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site for the disposal of massive quantities of debris created by
Hurricane Betsy.

In 1967, the City and the Housing Authority of New Orleans (HANO)
entered into a cooperative agreement for the development of
residential properties in the Desire area of the City. Between 1969 and
1971, Drexel Development Corporation constructed the Press Park
town homes and apartments for HANO. No remediation or special site
preparation was done before Press Park was constructed. In 1971,
HANO purchased the completed Press Park project from Drexel and
has owned and operated the site since that time. Some Press Park
tenants participated in a “turn key” program, whereby a portion of
their monthly rent was placed in an escrow account and applied
toward the purchase of their town home unit. When their escrow
account reached the amount needed for purchase of the unit,
HANO transferred title of the unit to the tenant. HANO never advised
any of the prospective Press Park tenants or home buyers that the site
had once been a part of the City's landfill.

In the late 1970s, the City performed soil testing in the Gordon Plaza
area of the ASL neighborhood, in anticipation of the construction of
the Gordon Plaza single-family homes. As a result of the soil testing,
the City required the developers of Gordon Plaza to add topsoil before
constructing the homes. In 1980, sixty-seven family homes
comprising Gordon Plaza were built. The Gordon Plaza home buyers
were not told that their homes were located on what had once been a
part of the City's landfill.

In 1975, the Orleans Parish School Board (School Board) purchased a
tract of land along Abundance Street in the ASL neighborhood, with
the intent to build an elementary school. In 1984, the School Board
began plans for construction of Moton Elementary School on the
site. Because the School Board knew when it purchased the property
that the site had once been a part of the City’s landfill, the School
Board hired engineering firms to conduct an environmental evaluation
of the property. Environmental testing on the site identified the
presence of numerous toxic and hazardous materials, including lead,
arsenic, mercury, and polycyclic aromatic hydrocarbons. Because of
the presence of the toxic and hazardous materials, the School Board
hired several environmental consultants to advise them on how the
site could be remediated to eliminate the danger of harmful exposures
created by the presence of hazardous materials. The environmental
consultants recommended that the entire site be excavated to a depth
of three feet, with the top three feet of contaminated soil removed and
replaced with two feet of clean topsoil. Between the clean topsoil and
the hazardous materials, the consultants recommended that a layer of
six inches to one foot of impermeable clay be placed over the entire
site. In 1986-87, Moton Elementary School opened for kindergarten
through sixth grade with an enrollment of approximately nine hundred
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students. The School Board did not tell its employees or the parents of
the students that the school had been built on a part of the City's
former landfill or that environmental testing had identified the
presence of toxic materials on the site. During the 1991–92 school-
year, there were plumbing problems at Moton Elementary which
required under-slab construction and repairs. This necessitated the
construction of a trench and the breach of the three-foot layer of clean
topsoil.

The Environmental Protection Agency (EPA) tested the soil in parts
of the ASL neighborhood in 1986 to determine whether the ASL site
was contaminated. The residents were not given the results of the
EPA's 1986 soil tests nor were they told that their property was
contaminated or given any special instructions to follow or
precautions to take to protect themselves from exposures to the soil.
Between 1985 and 1986, the Louisiana Department of Health and the
Agency for Toxic Substance Disease Registry (ATSDR) conducted a
public health screening of children in the ASL neighborhood to
determine whether there was an increased incidence of elevated blood
lead levels. The residents were never told that their children had been
exposed to excess levels of lead, nor were they given any special
instructions or precautions to follow to protect their children from
exposures to the soil.

In 1993, the EPA came back to the ASL site and conducted more soil
tests throughout the neighborhood. The tests indicated that the soil
was contaminated with more than one hundred forty toxic and
hazardous materials, more than forty of which are known to
cause cancer in humans. The EPA told the ASL residents to take
special precautions to protect themselves from any exposure to the
soil. In 1994, the EPA placed a portion of the ASL neighborhood on
the National Priorities List and later that same year it declared that the
ASL site was sufficiently contaminated to be named a Superfund site.
Later that same year, the School Board closed the Moton
Elementary School campus and the ASL residents formed the
Concerned Citizens of the Agriculture Street Landfill, Inc. to qualify
for federal grant funding to pay for the services of an environmental
technical advisor.

In the mid–1990s, the EPA proposed a remediation plan for the ASL
site that would remove and replace the top two feet of soil, where
possible, with a semi-permeable barrier between the clean topsoil and
the contaminated soil. The soil under buildings and the streets would
not be disturbed. The ASL residents opposed the EPA's plan as being
inadequate to remediate the site. The ASL residents supported an
alternative voluntary relocation/buy-out plan. The EPA rejected the
requests of the ASL residents and from 2000–2001, the EPA financed
a $20,000,000.00 remediation project. In the remediation process,
approximately two feet of soil was removed from around houses and
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buildings where possible. Due to underground utilities, water lines,
etc., only one foot of soil was removed in some areas. After the EPA
completed the remediation work, the ASL residents were given a
certificate of completion confirming that their property had been
partially remediated. The EPA also gave the ASL residents a list of
permanent restrictions on the use of their property and advised the
ASL residents that they were responsible for maintaining the integrity
of the clean layer of topsoil and the felt-like material that comprises
the semi-permeable barrier between the clean layer of topsoil and the
ground below.

Not satisfied with the steps taken to correct the problems with the
ASL neighborhood, a number of the residents proceeded with a class
action lawsuit. The named defendants in the action include the City,
HANO, the School Board, and HANO's insurers, National Union Fire
Insurance Company of Pittsburgh, Pennsylvania, U.S. Fire Insurance
Company, Republic Insurance Company, and South American
Insurance Company/Louisiana Insurance Guaranty Association. The
plaintiff class has previously been defined as follows: 1) current and
former residents who have lived on the site of the former landfill, as
defined as the area bounded on the north by Higgins Blvd., on the east
by Louisa Street, on the south by Florida Avenue and on the west by
Almonaster Avenue and the Peoples Avenue Canal, for at least twelve
months prior to February 1, 1994; 2) current and former business
owners and their employees who have operated a business on the
former landfill site, as described above, for at least twelve months
prior to February 1, 1994; 3) current residents who are the owners of
record of their homes, or who are buying their homes but have not yet
completed their payments; and 4) former students and employees of
Moton Elementary School who attended or worked at the school on
the site of the former landfill for at least twelve months or
one school year prior to February 1, 1994.

Johnson v. Orleans Par. Sch. Bd., 2006-1223, pp. 1-6 (La.App. 4 Cir. 1/30/08),

975 So.2d 698, 703–05 (“Johnson VI”).

On December 18, 2000, the trial court signed a protective order directing all

named defendants to refrain from communicating with class members regarding

the litigation without the knowledge and participation of class counsel. Class

counsel learned that defendant, the City of New Orleans, was in violation of the

protective order due to discussions the City had with a few class members about

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potential resolution of their buyout/relocation requests. Therefore, on December

27, 2021, class counsel on behalf of the John Johnson Class filed an emergency

motion for contempt seeking to enforce the protective order.

On January 3, 2022, the Residents filed an ex parte motion for leave to

intervene and limited petition of intervention. In their limited petition of

intervention, the Residents asserted that the purpose of the intervention was to

“defend against plaintiffs’ counsels’ contempt motion and any other efforts to

interfere with their ability to advocate for themselves before their government free

from interference….” On January 24, 2022, the trial court granted the ex parte

motion for leave to intervene. On February 4, 2022, the John Johnson Class

withdrew its motion for contempt, and subsequently, on March 7, 2022, the Class

filed exceptions of no right of action, no cause of action, and res judicata in

response to the intervention petition.

The hearing on the Class’ exceptions was held on May 24, 2022, and the

trial court granted all three exceptions. The judgment granting the Class’

exceptions was signed on June 22, 2022. The Residents timely filed this devolutive

appeal.

Preliminary Matter – Exception of Prescription

The John Johnson Class filed an exception of prescription with this Court.

Because any finding of merit regarding this exception would result in the dismissal

of the limited intervention, we address it first.

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A party may raise an exception of prescription on appeal if the case has not

yet been submitted for decision, and if there is proof in the record to determine its

merits; if not, the court may remand the issue for determination. See La. C.C.P. art.

2163; Walker v. AMID/Metro P'ship, LLC, 2012-0285, p. 5 (La. App. 4 Cir

1/16/13), 109 So.3d 35, 39 (citing La. C.C.P. art. 2163; Cameron v. Delta

Plumbing, 2007-0672, p. 5 (La. App. 4 Cir. 2/13/08), 976 So.2d 343, 346). An

exception of prescription is designed to stop the prosecution of stale

claims. See Prevo v. State ex rel. Dep't of Pub. Safety & Corr. Div. of Prob. &

Parole, 2015-0823, p. 4 (La. 11/20/15), 187 So.3d 395, 398 (citing Wells v.

Zadeck, 2011-1232, p. 7 (La. 3/30/12), 89 So.3d 1145, 1149). The party raising the

exception bears the burden of proof, unless it is evident on the face of the

proceedings that the claim has prescribed, at which point the burden shifts to the

plaintiff to show that the matter has not prescribed. Id. (citing Campo v. Correa,

2001-2707, p. 7 (La. 6/21/02), 828 So.2d 502, 508; Williams v. Sewerage & Water

Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993)).

Regarding the exception of prescription, both the Residents and John

Johnson Class state that there is no need to remand this issue to the trial court. We

agree. The record before this Court contains the information necessary to decide

the merits of this exception.

In urging the exception of prescription, the John Johnson Class contends that

the Residents’ limited petition for intervention is prescribed on its face and should

be dismissed by this Court with prejudice. The Class asserts that the five

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Individuals have been members by definition of the John Johnson Class since the

inception of this case,1 and the Corporation has been in existence since 2016.

Therefore, their intervention should have been filed no later than 2016, when the

Corporation was formed due to these five Individuals’ assertion that they were

being ignored by class counsel. In the alternative, giving the Residents the benefit

of the doubt, the Class asserts that the intervention should have been filed in 2018,

when the five Individuals maintain they began to protest, march, and file civil suits

against the City of New Orleans in federal court.

The Residents oppose the exception of prescription by asserting that the

John Johnson Class misstates the provisions of La. C.C.P. art. 1041, which does

not impose a ninety-day time limit on interventions, as interventions that do not

retard the progress of the principal action are timely. Further, the Residents

maintain that their intervention claims are their justiciable rights to engage in

unfettered free speech and to receive redress from their government, and the Class’

motion for contempt sought to infringe upon these rights.

Demands that are incidental to the principal demand “may be instituted

against an adverse party, a co-party, or against a third person.” La. C.C.P. art.

1031. Intervention is one type of incidental demand. Id. La. C.C.P. art. 1033 sets

the delay for filing incidental actions, such as interventions, and provides that after

the answer to the principal demand has been filed, an incidental demand may be

filed with leave of court “if it will not retard the progress of the principal action.”

1 The original petition for damages was filed on August 31, 1993.

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La. C.C.P. art. 1041, entitled “When prescribed incidental or third party

demand is not barred”, states:

An incidental demand is not barred by prescription or peremption if it
was not barred at the time the main demand was filed and is filed
within ninety days of date of service of main demand or in the case of
a third party defendant within ninety days from service of process of
the third party demand.

“La. C.C.P. art. 10672 [now known as La. C.C.P. art. 1041] has been characterized

by this Court as an exemption statute, which exempts any incidental demand from

any applicable prescriptive statute whose prescriptive period would accrue during

the ninety-day period from the date of service of the main demand or third-party

demand.” Traylor v. Reliance Ins. Co., 1998-1379, pp.2-3 (La. App. 4 Cir. 7/1/98),

715 So.2d 1253, 1255 (citing Kelly v. Louisiana Stadium and Exposition

District, 380 So.2d 669 (La.App. 4 Cir.1980)). As the statute and jurisprudence

demonstrates, La. C.C.P. art. 1041 is not a prescription statute; rather, it is an

exemption statute allowing otherwise prescribed incidental demands to avoid

prescription. As such, the John Johnson Class’ reliance on La. C.C.P. art. 1041 to

assert prescription is misplaced.

“Prescription cannot run against a cause of action that has not accrued or

while that cause of action cannot be exercised.” Reggio v. E.T.I., 2007-1433,

pp.10-11 (La. 12/12/08), 15 So.3d 951, 957 (quoting Bailey v. Khoury, 2004–0620,

p.9 (La.1/20/05), 891 So.2d 1268, 1275). “Thus, if the action had not or could not

have prescribed because the cause of action had not yet accrued, the time

2 La. C.C.P. art. 1041 was redesignated from La. C.C.P. art. 1067 by Acts 2017, No. 419, §5. See

Credits, La. C.C.P. art. 1041.
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limitations of article 1067 would not apply.” Reggio, 2007-1433, p.10, 15 So.3d at

957. The John Johnson Class filed the motion for contempt on December 27, 2021,

and on January 3, 2022, the Residents filed their motion for leave and limited

petition for intervention. Throughout their limited petition for intervention, the

Residents state that the purpose of the intervention is to oppose the contempt

motion. As pled in the petition, the filing of the motion for contempt necessitated

the Residents’ need to intervene. Consequently, the Residents could not have

asserted the claims pled in their petition prior to the filing of the contempt motion.

Therefore, we find that the Residents’ limited petition for intervention is not

prescribed.
Exception of No Right of Action

In Roy Anderson Corp., this Court set forth the applicable standard of review

for an exception of no right of action as follows:

“The function of the exception of no right of action is to determine
whether the plaintiff belongs to the class of persons to whom the law
grants the cause of action asserted in the suit.” Two Canal Street
Investors, Inc. v. New Orleans Building Corp., 2016-1306, p. 8 (La.
App. 4 Cir. 2/15/17), 212 So.3d 611, 617 (citation omitted). As set
forth in Louisiana Citizens Prop. Ins. Corp. v. LAA Shoring, LLC,
2016-1136, p. 5 (La. App. 4 Cir. 6/14/17), 223 So.3d 17, 23:

“The determination of whether a plaintiff has a right of action is a
question of law.” Mendonca v. Tidewater Inc., [20]03-1015, p. 3 (La.
App. 4 Cir. 12/17/03), 862 So.2d 505, 508. “The standard of review of
a trial court's ruling on an exception of no right of action is de
novo.” N. Clark, L.L.C. v. Chisesi, [20]16-0599, p. 3 (La. App. 4 Cir.
12/7/16), 206 So.3d 1013, 1015. “Therefore, this court is required to
determine whether the trial court applied the law
appropriately.” Mendonca, [20]03-1015, p. 3, 862 So.2d at 508.

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Roy Anderson Corp. v. 225 Baronne Complex, L.L.C., 2017-1005, pp. 4-5 (La.

App. 4 Cir. 7/11/18), 251 So.3d 493, 498.

In most cases, “an action can be brought only by a person having a real and

actual interest which he asserts.” La. C.C.P. art. 681. “The function of the

peremptory exception is to have the plaintiff's action declared legally nonexistent,

or barred by effect of law, and hence this exception tends to dismiss or defeat the

action.” La. C.C.P. art. 923. A no right of action or no interest in the plaintiff to

institute a suit is an objection that may be raised through a peremptory exception.

La. C.C.P. art. 927A(6).

“When the facts alleged in the petition provide a remedy under the law to

someone, but the plaintiff who seeks the relief for himself or herself is not the

person in whose favor the law extends the remedy, the proper objection is no right

of action, or want of interest in the plaintiff to institute the suit.” Gunasekara v.

City of New Orleans, 2018-0639, p. 6 (La. App. 4 Cir. 1/30/19), 264 So.3d 1236,

1240 (citing N. Clark, L.L.C., 2016-0599, pp. 5-6, 206 So.3d at 1016-17). “The

burden of proof of establishing the exception of no right of action is on the

defendant-exceptor.” Id., 2018-0639, p.7, 264 So.3d at 1241. “The exception of no

right of action does not raise the question of the plaintiff's ability to prevail on the

merits or the question of whether the defendant may have a valid defense.” Id.

“On consideration of an exception of no right of action the averments of fact

in the pleading must be taken as true in the absence of evidence to the

contrary.” Id. However, when the grounds do not appear from the petition,

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evidence may be introduced to support or controvert the objections pleaded. La.

C.C.P. art. 931. “In examining an exception of no right of action, a court should

focus on whether the particular plaintiff has a right to bring the suit while assuming

that the petition states a valid cause of action for some person.” Gunasekara, 2018-

0639, p. 7, 264 So.3d at 1241.

Discussion

On appeal, the Residents assert that the trial court erred in sustaining the

John Johnson Class’ exceptions of no right of action, no cause of action, and res

judicata. The Residents assert two main points: (1) they meet all the legal

requirements for intervention; and (2) the John Johnson Class’ exceptions have no

merit.
Louisiana Code of Civil Procedure Article 1091 provides:

A third person having an interest therein may intervene in a pending
action to enforce a right related to or connected with the object of the
pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar
relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.

Louisiana courts have interpreted La. C.C.P. art. 1091 to allow intervention where

a justiciable right exists and that right has a connexity with the facts,

circumstances, and objects of the main demand. Harrison v. Gaylord's Nat'l Corp.,

539 So.2d 909, 910 (La. App. 4th Cir. 1989). A “justiciable right” for purposes of

La. C.C.P. art. 1091 “means the right of a party to seek redress or a remedy against

either plaintiff or defendant in the original action or both, and where those parties

have a real interest in opposing it.” Amoco Prod. Co. v. Columbia Gas

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Transmission Corp., 455 So.2d 1260, 1264 (La. App. 4th Cir. 1984). Connexity

exists if the intervenor's claim is “so related or connected to the facts or object of

the principal action that a judgment on the principal action will have a direct

impact on the intervenor's rights. Id.

In this case, the Residents are seeking to intervene in order to “resist the

demands of the Contempt Motion, which seek to illegally and improperly prevent

the City Council from engaging in budget planning that could significantly benefit

intervenors.” Since 2016, the Residents have advocated for the government –

mainly the City of New Orleans – to relocate residents off the toxic landfill, and

their advocacy has included community meetings, protests, and other acts of

activism. Undoubtedly, the Residents have a right to protect their First Amendment

rights and advocate for a government-funded relocation. However, the question is

whether this right has connexity to the claims asserted in this class action litigation.

Diminution of property value and emotional distress are the only two types

of claims that form a basis for recovery in this case. Relocation is not a recoverable

claim in this litigation. Rather, relocation is an extra-judicial remedy that must be

pursued outside of this litigation. The Residents state in their intervention petition

that the City’s proposed budget designation for relocation “does not impact or

relate to this litigation”, and “[s]uch a budget item does not constitute an

appropriation of funds to pay the judgments in this litigation.” Further, the petition

states that “[t]he proposed City budget item funds to relocate residents and

redevelop the Gordon Plaza site are not in the nature of damages.” Based on the

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intervention petition, it is evident that judgment on the main action (i.e. diminution

of property value and emotional distress) will have no impact on the Residents’

pursuit of a government-funded relocation. As the Residents’ intervention claims

are not so related to the main action that “a judgment on the main action will have

a direct impact on the intervenor's rights”, the requisite element of connexity does

not exist. Therefore, the Residents do not have a right to intervene in this litigation,

and the trial court did not err in granting the John Johnson Class’ exception of no

right of action.

On appeal, the Residents also assert that the trial court erred in granting the

Class’ exceptions of no cause of action and res judicata. While we note these

exceptions, we do not need to decide whether the trial court’s judgment was

correct as we have already affirmed the trial court’s determination that the

Residents do not have a right of intervention in this litigation.

Decree

For the forgoing reasons, the exception of prescription is denied, and the

trial court’s June 22, 2022 judgment granting the exception of no right of action in

favor of the John Johnson Class is affirmed.

AFFIRMED

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