Oscar v. Poydras D/B/A Broadway Bar v. the City of New Orleans and Wallace C. Drennan Inc.

OSCAR V. POYDRAS D/B/A * NO. 2025-CA-0206
BROADWAY BAR
*
VERSUS COURT OF APPEAL
*
THE CITY OF NEW ORLEANS FOURTH CIRCUIT
AND WALLACE C. DRENNAN *
INC. STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2024-04721, DIVISION “E”
Honorable Omar Mason, Judge
******
Judge Paula A. Brown
******
(Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge
Rachael D. Johnson)

Christian S. Smith
Mark William Smith
MARK W. SMITH & ASSOCIATES, PLC
500 N. Causeway Blvd.
Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLANT

Elizabeth A. Weigand
ASSISTANT CITY ATTORNEY
Donesia D. Turner
CITY ATTORNEY
Corwin St. Raymond
CHIEF DEPUTY CITY ATTORNEY
1300 Perdido Street
City Hall - Room 5E03
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED IN PART;
VACATED IN PART;
REMANDED
SEPTEMBER 25, 2025

PAB
TGC
RDJ

This case involves a peremptory exception of prescription. Appellant, Oscar

Poydras d/b/a Broadway Bar (“Mr. Poydras”), appeals the November 19, 2024

judgment of the district court, which sustained the peremptory exception of

prescription (the “exception”) filed by Appellee, the City of New Orleans (the

“City”), and dismissed all of Mr. Poydras’ claims against the City with prejudice.

Based upon our de novo review and for the reasons that follow, we affirm that

portion of the judgment that granted the exception of prescription as to Mr.

Poydras’ inverse condemnation and trespass claims, vacate that portion of the

judgment that dismissed Mr. Poydras’ property damage claims, and remand the

matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Mr. Poydras is the owner and operator of Broadway Bar (the “bar”) located

at 3005 Broadway Street, New Orleans, Louisiana. On May 22, 2024, Mr. Poydras

filed a Petition for Damages Caused by Negligence, Trespass and Uncompensated

Taking of Private Property for a Public Purpose (the “petition”), naming the City

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as a defendant.1 In the petition, Mr. Poydras alleged that from October 1, 2020,

until approximately September 30, 2023, the City was engaged in a construction

project called the Marlyville-Fountainbleau Group C Construction (the “Project”),

which took place on Fig Street and Broadway Street in front of and adjacent to the

bar. The Project included repairing sewerage, water and drainage lines, as well as

rebuilding streets, sidewalks and curbs throughout the City. Mr. Poydras claimed

that the work on the Project rendered the streets and sidewalks in front of the bar

impassable and physically prevented bar patrons from accessing the bar. As a

result, from November 24, 2020,2 until approximately September 30, 2023, he was

unable to open, operate or engage in any of the bar’s business. According to Mr.

Poydras, this forced closure of the bar constituted a taking of his property for a

public purpose without just compensation. In addition, Mr. Poydras averred that

from the date the construction commenced until June 1, 2023, the City, through its

general contractor Mr. Drennan, commandeered his parking lot when it parked

vehicles and heavy equipment on the lot and stored its construction supplies and

debris there without his permission and without providing just compensation. Mr.

Poydras asserted that this action by the City constituted a trespass. Lastly, Mr.

Poydras asserted that the construction work and the trespass caused physical

damage to the bar and parking lot. He is seeking damages for just compensation for

the taking of his properties and the physical damage to his building and parking lot.

1 Wallace C. Drennan (“Mr. Drennan”) was also named as a defendant in the petition. However, this appeal solely

pertains to the judgment on the exception filed by the City.
2 The bar was forced to cease operations due to the COVID-19 Pandemic beginning March 2020

and ending November 24, 2020. However, Mr. Poydras alleges that the bar was unable to resume
operations in November because of the ongoing Project.

2

The City filed the exception and argued that based upon the factual

allegations raised in the petition, Mr. Poydras asserted a cause of action for an

inverse condemnation. Thus, pursuant to La. R.S. 13:5111,3 the prescriptive period

for Mr. Poydras’ claims for uncompensated takings or inverse condemnation had

prescribed as a matter of law. Moreover, the City contended that Mr. Poydras

cannot rely on the continuing tort doctrine for his allegations of a continued

trespass to extend the prescriptive period because the City, a municipality, is

governed by La. R.S. 13:1511, not the doctrine of torts. In opposition, Mr. Poydras

posited that the actions by the City constituted a continuous taking and continuous

trespass such that the prescriptive period does not end until the taking ceases. A

hearing on the exception was held on November 8, 2024. On November 19, 2024,

the district court rendered judgment in favor of the City, sustaining the exception

and dismissing all claims asserted by Mr. Poydras against the City with prejudice.

This timely appeal followed.

STANDARD OF REVIEW/ BURDEN OF PROOF

This Court has previously noted that “[t]he applicable standard of review of

a judgment on a peremptory exception of prescription turns on whether evidence

was introduced on the exception . . . .”4 Green v. Phipps-Green, 25-0006, p. 3 (La.

App. 4 Cir. 6/19/25), ___ So. 3d ___, ___, 2025 WL 1711294, at *2 (citing Mopsik

v. Galjour, 24-0189, p. 9 (La. App. 4 Cir. 9/25/24), 399 So.3d 811, 819). “In those

3 Louisiana Revised Statutes 13:5111 will be more fully discussed, infra.

4 Prescription—in this case liberative prescription—is defined as “a mode of barring of actions as

a result of inaction for a period of time.” La. C.C. art. 3447.

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matters where evidence is introduced, the [district] court’s findings are reviewed

under the manifest error standard of review.” Id. (citing Attamari v. Allstate Prop.

& Cas. Ins. Co., 24-0128, p. 7 (La. App. 4 Cir. 10/4/24), 400 So.3d 1156, 1162.

Nevertheless, “when, as here, ‘no evidence is introduced, then the de novo standard

of review applies and the exception is decided based on the petition’s allegations,

which are accepted as true.’” Id. In the instant matter no evidence was introduced;

hence, we apply a de novo standard of review.

“The prescriptive period applicable to an action is determined by the

character of the action disclosed in the pleadings.” Faubourg Saint Charles, LLC v.

Faubourg Saint Charles HOA, Inc., 18-0806, p. 4 (La. App. 4 Cir. 2/20/19), 265

So.3d 1153, 1157 (quoting Born v. City of Slidell, 15-0136, p. 8 (La. 10/14/15),

180 So.3d 1227, 1232). “The burden of proof is on the party pleading prescription;

however, if prescription is evident on the face of the pleadings, the burden of proof

shifts to the plaintiff to show the action has not prescribed.” Faubourg Saint

Charles, LLC, 18-0806, p. 4, 265 So.3d at 1157 (first citing Metairie III v. Poche’

Const., Inc., 10-0353, p. 4 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449; then citing

Ivy Rest. New Orleans, LLC v. Torre, 16-0777, p. 5 (La. App. 4 Cir. 2/1/17), 211

So.3d 676, 680).

With these precepts in mind, we turn to our de novo review.

DISCUSSION

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In his appeal to this Court, Mr. Poydras assigns three errors,5 and three

issues for our review, which we summarize as follows: (1) the district court erred

in granting the City’s peremptory exception of prescription when it applied La.

R.S. 13:5111; (2) the district court erred in failing to apply La. R.S. 9:5624 to

determine prescription for damages caused to Mr. Poydras’ property by the City;

and (3) the district court erred in finding that the continuing tort doctrine did not

apply to the facts of this case. We will address each argument in turn.

La. R.S. 13:5111- Prescriptive Period for Taking Without Just Compensation

Mr. Poydras asserts that he is entitled to just compensation because the City

engaged in an inverse condemnation of his property when: (1) the Project

prevented him from operating his bar for several years, which caused a forced

closure and lost profits; and (2) the City commandeered his parking lot to park its

construction vehicles.

The City does not dispute that Mr. Poydras’ property was taken or that he

lacks merit for an inverse condemnation action. Rather, the City argues that if, as

alleged here, there was a taking and the property was taken for a public purpose the

5 Specifically, Mr. Poydras’ assignments of error are as follows:

(1) The District Court erred in granting defendant’s Peremptory Exception of
Prescription.

(2) The District Court erred in dismissing all of plaintiff’s causes of action,
against the City of New Orleans especially those not subject to the 3-year
prescriptive period.

(3) The District Court erred in failing to apply La. R.S. 9:5624 to determine
prescription for damages caused to Appellant’s property by the City of New
Orleans.

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action should be governed by the three-year prescriptive period as set forth in La.

R.S. 13:5111. We agree.

Louisiana Constitution Article I, § 4 (B)(1) provides, in pertinent part, that

“[p]roperty 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 . . .” “[O]ur constitution requires compensation even though

the State has not initiated expropriation proceedings in accordance with the

statutory scheme set up for that purpose.” Avenal v. State, 03-3521, p. 26 (La.

10/19/04), 886 So.2d 1085, 1103 (quoting State, Through Dep’t of Transp. and

Dev. v. Chambers Inv. Co., Inc., 595 So.2d 598, 602 (La. 1992)). “This ‘inverse

condemnation’ action ‘provides a procedural remedy to a property owner seeking

compensation for land already taken or damaged against a governmental or private

entity having the powers of eminent domain where no expropriation has

commenced.’” Id. at p. 26, 886 So.2d at 1104. “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.” Id. The Avenal

Court reaffirmed the three-pronged analysis the Supreme Court formulated in

Chambers to determine whether a claimant is entitled to just compensation under

the eminent domain provisions of Article I, § 4. These prongs include: (1) whether

a recognized species of property right has been affected; (2) whether that property

has been taken or damaged in a constitutional sense; and (3) whether the taking or

damaging was for a public purpose under Article I, § 4 of the Louisiana

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Constitution. Id. at pp. 26-27, 886 So.2d at 1104 (citing State, Through Dep’t of

Transp. and Dev., 595 So.2d at 603).

However, the Avenal Court determined that, in the matter under review by

that Court, it was unnecessary to conduct a full Chambers analysis. This is because

the main issue in Avenal was prescription—the central issue in the instant case.

The Supreme Court observed that the relevant consideration was whether the

plaintiff’s property was “taken” for a public purpose or whether it was “damaged”

for a public purpose. The Avenal Court explained that the distinction between a

taking and a damaging was relevant because of the differing prescriptive periods

for actions arising out of those two causes of action, as enunciated in La. R.S.

13:5111 and La. R.S. 9:5624. “Section 5111 of Title 13 is entitled ‘Appropriation

of property by state, parish, municipality or agencies thereof; attorney, engineering

and appraisal fees; prescription’ and provides in pertinent part: “[A] proceeding

brought against the state of Louisiana . . . or other political subdivision . . . for

compensation for the taking of property by the defendant, other than through an

expropriation proceeding . . . shall prescribe three years from the date of such

taking.” Id. at pp. 27-28, 886 So.2d at 1104. “Section 5624 of Title 9 provides:

‘When private property is damaged for public purposes any and all actions for such

damages are prescribed by the prescription of two years, which shall begin to run

after the completion and acceptance of the public works.’” Id. at p. 28, 886 So.2d

at 1104-05. “Thus, although the Louisiana Constitution provides that just

compensation shall be paid when property is taken or damaged, La. R.S.

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13:5111 provides a three-year prescriptive period for takings and La. R.S.

9:5624 provides a two-year prescriptive period for damage.” Id. at p. 28, 886

So.2d at 1105 (emphasis in original).

Turning to the case sub judice, Mr. Poydras claimed legal property rights to

his bar, its adjacent parking lot and the future profit derived from the bar. He

specifically alleged that because of the Project he was unable to operate his

business for several years, and this forced closure constituted a taking or inverse

condemnation of his property. Mr. Poydras further claimed that the City trespassed

on his property and took over physical use and possession of his parking lot

without his permission or compensation, causing damages and rendering it

unusable by his patrons. Mr. Poydras alleged that the damage to his bar, the

parking lot and the non-operation of his bar was the direct result of the Project.

Additionally, he alleged that the Project was in furtherance of a public purpose to

repair the drainage system and the streets, and since the Project damaged his

property and the profits derived therefrom, the City was required to compensate

him for said damages. We note, however, that in his brief to this Court, Mr.

Poydras fails to offer any viable argument to the City’s prescription exception on

the inverse condemnation. To the contrary, he concedes that La. R.S. 13:5111

“applies specifically to takings by a governmental entity, as is the case here,” but

argues that it would not bar all of his causes of actions.

Based on our de novo review and accepting the allegations in Mr. Poydras’

petition as true, Mr. Poydras alleges an inverse condemnation and taking of his bar

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and parking lot for a public purpose without just compensation. Accordingly, the

three-year prescriptive provision in La. R.S. 13:5111, governing such takings, is

applicable to these claims. Because the taking of his property commenced on

October 1, 2020, Mr. Poydras had until October 1, 2023, to institute an action

against the City. Mr. Poydras filed his petition on May 22, 2024; therefore, this

claim is prescribed. This argument is unpersuasive.

Failure to apply La. R.S. 9:5624

Next, Mr. Poydras asserts that even if the inverse condemnation or takings

claim has prescribed under La. R.S. 13:5111, he should still be granted relief under

La. R.S. 9:5624. To support this assertion, Mr. Poydras cites Avenal v. State,

supra, for the proposition that an action brought for damage to his property is one

that is separate from a takings action. In response, the City protests that only now,

before this Court, Mr. Poydras has for the first time raised that the prescriptive

period found in La. R.S. 9:5624 is applicable to his claims for physical damage to

his property. The City cites Uniform Rules—Courts of Appeal, Rule 1-3, which

provides, in pertinent part, that “[t]he Courts of Appeal will review only issues

which were submitted to the trial court.” We find this assertion to be in error.

Based upon our review of the record, the City’s memorandum in support of

its exception of prescription only addresses prescription as it pertains to inverse

condemnation. However, it is quite clear from Mr. Poydras’ petition that he made

claims for both an unconstitutional taking of his property without just

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compensation—i.e., inverse condemnation—and physical damage to his building

and parking lot.6

At the hearing on the exception of prescription, the district court recognized

the distinction between Mr. Poydras’ inverse condemnation claim and his claim for

a continuing trespass but failed to address his claims for physical damage to his

property because the exception was not specifically plead as to those claims. This

Court has previously explained that, “although the peremptory exception of

prescription may be heard for the first time by the appellate court, it must be

presented in a formal pleading and cannot be injected as an issue in the case by

brief or oral argument.” Lilly, Inc. v. Argus Tech. Sys., Inc., 538 So.2d 717, 721

(La. App. 4 Cir. 1989) (first citing La. C.C.P. art. 2163;7 then citing Bergeron v.

6 For example, in paragraphs 16 and 17 of his petition for damages, Mr. Poydras alleges:

16.
These acts of trespass causing damage constituted an actual taking of the private
property of plaintiff by the City of New Orleans for a public purpose without
compensation.

17.
The construction work engaged in by Defendants did in fact cause physical
damage to the Broadway Bar building in the course of its repairs to the road and
sidewalk causing cracks to appear in the building foundation and brickwork
facade and interior.

Mr. Poydras also made a claim for a continuing trespass, which will be addressed below.
7 Louisiana Code of Civil Procedure article 2163 provides:

A. The appellate court may consider a peremptory exception filed for the first
time in that court if the exception is pleaded prior to a submission of the case for a
decision and if proof of the ground of the exception appears of record.

B. If the ground for the peremptory exception pleaded in the appellate court is
prescription or peremption, the plaintiff may demand that the case be remanded to
the trial court for trial of the exception.

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Houma Hosp. Corp., 514 So.2d 1192 (La. App. 1st Cir. 1987), writ denied 517

So.2d 812 (La. 1988)).

However, as it is reflected in the record before this Court, the City did not

present a formal pleading or even attempt to inject into its appellate brief or at oral

argument that Mr. Poydras’ damage claims were prescribed. In fact, following

counsel for the City’s argument on the exception, this colloquy between the district

court and counsel for the City occurred:

THE COURT: And that’s to the inverse condemnation action,
correct?

COUNSEL: Yes, your Honor.

THE COURT: There’s also a trespass action – continuing
trespass action.

COUNSEL: As I read the petition, Your Honor, I only found
one cause of action against the City for an inverse condemnation.
Because you have the City as the actor[,] it’s my understanding that
inverse condemnation would be the appropriate action – was the
action alleged, and the applicable prescription period would be [La.
R.S.] 13:5111 since the City was the taker.

“It is a settled matter of law that Louisiana is a fact-pleading state.” Green

at p. 8, 2025 WL 1711294, at *5 (alteration in original) (quoting Bergeron v.

Bergeron, 23-0161, p. 3 (La. App. 4 Cir. 11/16/23), 377 So.3d 817, 819).

“Louisiana’s Code of Civil Procedure establishes a system of fact pleading.” Id. at

p. 9, 2025 WL 1711294, at *5; see also Martin v. Thomas, 21-01490, p. 6 (La.

6/29/22), 346 So.3d 238, 242. “So long as the facts constituting a cause of action

are alleged, the party may be granted any relief to which he is entitled under the

pleadings and the evidence; the ‘theory of the case’ doctrine, under which a party

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must select a theory of his case or defense and adhere to it throughout the

litigation, has been abolished.” Id. “This allows a plaintiff to recover under

whatever legal theory is appropriate based on the facts pleaded.” Id. As previously

stated elsewhere in this opinion, the Supreme Court made clear in Avenal that “[a]

distinction between a taking and a damaging is necessary because of the existence

of two relevant prescription statutes, La. R.S. 13:5111 and La. R.S. 9:5624.” 03-

3521, p. 27 (La. 10/19/04), 886 So.2d 1085, 1104. Whether Mr. Poydras’ property

damage claims are actionable under La. R.S. 9:5624 or any other prescriptive

period was not addressed by the district court and are not properly before this

Court. (See, e.g., Holmes v. City of New Orleans, where this Court discussed the

question of whether a plaintiff’s property damage claim stemming from a public

works project was subject to the prescriptive period found in La. R.S. 9:5624 or in

La. C.C. arts. 3492 and 3493,8 finding that it hinged on whether the damage was

incurred for a public purpose. 24-0047, pp. 5-7 (La. App. 4 Cir. 7/16/24), 401

8 The statutes in effect at all times relevant to this case provided:

La. C.C. art. 3492. Delictual actions

Delictual actions are subject to a liberative prescription of one year. This
prescription commences to run from the day injury or damage is sustained . . . .

La. C.C. art. 3493. Damage to immovable property; commencement and accrual
of prescription

When damage is caused to immovable property, the one year prescription
commences to run from the day the owner of the immovable acquired, or should
have acquired, knowledge of the damage.

Those statutes were repealed by Acts 2024, No. 423, and were recodified as La C.C. arts. 3493.1
and 3493.2, with an effective date of July 1, 2024, and now provide for a two-year prescriptive
period for delictual actions.

12

So.3d 731, 735-37). As such, the district court was in error to dismiss all of Mr.

Poydras’ claims with prejudice. This argument has merit.

The District Court erred in failing to apply the Continuing Tort Doctrine

We now turn to Mr. Poydras’ final argument. Mr. Poydras contends that the

continuing tort doctrine should apply to this case, which would prolong the

prescriptive period. In response, the City argues that the appropriation of land or

taking of property is not a tort. To support this argument the City cites Crooks v.

Dep’t of Nat. Res., 19-0160 (La. 1/29/20), 340 So.3d 574. In Crooks, the plaintiffs,

who were landowners, brought a claim for inverse condemnation against the

Louisiana Department of Natural Resources. Both the lower and intermediate

courts held that the plaintiffs’ claims had not prescribed under La. R.S. 13:5111 by

applying the continuing tort doctrine as utilized by the appellate court in Cooper v.

La. Dep’t of Pub. Works, 03-1074 (La. App. 3 Cir. 3/3/04), 870 So.2d 315. The

Louisiana Supreme Court disagreed. The Supreme Court espoused that “by

applying tort doctrine to an appropriation claim . . . the Cooper majority ignored

the court’s own longstanding precedent that ‘[t]he taking of property, by flooding

or otherwise, without proper exercise of eminent domain, is not a tort but is

considered an appropriation.’” Crooks, 19-0160, p. 13, 340 So.3d at 583 (quoting

Hawthorne v. Louisiana Dept. of Public Works, 540 So.2d 1261, 1262 (La. App. 3

Cir. 1989)) (emphasis in original). The Crooks Court concluded that, consistent

with La. R.S. 13:5111, “prescription begins to run when the claimant is aware of

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the facts that give rise to a cause of action.” Id. 19-0160, p. 15, 340 So.3d at 584

(citing Hawthorne, 540 So.2d at 1264).

Similar to the plaintiffs in Crooks, Mr. Poydras seeks compensation for the

taking of his property. Applying the holding in Crooks to the facts of this case, we

find that since the dispute is between Mr. Poydras and the City as the “taker” of the

land used for the Project, Mr. Poydras’ claim for compensation is governed by the

prescriptive period in La. R.S. 13:5111. Furthermore, Mr. Poydras’ “application of

the continuing tort doctrine to this case, as opposed to La. R.S. 13:5111,

contravenes the general rule under Louisiana law ‘that when conflicting statutes

are applicable, the one more specifically directed to the matter applies.’” Crooks,

19-0160, p. 14, 340 So.3d at 584 (quoting Avenal, 03-3521, p. 33, 886 So.2d 1085,

1108 n.29).

In sum, review of the record indicates that Mr. Poydras became aware of the

City’s construction no later than November of 2020, but he filed the petition on

May, 22, 2024, more than three years from the date he became aware of the facts

which gave rise to this suit. Therefore, we find that the continuing tort doctrine

does not apply to Mr. Poydras’ claim for inverse condemnation and his claim has

prescribed pursuant to La. R.S. 13:5111. This argument is unpersuasive.

CONCLUSION

For the foregoing reasons and upon our de novo review, we affirm that

portion of the judgment that granted the exception of prescription as to Mr.

Poydras’ inverse condemnation and trespass claims, vacate that portion of the

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judgment that dismissed Mr. Poydras’ property damage claims, and remand the

matter for further proceedings consistent with this opinion.

AFFIRMED IN PART;
VACATED IN PART;
REMANDED

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