322 So.3d 1268
La. Ct. App.2021Background
- Plaintiffs Terri Stevens and Jennifer Fruchtnicht own adjoining five-acre tracts fronting Dove Park Road in St. Tammany Parish and allege parish public-works projects increased contaminated stormwater/effluent and otherwise damaged their property.
- Plaintiffs sued St. Tammany Parish Government (STPG) in 2015 asserting claims including (Count 1) violation of natural servitude of drain, (Count 2) inverse condemnation and constitutional claims, (Count 3) intentional damage to property, (Count 4) possessory action, (Count 5) LUTPA, and (Count 6) RICO.
- The trial court dismissed several claims and individual defendants via exceptions (no cause of action, res judicata), excluded much of plaintiffs’ expert evidence for failure to comply with expert-report deadlines, and sustained STPG’s prescription objection as to claims arising from 1993, 2001, and 2011–12 public works.
- After excluding evidence and hearing cross-motions, the trial court granted STPG summary judgment dismissing remaining claims related to the 2015 project, denied plaintiffs’ motion to disqualify defense counsel based on an ex parte conversation, and denied plaintiffs’ motion for new trial.
- Plaintiffs appealed; the First Circuit affirmed the trial court on all appealed rulings (disqualification, LUTPA no-cause ruling, expert exclusions, prescription, summary judgment, and denial of new trial), with one judge dissenting in part as to the natural-servitude summary-judgment ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel should be disqualified for an ex parte office conversation with Stevens (Rule 4.2) | Ex parte contact violated Rule 4.2 and prejudiced plaintiffs; disqualification necessary. | Conversation was brief, revealed no privileged/confidential info and caused no trial prejudice. | Denial affirmed — Rule 4.2 violation found but no prejudice shown; disqualification and sanctions not warranted. |
| Whether plaintiffs stated a cause of action under LUTPA | STPG’s conduct (ownership/operation of drainage assets) constituted trade/commerce actionable under LUTPA. | STPG not engaged in "trade or commerce" as defined by La. R.S. 51:1402; LUTPA does not apply. | Judgment sustaining no-cause exception for LUTPA affirmed — petition lacked factual allegations showing trade/commerce. |
| Whether claims based on 1993, 2001, 2011–12 public works were prescribed under La. R.S. 9:5624 | Plaintiffs invoked contra non valentem (discovery rule) or continuing tort to avoid prescription. | La. R.S. 9:5624’s two-year prescription runs from completion/acceptance; no exceptional facts to suspend prescription; continuing tort doctrine inapplicable. | Exception sustained and claims arising from those projects dismissed — discovery rule not shown; Avenal precludes continuing-tort tolling. |
| Whether a natural servitude of drain claim (Count 1) survived summary judgment as to the 2015 Dove Park Road project | Cavell’s affidavit raised factual disputes that the 2015 project altered drainage and increased burden; summary judgment inappropriate. | STPG’s experts and historical maps establish a natural drain toward Little Creek and no change in drainage from the 2015 project. | Summary judgment for STPG affirmed — plaintiffs failed to present admissible evidence creating a genuine issue on the servitude alteration (one judge dissented in part). |
| Whether inverse condemnation and constitutional (due process/equal protection) claims and intentional-tort claims survive summary judgment | Plaintiffs contend the 2015 project damaged property, constituting a taking/damage and constitutional violations; alleged intentional discharges. | STPG’s evidence shows no change in culvert size/location or drainage burden from the 2015 project; parish does not discharge sewage from parish facilities in area. | Summary judgment for STPG affirmed — plaintiffs offered no competent evidence of constitutional taking, due-process/equal-protection violation, or intentional parish-caused sewage discharge. |
| Whether plaintiffs’ possessory action survives summary judgment | Plaintiffs assert ongoing disturbance from increased, contaminated drainage interfering with possession. | Plaintiffs failed to show a disturbance attributable to the 2015 project or to meet one-year filing requirement for earlier disturbances. | Summary judgment for STPG affirmed — plaintiffs did not establish the required disturbance element for a possessory action. |
Key Cases Cited
- Succession of Armand, 297 So. 3d 37 (La. App. 3d Cir. 2020) (disqualification review and standards)
- Walker v. State, Dept. of Transp. and Dev., 817 So. 2d 57 (La. 2002) (burden to prove counsel disqualification)
- Jenkins v. Wal-Mart Stores, Inc., 956 F. Supp. 695 (W.D. La. 1997) (purposes of Rule 4.2: protect attorney-client communications and prevent coercive ex parte elicitation)
- Papanicolaou v. Chase Manhattan Bank, N.A., 720 F. Supp. 1080 (S.D.N.Y. 1989) (disqualification considered only where prejudice to process exists)
- Terrebonne Parish Police Jury v. Matherne, 405 So. 2d 314 (La. 1981) (scope and limits of natural servitude of drain)
- Avenal v. State, 886 So. 2d 1085 (La. 2004) (La. R.S. 9:5624 two-year prescription for public-work damages; continuing-tort doctrine inapplicable)
- Marin v. Exxon Mobil Corp., 48 So. 3d 234 (La. 2010) (application of contra non valentem discovery rule)