ELIZABETH SEWELL, WIFE OF/AND WILLIAM SEWELL, ELSEBETH FENNER, WIFE OF/AND JAMES FENNER AND BETH DUESSING, WIFE OF/AND GEORGE DUESSING VERSUS SEWERAGE AND WATER BOARD OF NEW ORLEANS
NO. 2019-CA-0268 CONSOLIDATED WITH: NO. 2020-CA-0624
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
JANUARY 20, 2021
Judge Tiffany G. Chase
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-04501, DIVISION “D” Honorable Nakisha Ervin-Knott, Judge
CONSOLIDATED WITH:
SEWELL, ELIZABETH, ET AL
VERSUS
* * * * * *
(Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins)
Joseph M. Bruno
Daniel A. Meyer
BRUNO & BRUNO LLP
855 Baronne Street
New Orleans, LA 70113
Michael T. Whitaker
THE WHITAKER LAW FIRM, APC
3 S/W Comer Mission and Ocean
Carmel, CA 93921
Alexis A. Butler
THE WHITAKER LAW FIRM, APC
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170
COUNSEL FOR PLAINTIFFS/APPELLEES
Craig B. Mitchell
Kiana M. Mitchell
Joseph B. Morton, III
Christopher D. Wilson
MITCHELL & ASSOCIATES, APLC
615 Baronne Street, Suite 300
New Orleans, LA 70113
Darryl Harrison
SEWERAGE & WATER BOARD OF NEW ORLEANS
625 St. Joseph Street
New Orleans, LA 70165
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
TGC
DLD
DNA
The Sewerage and Water Board of New Orleans (hereinafter “the S&WB“) appeals the trial court‘s November 27, 2018 judgment awarding damages totaling $483,779.97 to plaintiffs: Julia Kingham and Rick Boehm; Beryl Mundee; Dr. Shaminder and Nomita Gupta; Jenelle Slobof and Neal Cohen; Jeannie and Bob Gaddy; Richard O‘Neil; Anne Drown; Dr. Bryan and Meghan Payne; Jori Zlatkiss; and 2501 Napoleon Condominium Association (collectively “the Group B Plaintiffs“).1 The S&WB also appeals the trial court‘s March 28, 2019 judgment awarding $193,511.99 in attorneys’ fees. After consideration of the record before this Court and the applicable law, we affirm the judgments of the trial court.
FACTS AND PROCEDURAL HISTORY
This case involves several groups of homeowners who claimed their homes were damaged during the construction of a project in uptown New Orleans known as the Southeast Louisiana Urban Drainage Project (hereinafter “the SELA Project“). The SELA Project involved the construction of multiple drainage canals over several phases. The Group B Plaintiffs’ properties are within the Napoleon II phase that spanned Napoleon Avenue between its intersections with Carondelet Street and South Claiborne Avenue.
In 2009, the United States Army Corps of Engineers (hereinafter “the CORPS“) entered into a Project Partnership Agreement with the Louisiana Coastal Protection and Restoration Agency (hereinafter “the CPRA“), seeking to make the CPRA the non-federal sponsor for the project. Because the CPRA has no control over local drainage in Orleans Parish, it entered into a Cooperative Endeavor Agreement with the S&WB. Subsequently, in 2010, the S&WB signed a Programmatic Agreement (hereinafter “the PA“) which identified areas where construction activity could potentially damage nearby structures. The two distinct areas mapped out in the PA were designated as the Construction Impact Zone2 (hereinafter “the CIZ“) and
In May 2015, numerous plaintiffs filed claims for damages to their property against the S&WB asserting theories of strict liability caused by timber pile driving, custodial liability, negligence and inverse condemnation. The S&WB filed an answer including third-party indemnity demands against the contractors hired by the CORPS. The case was removed to federal court in July 2015. After the federal trial court granted the contractors’ motions for summary judgment based on immunity, the case was remanded to Civil District Court in January 2017. Given the large number of homeowners seeking recovery, the trial court divided the plaintiffs into trial groups. In March 2018, Residential Trial Group A claims were adjudicated after a four-day bench trial after which the trial court awarded plaintiffs $518,653.08 in damages.5
The Group B Plaintiffs’ trial took place before the same trial judge from October 15 to 18, 2018. A significant issue at trial was the location and relative distance of the Group B Plaintiffs’ properties from the SELA Project construction site. Only two of the six properties, the Gupta property and the 2501 Napoleon Condominium, were within the APE. The trial court heard lay testimony from the Group B Plaintiffs and John Fogarty of the CORPS. The trial court heard both expеrt testimony and lay testimony.6 On November 27, 2018, the trial court issued its written judgment, along with extensive written reasons, finding the S&WB liable for a total of $483,779.97 in damages pursuant to
STANDARD OF REVIEW
A court of appeal may not set aside a trial court‘s finding of fact in the absence of manifest error or unless it is clearly wrong. Rossell v. ESCO, 549 So.2d 840, 844 (La. 1989). “[W]here there is conflict in the testimony, reasonable evaluations of сredibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id. “Where there are two permissible views of the evidence, the factfinder‘s choice between them cannot be manifestly erroneous or clearly wrong.” Id. Thus, “the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder‘s conclusion was a reasonable one.” Stobart v. State through Dep‘t of Transp. and Dev., 617 So.2d 880, 882 (La. 1993).
DISCUSSION
Litigation surrounding the SELA Project hаs recently been before this Court on numerous occasions. See Sewell I; Greenblatt v. Sewerage & Water Bd. of New Orleans, 2019-0694 (La.App. 4 Cir. 12/20/19), 287 So.3d 763; Lowenburg v. Sewerage & Water Bd. of New Orleans, 2019-0524 (La.App. 4 Cir. 7/29/20), ___ So.3d ___, 2020 WL 4364345. In Greenblatt, plaintiff therein had his claim adjudicated in the same trial as the Group B Plaintiffs – the trial court rendered one judgment, with accompanying written reasons. Id., 2019-0694, p. 8, 287 So.3d at 769. Thus, this Court has previously considered several of the S&WB‘s asserted assignments of error; specifically, that the S&WB is the custodian of the SELA Project, that inverse condemnation damages include the full extent of just compensation, and that the trial court did not err in failing to assign comparative fault. See Id., 2019-0694, pp. 4-6, 287 So.3d at 767-68; Sewell I, 2018-0996, pp. 4-19, 2019 WL 2305673 at *2-9. These issues arе not plaintiff-specific and we will not revisit them in the matter sub judice. See Bank One Nat. Ass‘n v. Velten, 2004-2001, pp. 5-7 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458-59 (discussing application of the law of the case doctrine and its underlying policy reasons). However, the S&WB emphasizes a key factual distinction in this case; namely, whether the distance of the Group B Plaintiffs’ properties from the SELA Project construction site differs from the Greenblatt and Sewell I plaintiffs.
Thus, we frame the S&WB‘s remaining assignments of error as follows: 1) the trial court erred in its finding of custodial liability; 2) the trial court erred in its finding of strict liability for ultra-hazardous timber pile driving; 3) the trial court erred in its finding of inverse condemnation or, alternatively, the quantum of damages; and 4) the trial court erred in its award of attorneys’ fees. We address these arguments in turn.
CUSTODIAL LIABILITY
The S&WB avers the trial court erred in its finding of custodial liability. A finding of custodial liability against a public entity requires that a plaintiff prove four elements: 1) the thing which caused damage was owned or in the custody of the public entity; 2) the thing was defective due to a condition creating an unreasonable risk of harm; 3) the public entity had actual or constructive notice of the defective condition yet failed to take corrective action within a reasonable period of time;
Condition Creating an Unreasonable Risk of Harm
The second element required for a finding of custodial liability against a public entity examines whether a thing is defective such that it creates an unreasonable risk of harm. The S&WB argues that all of the Group B Plaintiffs’ properties were outside of the ZOI and CIZ and that all but two – the Gupta property and the 2501 Napoleon Condominium – were outside of the APE. Further, that the various agreements the S&WB perfected with the CORPS only anticipated damages within the ZOI and CIZ thus the construction activity did not create an unrеasonable risk of harm to the Group B Plaintiffs. “Whether a risk is unreasonable is a matter ‘wed to the facts’ and must be determined in light of the facts and surrounding circumstances of each particular case. There is no fixed rule as to whether the thing presents an unreasonable risk of harm.”8 Dupree v. City of New Orleans, 1999-3651, pp. 13-14 (La. 8/31/00), 765 So.2d 1002, 1012 (internal quotation omitted).
The trial court found that the “S&WB was well aware that the project presented a risk of harm to plaintiffs’ properties pursuant to the terms of the PA and its understanding from [the] CORPS that properties could experience vibration related damages.” The trial court also found that the “S&WB provided a hotline for anticipated complaints from homeowners” and that the “S&WB hired a forensic contractor [Quick & Associates] who was required to collect photo documentation of all existing structures prior to initiation of construction for purposes of claim resolution.” Plaintiff, Beryl Mundee (hereinafter “Ms. Mundee“) testified that workers from Quick & Associates came to her property on South Liberty Street, outside of the APE, in September 2012 and took approximately two hundred photographs.9 Ms. Mundee also testified her home was in perfect condition in 2012 and that her first complaint of damages to the S&WB hotline was not until September 2015. During his direct examinаtion, Dr. Bailey relied on 2011 photographs taken by Quick & Associates as a pre-construction activity reference when discussing damages present in the Greenblatt properties located within the APE. This evidence suggests that the S&WB anticipated damages as far reaching as Ms. Mundee‘s property outside of the APE.
Actual or Constructive Notice
The third element required for a finding of custodial liability against a public entity examines whether the public entity had actual or constructive notice of the defect and failed to take corrective action. “Actual notice is given under
Causation
The fourth element required for a finding of custodial liability against a public entity is causation. The S&WB argues the Group B Plaintiffs’ failed to produce sufficient evidence to show construction activity related to the SELA Project was the cause of their damages. A plaintiff must prove causation by a preponderance of the evidence. Sewell I, 2018-0996, p. 13, 2019 WL 2305673 at *6. “To be actionable, the cause need not be the sole cause but, it must be a cause in fact, and to be a cause in fact it must have a proximate relation to thе harm which occurs and it must be substantial in nature.” Id. (citing Chanthasalo v. Deshotel, 2017-0521, p. 9 (La.App. 4 Cir. 12/27/17), 234 So.3d 1103, 1109). “If...circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty.” Sewell I, 2018-0996, p. 13, 2019 WL 2305673 at *6. In its finding of causation, the trial court relied on both lay witness and expert testimony observing “the evidence shows a consistency and commonality of damages shared by all houses along the SELA Project route.”
All of the Group B Plaintiffs’ testified to having, at most, only minor issues with their properties prior to the start of the SELA Project. In many instances, appraisal reports predating the construction activity corroborated their testimony. The Group B Plaintiffs testified to experiencing vibrations of such intensity that their houses shook from either the timber pile driving or the constant operation of other heavy equipment and construction traffic. The Group B Plaintiffs further testified that as the construction progressed, damage manifested itself in a variety of common forms including significant cracking of walls, separation of molding, separation of
The expert witnesses рresented competing theories of causation. Dr. Storesund offered a general causation opinion that the construction activity from the SELA Project was a substantial factor in causing damage to the Group B Plaintiffs’ properties. He testified there were vibrational spikes in excess of the requisite threshold, 0.25 ppv,10 in the area around the Group B Plaintiffs’ properties. Although he could not place them specifically in front of the properties at issue, he opined that the reliability of the vibration monitoring data was incomplete and unreliable given inconsistent placements – for example, no vibration monitoring equipment was in place on the side streets off Napoleon Avenue. He further questioned the methodology behind setting the scope of the ZOI and observed that, by definition; the APE “is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.”
Michael Gurtler testified that the damage to the Group B Plaintiffs’ properties is consistent with the damage he has seen elsewhere within approximately one block of the SELA Project. He further testified the damage is unique to this area and is not similar to the type of settlement damage seen in other properties across the New Orleans area. Michael Gurtler explained that most settlement-related damage occurs within the first year to two years of initial construction and effectively stops within five years. He opined that the only plausible explanation for the damages is due to the SELA Project causing vibrations from either timber pile driving, or heavy equipment and construction vehicles moving on residential streets not designed to support them. Fritz Gurtler concurred and testified the damage seen to properties within the ZOI is consistent with the damage to neаrby properties, despite their location on adjoining side streets and outside of the APE. He further opined that even if some initial damage was due to differential settlement, the construction activity related to the SELA Project exacerbated any pre-existing damage. He confirmed that vibrations generated by the construction activity was a substantial contributing cause of the damage to the Group B Plaintiffs’ properties.
Conversely, the S&WB‘s expert, Dr. Sykora disagreed with Michael Gurtler‘s opinion that settlement damage stops after five years. He opined that, according to his first hand inspections, the damаge to the Group B Plaintiffs’ properties was from the progressive, long-term differential settlement over the life of the buildings primarily because of the expansive and compressible soil. Dr. Syorka testified that the vibrational threshold used for the SELA Project was on the conservative end and, typically, building damages do not result unless vibration readings exceed 0.5 ppv. He further testified that vibrations from the construction activity would attenuate and result in a lesser impact, particularly for distances greater than fifty feet from the source of the vibrations. Dr. Sykora discounted the lay witness testimony to the extent hе testified people are more sensitive to vibrations than buildings.
Dr. Bailey agreed with Dr. Sykora that the construction activity did not cause any structural damage to the Group B Plaintiffs’ properties and that any cosmetic damage (e.g., sheetrock and floorboards) was due to differential settlement or other forms of distress such as seasonal temperature changes. Dr. Bailey also refuted several
A trial court has broad discretion in determining the weight given to expert testimony including the discretion to substitute common sense and judgment when warranted by the record. See 429 Bourbon Street, LLC v. RMDR Investments, Inc., 2016-0800, p. 15 (La.App. 4 Cir. 11/15/17), 230 So.3d 256, 266 (citations omitted). Where findings of fact are based on determinations regarding the credibility of expert witnesses, the manifest error standard requires appellate courts to give great deference to a trial court‘s findings. See Bellard v. American Cent. Ins. Co., 2007-1335, p. 27 (La. 4/18/08), 980 So.2d 654, 672 (citing Rosell, 549 So.2d at 844). Thus, where a trial court bases a factual determination on a decision to credit one set of experts over another, such a finding can virtually never be manifestly erroneous. Id. (citing Rosell, 549 So.2d at 845).
The trial court, in assessing the credibility of the experts, chose to accept the testimony of Dr. Storesund and the Gurtlers. In conjunction with evaluating the testimony from the lay witnesses,11 the trial court made a factual determination that the construction activity related to the SELA Project was the cause of the damages and rejected the hypothesis that differential settlement was the cause of the damages. See Rando, 2008-1163, p. 33, 16 So.3d at 1090; Holzenthal v. Sewerage & Water Bd. of New Orleans, 2006-0796, p. 37 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, 78 (observing crack-by-crack analysis is unnecessary in weighing expert testimony). After reviewing the record, we find the trial court did not err in finding “the commonality of the damages indicates that [the Group B Plaintiffs‘] properties were adversely affected by the [SELA Project] construction activity.” Accordingly, the S&WB assignment of error as to the trial court‘s finding of custodial liability is without merit.
STRICT LIABILITY FOR ULTRA-HAZARDOUS TIMBER PILE DRIVING
The S&WB avers the trial court erred in its finding of strict liability for ultra-hazardous timber pile driving. Although it stipulated that timber pile driving occurred during the Napoleon II phase, the S&WB argues the Group B Plaintiffs failed to meet their burden of proof that their damages resulted from this activity. “In a strict liability action for timber pile driving, proof of the causative factor is subject to the same standard as proof of negligence in a delictual action.”12 Sewell I, 2018-0996, p. 13, 2019 WL 2305673 at *6. The trial court‘s judgment decrees that the “S&WB is strictly liable under Louisiana Civil Code article 667 for ultra-hazardous pile driving which occurred near the properties in the Napoleon II phase of the SELA project.” The S&WB specifically argues that the damages incurred by Ms. Slobof
As to the remaining Group B Plaintiffs, the S&WB interprets our decisions in Holzenthal and Sewell I to require that the “totality of the evidence” related to causation for timber pile driving must derive from a certain location, distance and a specific data set of vibration readings. We disagree. The only requirement is that a plaintiff prove damage and causation by a preponderance of the evidence. See Sewell I, 2018-0996, p. 13, 2019 WL 2305673 at *6. In light of the evidence previously reviewed for the claims under custodial liability, we find this assignment of error is without merit.13
INVERSE CONDEMNATION
The S&WB avers the trial court erred in its finding of inverse condemnation and in the quantum of damages awarded. “Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.”
The Group B Plaintiffs presented testimony as to several factors that affected the use and enjоyment of their properties. First, the Group B Plaintiffs testified that the excessive noise and vibrations made it difficult for them to work from home, sleep and go about daily activities. Second, the Group B Plaintiffs testified to the heavy amounts of dust that would cover the exterior areas of their properties and infiltrate the interior of their homes. Third, the Group B Plaintiffs testified to construction vehicles and equipment blocking access to their driveways and blocking street access. Finally, the Group B Plaintiffs testified that a combination of the above factors prevented them from entertaining family members and guests.
Dr. Storesund testified that the S&WB did nоt calibrate the vibration monitoring equipment to monitor sound exposure levels despite the ability of the equipment having such capability – it only recorded spikes starting in the 90 dB to 100 dB range. He further testified that this exceeded the 85 dB limit allowed by the Napoleon II project specifications. Dr. Storesund relied on these reported spikes and the aggregate decibel level of equipment used on a given day to corroborate the Group B Plaintiffs’ noise exposure testimony. Unlike the plaintiff in Chambers, the above testimony reflects actual, not speculative or trivial, loss of use and enjoyment. Sеe SDS, Inc. v. State, Dep‘t of Transp. and Dev., 2007-0406, p. 6 (La.App. 4 Cir. 2/13/08), 978 So.2d 1013, 1017. Accordingly, we find the trial court did not err in its finding of inverse condemnation.
The S&WB further avers the trial court erred in the quantum of the inverse condemnation damage awards. “The determination of what amount will compensate the owner of a property right to the full extent of his loss because of expropriation of his right must be made on the basis of the facts of each case and in accord with the uniqueness of the thing taken.” Louisiana Intrastate Gas Corp. v. Gulf Outlet Lands, Inc., 542 So.2d 705, 706 (La.App. 4th Cir. 1989) (further
ATTORNEYS’ FEES
The S&WB avers the trial court erred in its award of attorneys’ fees. Specifically, it requests this Court reduce the quantum of attorneys’ fees awarded in the event this Court reduces the damages awarded to the Group B Plaintiffs. Appellate courts review a trial court‘s award of attorneys’ fees under an abuse of discretion standard. Greenblatt, 2019-0694, p. 12, 287 So.3d at 771 (citing Covington v. McNeese State Univ., 2012-2182, p. 6 (La. 5/7/13), 118 So.3d 343, 348). The record reflects that while the Group B Plaintiffs requested attorneys’ fees greater than the forty percent contingency fee arrangement, counsel for the S&WB argued, “the contingency fee agreement should be the most appropriate remedy.” The trial court, rejecting the Group B Plaintiffs’ request for an increase, awarded attorneys’ fees of $193,511.99 calculated pursuant to the forty percent contingency fee arrangement.
An appellate court‘s role is not to determine what it considers to be an appropriate award of attorneys’ fees, but rather to review the exercise of discrеtion of the trial court. Covington, 2012-2182, p. 11, 118 So.3d at 351. The trial court observed the time and effort expended by counsel, the intricacies of the facts involved, and received documentary evidence of the contingency fee arrangement and billing statements. See State, Dep‘t of Transp. & Dev. v. Williamson, 597 So.2d 439, 442 (La. 1992). Given that the trial court‘s award of attorneys’ fees based on the forty percent contingency fee arrangement is reasonable – and that we have not altered the quantum of the trial court‘s award of damages – we find the trial court did not abuse its discretion in setting attorneys’ fees. This assignment of error is without merit.
DECREE
For the foregoing reasons, we affirm the judgment of the trial court.
AFFIRMED