ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 726-795, DIVISION " K" . HONORABLE ELLEN SHIRER KOVACH PRESIDING.
PASCAL F. CALOGERO, JR., JASON R. ANDERS, ATTORNEYS AT LAW, New Orleans, Louisiana; STEPHEN I. DWYER, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.
JAMES D. " BUDDY" CALDWELL, ATTORNEY GENERAL, RYAN M. SEIDEMANN, ASSISTANT ATTORNEY GENERAL, Louisiana Department of Justice, Civil Division, Baton Rouge, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.
Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst.
JUDE G. GRAVOIS, J.
[14-262 La.App. 5 Cir. 2] In this suit against the State of Louisiana, plaintiff Frank LaBruzzo appeals a trial court judgment that found his suit for compensation for the State's commandeering the use of his property adjacent to the 17th Street Canal in Jefferson Parish, as per La. R.S. 29:730, was prescribed under La. R.S. 13:5111, having been filed more than three years after plaintiff knew of facts sufficient to apprise him of his cause of action. For the reasons that follow, we affirm.
On May 9, 2013, plaintiff filed suit against the State of Louisiana, through the Governor and the Division of Administration, State Land Office (hereinafter, " the State" ), alleging in his petition that he owned immovable property that was included within the " Commandeering Land" that was " taken or commandeered" by the State pursuant to Executive Order No. KBB 2006-6 issued by Louisiana Governor Kathleen B. Blanco on February 10, 2006, pursuant to La. R.S. 29:721, et seq., the Louisiana Homeland Security and Emergency Assistance and Disaster [14-262 La.App. 5 Cir. 3] Act. This Executive Order, a copy of which was attached as an exhibit to plaintiff's petition, " commandeer[ed] the use" of certain immovable property located in Jefferson Parish, in Sections 121 and 122, Township 12 South, Range 11 East, containing approximately 10.2 acres, as shown on a map attached thereto, to be used for levee and floodwall construction and repair at the 17th Street Canal north of the Hammond Highway Bridge (the " Project" ). In the Executive Order, the State " commandeered the real property interests" and provided that the " owners of the property so commandeered shall be identified and compensated" in accordance with the terms of a cooperative agreement between the United States of America and the Orleans Levee District.
Plaintiff alleged in his petition that " [s]ince the date of the Constructive Taking [of his property] and at least since the issuance of the Executive Order commandeering [his] property on February 10, 2006 through the date of the filing of this Petition, [he] has continually been prevented from exercising his right of ownership of such property." Plaintiff further alleged in his petition that " [o]n February 13, 2006, work on the Project started, work that does not and has not used [his] Property
commandeered by the Executive Order." Plaintiff further specifically alleged that " [w]ith the commandeering or taking of [his] property by means of the Constructive Taking and/or the Executive Order, [he] ha[s] been divested of his ability to access and use the property." Plaintiff further alleged that he had not been tendered or provided with any compensation whatsoever as a landowner under the terms of the Executive Order or as per La. R.S. 29:730(F), nor had he ever been contacted by the State.
Defendant, the State of Louisiana, filed various exceptions to plaintiff's petition, including exceptions of no cause of action, no right of action, prematurity, [14-262 La.App. 5 Cir. 4] and prescription. Following a hearing on the exceptions on October 18, 2013, the trial court denied all of the exceptions except for the State's exception of prescription, which was granted and memorialized in a written judgment dated November 6, 2013. Plaintiff filed a motion for a new trial, which was denied on January 13, 2014. This devolutive appeal followed.
On appeal, plaintiff asserts the following assignments of error, to-wit:
1) The district court erred as a matter of law by ruling that no finding of a taking was necessary for the takings prescription statute, La. R.S. 13:5111, to protect the State from its act of commandeering of use;
2) The district court erred by misidentifying plaintiff's date of discovery sufficient to trigger the running of prescription under La, R.S. 13:5111;
3) The district court further erred by failing to recognize plaintiff's defenses of suspension and interruption of any accrual of prescription; and
4) The district court further erred by allowing the State to acquire de facto title to immovable property via liberative prescription of three years, despite the Supreme Court's prohibition on governmental entities acquiring prescriptive title.
With respect to the burden of proof as to a peremptory exception raising prescription, this Court has previously stated:
The party urging a peremptory exception raising prescription bears the burden of proof. Only if prescription is evident from the face of the pleadings will the plaintiff bear the burden of showing an action has not prescribed. In the absence of evidence, the objection of prescription must be decided upon the properly pleaded material allegations of fact alleged in the petition, and those alleged facts are accepted as true. In reviewing a peremptory exception raising the objection of prescription, appellate courts strictly construe the statutes against prescription and in favor of the claims that is said to be extinguished.
Trust for Melba Margaret Schwegmann v. Schwegmann Family Trust, 09-968 (La.App. 5 Cir. 9/14/10), 51 So.3d 737, 742-43. (Citations omitted.)
Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the [14-262 La.App. 5 Cir. 5] pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Holmes v. Notary ...