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Parish of Jefferson v. Davie Shoring, Inc.

Court of Appeal of Louisiana, Fifth Circuit

February 11, 2015

PARISH OF JEFFERSON
v.
DAVIE SHORING, INC

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 698-424, DIVISION " M" . HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING.

THOMAS P. ANZELMO, SR., LOU ANNE MILLIMAN, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

MARC G. DORSEY, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst.

OPINION

JUDE G. GRAVOIS, Judge.

[14-701 La.App. 5 Cir. 2] Defendant/appellant, Davie Shoring, Inc. (" Davie" ) appeals a summary judgment granted in favor of plaintiff-in-reconvention, the East Jefferson Levee District (" the Levee District" ),[1] finding that Davie violated La. R.S. 38:213 by not securing a permit to drive a house-moving trailer carrying a wood-framed house, and other heavy equipment, across the Lake Pontchartrain

Page 926

levee to the shore of the lake near [14-701 La.App. 5 Cir. 3] the Bucktown Marina in Jefferson Parish, and awarding costs and expenses to the Levee District in the amount of $36,854.07, pursuant to La. R.S. 38:213(B). For the reasons that follow, we reverse the trial court's grant of summary judgment in favor of the Levee District and remand the matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On February 13, 2011, Davie moved a small wood-framed house from a location in Jefferson Parish to the shore of Lake Pontchartrain in Bucktown, near the Bucktown Marina, to await transportation across Lake Pontchartrain on a barge. The house, which measured approximately 24 feet by 50 feet, was loaded onto a trailer for that purpose and was driven by Davie employees across the Lake Pontchartrain levee on a two-lane paved public road that crosses the levee near the Marina and the United States Coast Guard Station in Bucktown. A second trailer with equipment and a " Bobcat" were also driven across the levee at said location at the same time.[2] After crossing the levee, the trailers were parked near the shoreline of Lake Pontchartrain, approximately 500 feet from the toe of the levee. According to the record, this land was owned by the State of Louisiana and was leased to Jefferson Parish for public use as the Bucktown Marina recreational development. It is undisputed that the trailers were not parked within the levee right-of-way.

On February 18, 2011, the Parish of Jefferson (" the Parish" ) filed a Petition for Mandatory Injunction and for Expedited Hearing against Davie, alleging that the trailers had been discovered five days earlier at the above-described location, and were parked there without permission from either the State or the Parish. The petition claimed that the Parish had requested that Davie move the trailers, to no avail. The Parish sought either a mandatory injunction requiring Davie to immediately remove the trailers and repair any damage caused to the property thereby, or alternatively, allowing it to demolish the house and remove the trailers at Davie's expense, plus any and all attorney's fees and costs of bringing the action.

Davie answered the petition on March 1, 2011, admitting ownership of the trailers, and that the trailers were parked on public leasehold property at the Bucktown Marina as described in the petition. Davie also admitted that it had [14-701 La.App. 5 Cir. 4] moved the trailers over the public streets and public areas to arrive at this location, but was stopped from proceeding by the Levee District. Davie further claimed that it was ready, willing, and able to move the trailers as requested by the Parish, but for threats of arrest made by the Levee District and its imposition of additional requirements, namely that the Levee District required Davie to secure a permit to recross the levee in order to remove the house and trailers from said location. Davie noted that the paved blacktopped road over the levee off of Old Hammond Highway contained no warning signs or other indications that the area was not for public use or that any special permits were required to enter the area. Nonetheless, Davie indicated in its answer that it was working diligently with the Levee District to secure the required permit to cross the levee again on this blacktopped road.

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Davie also filed, in the same pleading, a third-party demand against the Levee District, alleging that the Levee District had exceeded its jurisdiction by threatening its arrest powers against Davie, because the trailers were parked on property not owned or controlled by the Levee District and were at least 500 feet from the toe of the levee. Davie alleged that the Levee District threatened to arrest the engineers and inspectors employed by Davie to inspect the house in order to render reports needed to complete the permit application process, thus thwarting Davie's efforts to comply with the Levee District's requirement of securing a permit to move the trailers. Davie also alleged that the Levee District had demanded a construction permit even though by its own written application procedures, a permit is required only where construction involves the subsurface within 300 feet of the hurricane protection levees, whereas the trailers here were parked more than 500 feet from the levee. Davie asked the court to order the Levee District to allow Davie to proceed as necessary to remove the trailers from [14-701 La.App. 5 Cir. 5] the Parish's property and for damages and all equitable relief caused by the Levee District's unlawful conduct.

The Levee District filed an answer, exceptions, affirmative defenses, and a reconventional demand against Davie. In its affirmative defenses, the Levee District asserted the provisions of La. R.S. 38:213, 38:225, and 38:226.[3] In its reconventional demand, the Levee District sought reimbursement from Davie for expenses incurred by the Levee District, including but not limited to costs of continuous police monitoring of the property, excess costs incurred above and beyond the normal permitting process, and all costs related to necessary levee inspections to ensure that no damage resulted from the " illegal" actions of Davie.

A hearing on the injunction was held on March 14, 2011. At the conclusion of the hearing, the trial court ruled from the bench, granting the Parish's request for a mandatory injunction and ordering Davie to remove the house and trailers within twenty days of the hearing. The court also ordered Davie to obtain, prior to moving the trailers, where applicable, all appropriate permits, approvals, or letters of " no objection" from the Parish, the Levee District, and other appropriate entities. The matter was reset for a hearing on April 4, 2011, but the record does not reflect that any matters were heard on that date.

On August 15, 2011, the trial court granted the Parish's motion to dismiss the matter against Davie, without prejudice, noting that the third-party demand between Davie and the Levee District remained pending. Thereafter, on December 6, 2011, Davie filed an answer to the Levee District's reconventional demand, arguing that the Levee District took it upon itself to order 24-hour police monitoring of the house and trailers without prior notice to Davie so that it could [14-701 La.App. 5 Cir. 6] secure the property itself or provide more reasonable alternatives. Davie also noted that it provided the Levee District with an ...


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