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Greenblatt v. Sewerage & Water Board of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

December 20, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-10344, DIVISION "D" Honorable Nakisha Ervin-Knott, Judge


          Craig B. Mitchell Kiana M. Mitchell Joseph B. Morton, III Christopher D. Wilson MITCHELL & ASSOCIATES, APLC Darryl Harrison SEWERAGE & WATER BOARD OF NEW ORLEANS COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dale N. Atkins


         The Sewerage and Water Board of New Orleans ("S&WB") appeals two judgments rendered by the trial court awarding Leon Greenblatt $94, 429.51 for damages to his property and $37, 771.80 in attorney fees. For the reasons that follow, we affirm the judgments of the trial court.


         In the years following hurricanes Katrina and Rita, the United States Congress appropriated funds to the United States Army Corps of Engineers ("USACE") for the purpose of modifying authorized projects to provide hurricane, storm and flood damage reduction in the greater New Orleans area. The project made the subject of this litigation is designated as the Southeast Louisiana Urban Drainage Project ("SELA"). The USACE entered into a Project Partnership Agreement ("PPA") with the Louisiana Coastal Protection and Restoration Authority ("CPRA"), seeking to make the CPRA the non-federal sponsor for the project. However, because the CPRA has no control over local drainage in Orleans Parish, it in turn entered into a Cooperative Endeavor Agreement ("CEA") with the S&WB to allow the construction to go forward.

         On October 28, 2015, Mr. Greenblatt filed suit against the S&WB and the three contractors with whom the USACE had contracted to perform the work alleging that the construction project damaged two of his properties located at 2601-03 and 2605 Napoleon Avenue. The three contractors removed the suit to federal court and filed motions for summary judgment asserting immunity from suit as federal government contractors. The federal court granted the contractors' motions, dismissing all claims against them, and remanded the matter to Civil District Court for proceedings against the S&WB.[1]

         This matter was tried, along with a companion (but not consolidated) case entitled Sewell v. Sewerage & Water Bd. of New Orleans, [2]on October 15-18, 2018, with one judgment being rendered as to all parties. In Sewell, the trial court ruled on the liability issues, found that the SELA project caused damages to all plaintiffs' properties and thus, the S&WB was liable for those damages. The trial court found the S&WB liable on a number of theories: inverse condemnation; strict liability pursuant to La. Civ. Code articles 2317 and 2317.1; and strict liability for ultra-hazardous pile driving pursuant to La. Civ. Code art. 667. The trial court then found that the construction activities caused the plaintiffs' property damages and that the S&WB failed to demonstrate the comparative fault of other parties involved in the construction. The trial court rendered separate damages awards to each plaintiff.

         In Mr. Greenblatt's case, the trial court awarded $94, 429.51 for damages to his two properties, but rejected his claims for loss of rent, for the diminution in the value of his properties and his claim for emotional distress. Following a separate hearing on his motion to award attorney fees and costs, the trial court awarded Mr. Greenblatt attorney fees in the amount of $37, 771.80.


         A. Standard of Review:

         Appellate courts apply the "manifest error" or "clearly wrong" standard when reviewing a trial court's findings of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)(citations omitted). This standard of review requires the appellate court to apply a two-part test:

(1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is clearly wrong (manifestly erroneous).

Wilson v. Veolia Transp. Servs., Inc., 15-0998, p. 3 (La.App. 4 Cir. 4/13/16), 192 So.3d 245, 248 (citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987)). As we noted in Wilson:

This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. 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. (Citations omitted).

Id. Furthermore, "[w]here two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently." Everhardt v. Louisiana Dep't of Transp. & Dev., 07-0981, p. 18 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1049. Accordingly, reasonable evaluations of credibility and reasonable inferences of fact are not to be disturbed by an appellate court even though it "may feel its own evaluations and inferences are more reasonable than the fact finder's." Id.

         B. Liability Issues

         All issues of liability, i.e., strict liability pursuant to Louisiana Civil Code articles 2317, 2317.1 and 667, and comparative fault, were previously decided and reviewed in the Sewell matter. The Sewell court held, in pertinent part, as follows:

[Inverse condemnation[3] -] "[T]he SELA project was a state project, wherein the S[&]WB was acting under its power of eminent domain in carrying out that project. Thus, we cannot say that the trial court was manifestly erroneous in finding that the SWB was liable to ...

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