OSCAR V. POYDRAS D/B/A * NO. 2025-CA-0206 BROADWAY BAR * VERSUS COURT OF APPEAL * THE CITY OF NEW ORLEANS FOURTH CIRCUIT AND WALLACE C. DRENNAN * INC. STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2024-04721, DIVISION “E” Honorable Omar Mason, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Rachael D. Johnson)
Christian S. Smith Mark William Smith MARK W. SMITH & ASSOCIATES, PLC 500 N. Causeway Blvd. Metairie, LA 70001
COUNSEL FOR PLAINTIFF/APPELLANT
Elizabeth A. Weigand ASSISTANT CITY ATTORNEY Donesia D. Turner CITY ATTORNEY Corwin St. Raymond CHIEF DEPUTY CITY ATTORNEY 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED IN PART; VACATED IN PART; REMANDED SEPTEMBER 25, 2025 PAB TGC RDJ
This case involves a peremptory exception of prescription. Appellant, Oscar
Poydras d/b/a Broadway Bar (“Mr. Poydras”), appeals the November 19, 2024
judgment of the district court, which sustained the peremptory exception of
prescription (the “exception”) filed by Appellee, the City of New Orleans (the
“City”), and dismissed all of Mr. Poydras’ claims against the City with prejudice.
Based upon our de novo review and for the reasons that follow, we affirm that
portion of the judgment that granted the exception of prescription as to Mr.
Poydras’ inverse condemnation and trespass claims, vacate that portion of the
judgment that dismissed Mr. Poydras’ property damage claims, and remand the
matter for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Mr. Poydras is the owner and operator of Broadway Bar (the “bar”) located
at 3005 Broadway Street, New Orleans, Louisiana. On May 22, 2024, Mr. Poydras
filed a Petition for Damages Caused by Negligence, Trespass and Uncompensated
Taking of Private Property for a Public Purpose (the “petition”), naming the City
1 as a defendant.1 In the petition, Mr. Poydras alleged that from October 1, 2020,
until approximately September 30, 2023, the City was engaged in a construction
project called the Marlyville-Fountainbleau Group C Construction (the “Project”),
which took place on Fig Street and Broadway Street in front of and adjacent to the
bar. The Project included repairing sewerage, water and drainage lines, as well as
rebuilding streets, sidewalks and curbs throughout the City. Mr. Poydras claimed
that the work on the Project rendered the streets and sidewalks in front of the bar
impassable and physically prevented bar patrons from accessing the bar. As a
result, from November 24, 2020,2 until approximately September 30, 2023, he was
unable to open, operate or engage in any of the bar’s business. According to Mr.
Poydras, this forced closure of the bar constituted a taking of his property for a
public purpose without just compensation. In addition, Mr. Poydras averred that
from the date the construction commenced until June 1, 2023, the City, through its
general contractor Mr. Drennan, commandeered his parking lot when it parked
vehicles and heavy equipment on the lot and stored its construction supplies and
debris there without his permission and without providing just compensation. Mr.
Poydras asserted that this action by the City constituted a trespass. Lastly, Mr.
Poydras asserted that the construction work and the trespass caused physical
damage to the bar and parking lot. He is seeking damages for just compensation for
the taking of his properties and the physical damage to his building and parking lot.
1 Wallace C. Drennan (“Mr. Drennan”) was also named as a defendant in the petition. However, this appeal solely
pertains to the judgment on the exception filed by the City. 2 The bar was forced to cease operations due to the COVID-19 Pandemic beginning March 2020
and ending November 24, 2020. However, Mr. Poydras alleges that the bar was unable to resume operations in November because of the ongoing Project.
2 The City filed the exception and argued that based upon the factual
allegations raised in the petition, Mr. Poydras asserted a cause of action for an
inverse condemnation. Thus, pursuant to La. R.S. 13:5111,3 the prescriptive period
for Mr. Poydras’ claims for uncompensated takings or inverse condemnation had
prescribed as a matter of law. Moreover, the City contended that Mr. Poydras
cannot rely on the continuing tort doctrine for his allegations of a continued
trespass to extend the prescriptive period because the City, a municipality, is
governed by La. R.S. 13:1511, not the doctrine of torts. In opposition, Mr. Poydras
posited that the actions by the City constituted a continuous taking and continuous
trespass such that the prescriptive period does not end until the taking ceases. A
hearing on the exception was held on November 8, 2024. On November 19, 2024,
the district court rendered judgment in favor of the City, sustaining the exception
and dismissing all claims asserted by Mr. Poydras against the City with prejudice.
This timely appeal followed.
STANDARD OF REVIEW/ BURDEN OF PROOF
This Court has previously noted that “[t]he applicable standard of review of
a judgment on a peremptory exception of prescription turns on whether evidence
was introduced on the exception . . . .”4 Green v. Phipps-Green, 25-0006, p. 3 (La.
App. 4 Cir. 6/19/25), ___ So. 3d ___, ___, 2025 WL 1711294, at *2 (citing Mopsik
v. Galjour, 24-0189, p. 9 (La. App. 4 Cir. 9/25/24), 399 So.3d 811, 819). “In those
3 Louisiana Revised Statutes 13:5111 will be more fully discussed, infra.
4 Prescription—in this case liberative prescription—is defined as “a mode of barring of actions as
a result of inaction for a period of time.” La. C.C. art. 3447.
3 matters where evidence is introduced, the [district] court’s findings are reviewed
under the manifest error standard of review.” Id. (citing Attamari v. Allstate Prop.
& Cas. Ins. Co., 24-0128, p. 7 (La. App. 4 Cir. 10/4/24), 400 So.3d 1156, 1162.
Nevertheless, “when, as here, ‘no evidence is introduced, then the de novo standard
of review applies and the exception is decided based on the petition’s allegations,
which are accepted as true.’” Id. In the instant matter no evidence was introduced;
hence, we apply a de novo standard of review.
“The prescriptive period applicable to an action is determined by the
character of the action disclosed in the pleadings.” Faubourg Saint Charles, LLC v.
Faubourg Saint Charles HOA, Inc., 18-0806, p. 4 (La. App. 4 Cir. 2/20/19), 265
So.3d 1153, 1157 (quoting Born v. City of Slidell, 15-0136, p. 8 (La. 10/14/15),
180 So.3d 1227, 1232). “The burden of proof is on the party pleading prescription;
however, if prescription is evident on the face of the pleadings, the burden of proof
shifts to the plaintiff to show the action has not prescribed.” Faubourg Saint
Charles, LLC, 18-0806, p. 4, 265 So.3d at 1157 (first citing Metairie III v. Poche’
Const., Inc., 10-0353, p. 4 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449; then citing
Ivy Rest. New Orleans, LLC v. Torre, 16-0777, p. 5 (La. App. 4 Cir. 2/1/17), 211
So.3d 676, 680).
With these precepts in mind, we turn to our de novo review.
DISCUSSION
4 In his appeal to this Court, Mr. Poydras assigns three errors,5 and three
issues for our review, which we summarize as follows: (1) the district court erred
in granting the City’s peremptory exception of prescription when it applied La.
R.S. 13:5111; (2) the district court erred in failing to apply La. R.S. 9:5624 to
determine prescription for damages caused to Mr. Poydras’ property by the City;
and (3) the district court erred in finding that the continuing tort doctrine did not
apply to the facts of this case. We will address each argument in turn.
La. R.S. 13:5111- Prescriptive Period for Taking Without Just Compensation
Mr. Poydras asserts that he is entitled to just compensation because the City
engaged in an inverse condemnation of his property when: (1) the Project
prevented him from operating his bar for several years, which caused a forced
closure and lost profits; and (2) the City commandeered his parking lot to park its
construction vehicles.
The City does not dispute that Mr. Poydras’ property was taken or that he
lacks merit for an inverse condemnation action. Rather, the City argues that if, as
alleged here, there was a taking and the property was taken for a public purpose the
5 Specifically, Mr. Poydras’ assignments of error are as follows:
(1) The District Court erred in granting defendant’s Peremptory Exception of Prescription.
(2) The District Court erred in dismissing all of plaintiff’s causes of action, against the City of New Orleans especially those not subject to the 3-year prescriptive period.
(3) The District Court erred in failing to apply La. R.S. 9:5624 to determine prescription for damages caused to Appellant’s property by the City of New Orleans.
5 action should be governed by the three-year prescriptive period as set forth in La.
R.S. 13:5111. We agree.
Louisiana Constitution Article I, § 4 (B)(1) provides, in pertinent part, that
“[p]roperty 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 . . .” “[O]ur constitution requires compensation even though
the State has not initiated expropriation proceedings in accordance with the
statutory scheme set up for that purpose.” Avenal v. State, 03-3521, p. 26 (La.
10/19/04), 886 So.2d 1085, 1103 (quoting State, Through Dep’t of Transp. and
Dev. v. Chambers Inv. Co., Inc., 595 So.2d 598, 602 (La. 1992)). “This ‘inverse
condemnation’ action ‘provides a procedural remedy to a property owner seeking
compensation for land already taken or damaged against a governmental or private
entity having the powers of eminent domain where no expropriation has
commenced.’” Id. at p. 26, 886 So.2d at 1104. “Inverse condemnation claims
derive from the Takings Clauses contained in both the Fifth Amendment of the
U.S. Constitution and Art. I, § 4 of the Louisiana Constitution.” Id. The Avenal
Court reaffirmed the three-pronged analysis the Supreme Court formulated in
Chambers to determine whether a claimant is entitled to just compensation under
the eminent domain provisions of Article I, § 4. These prongs include: (1) whether
a recognized species of property right has been affected; (2) whether that property
has been taken or damaged in a constitutional sense; and (3) whether the taking or
damaging was for a public purpose under Article I, § 4 of the Louisiana
6 Constitution. Id. at pp. 26-27, 886 So.2d at 1104 (citing State, Through Dep’t of
Transp. and Dev., 595 So.2d at 603).
However, the Avenal Court determined that, in the matter under review by
that Court, it was unnecessary to conduct a full Chambers analysis. This is because
the main issue in Avenal was prescription—the central issue in the instant case.
The Supreme Court observed that the relevant consideration was whether the
plaintiff’s property was “taken” for a public purpose or whether it was “damaged”
for a public purpose. The Avenal Court explained that the distinction between a
taking and a damaging was relevant because of the differing prescriptive periods
for actions arising out of those two causes of action, as enunciated in La. R.S.
13:5111 and La. R.S. 9:5624. “Section 5111 of Title 13 is entitled ‘Appropriation
of property by state, parish, municipality or agencies thereof; attorney, engineering
and appraisal fees; prescription’ and provides in pertinent part: “[A] proceeding
brought against the state of Louisiana . . . or other political subdivision . . . for
compensation for the taking of property by the defendant, other than through an
expropriation proceeding . . . shall prescribe three years from the date of such
taking.” Id. at pp. 27-28, 886 So.2d at 1104. “Section 5624 of Title 9 provides:
‘When private property is damaged for public purposes any and all actions for such
damages are prescribed by the prescription of two years, which shall begin to run
after the completion and acceptance of the public works.’” Id. at p. 28, 886 So.2d
at 1104-05. “Thus, although the Louisiana Constitution provides that just
compensation shall be paid when property is taken or damaged, La. R.S.
7 13:5111 provides a three-year prescriptive period for takings and La. R.S.
9:5624 provides a two-year prescriptive period for damage.” Id. at p. 28, 886
So.2d at 1105 (emphasis in original).
Turning to the case sub judice, Mr. Poydras claimed legal property rights to
his bar, its adjacent parking lot and the future profit derived from the bar. He
specifically alleged that because of the Project he was unable to operate his
business for several years, and this forced closure constituted a taking or inverse
condemnation of his property. Mr. Poydras further claimed that the City trespassed
on his property and took over physical use and possession of his parking lot
without his permission or compensation, causing damages and rendering it
unusable by his patrons. Mr. Poydras alleged that the damage to his bar, the
parking lot and the non-operation of his bar was the direct result of the Project.
Additionally, he alleged that the Project was in furtherance of a public purpose to
repair the drainage system and the streets, and since the Project damaged his
property and the profits derived therefrom, the City was required to compensate
him for said damages. We note, however, that in his brief to this Court, Mr.
Poydras fails to offer any viable argument to the City’s prescription exception on
the inverse condemnation. To the contrary, he concedes that La. R.S. 13:5111
“applies specifically to takings by a governmental entity, as is the case here,” but
argues that it would not bar all of his causes of actions.
Based on our de novo review and accepting the allegations in Mr. Poydras’
petition as true, Mr. Poydras alleges an inverse condemnation and taking of his bar
8 and parking lot for a public purpose without just compensation. Accordingly, the
three-year prescriptive provision in La. R.S. 13:5111, governing such takings, is
applicable to these claims. Because the taking of his property commenced on
October 1, 2020, Mr. Poydras had until October 1, 2023, to institute an action
against the City. Mr. Poydras filed his petition on May 22, 2024; therefore, this
claim is prescribed. This argument is unpersuasive.
Failure to apply La. R.S. 9:5624
Next, Mr. Poydras asserts that even if the inverse condemnation or takings
claim has prescribed under La. R.S. 13:5111, he should still be granted relief under
La. R.S. 9:5624. To support this assertion, Mr. Poydras cites Avenal v. State,
supra, for the proposition that an action brought for damage to his property is one
that is separate from a takings action. In response, the City protests that only now,
before this Court, Mr. Poydras has for the first time raised that the prescriptive
period found in La. R.S. 9:5624 is applicable to his claims for physical damage to
his property. The City cites Uniform Rules—Courts of Appeal, Rule 1-3, which
provides, in pertinent part, that “[t]he Courts of Appeal will review only issues
which were submitted to the trial court.” We find this assertion to be in error.
Based upon our review of the record, the City’s memorandum in support of
its exception of prescription only addresses prescription as it pertains to inverse
condemnation. However, it is quite clear from Mr. Poydras’ petition that he made
claims for both an unconstitutional taking of his property without just
9 compensation—i.e., inverse condemnation—and physical damage to his building
and parking lot.6
At the hearing on the exception of prescription, the district court recognized
the distinction between Mr. Poydras’ inverse condemnation claim and his claim for
a continuing trespass but failed to address his claims for physical damage to his
property because the exception was not specifically plead as to those claims. This
Court has previously explained that, “although the peremptory exception of
prescription may be heard for the first time by the appellate court, it must be
presented in a formal pleading and cannot be injected as an issue in the case by
brief or oral argument.” Lilly, Inc. v. Argus Tech. Sys., Inc., 538 So.2d 717, 721
(La. App. 4 Cir. 1989) (first citing La. C.C.P. art. 2163;7 then citing Bergeron v.
6 For example, in paragraphs 16 and 17 of his petition for damages, Mr. Poydras alleges:
16. These acts of trespass causing damage constituted an actual taking of the private property of plaintiff by the City of New Orleans for a public purpose without compensation.
17. The construction work engaged in by Defendants did in fact cause physical damage to the Broadway Bar building in the course of its repairs to the road and sidewalk causing cracks to appear in the building foundation and brickwork facade and interior.
Mr. Poydras also made a claim for a continuing trespass, which will be addressed below. 7 Louisiana Code of Civil Procedure article 2163 provides:
A. The appellate court may consider a peremptory exception filed for the first time in that court if the exception is pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears of record.
B. If the ground for the peremptory exception pleaded in the appellate court is prescription or peremption, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.
10 Houma Hosp. Corp., 514 So.2d 1192 (La. App. 1st Cir. 1987), writ denied 517
So.2d 812 (La. 1988)).
However, as it is reflected in the record before this Court, the City did not
present a formal pleading or even attempt to inject into its appellate brief or at oral
argument that Mr. Poydras’ damage claims were prescribed. In fact, following
counsel for the City’s argument on the exception, this colloquy between the district
court and counsel for the City occurred:
THE COURT: And that’s to the inverse condemnation action, correct?
COUNSEL: Yes, your Honor.
THE COURT: There’s also a trespass action – continuing trespass action.
COUNSEL: As I read the petition, Your Honor, I only found one cause of action against the City for an inverse condemnation. Because you have the City as the actor[,] it’s my understanding that inverse condemnation would be the appropriate action – was the action alleged, and the applicable prescription period would be [La. R.S.] 13:5111 since the City was the taker.
“It is a settled matter of law that Louisiana is a fact-pleading state.” Green
at p. 8, 2025 WL 1711294, at *5 (alteration in original) (quoting Bergeron v.
Bergeron, 23-0161, p. 3 (La. App. 4 Cir. 11/16/23), 377 So.3d 817, 819).
“Louisiana’s Code of Civil Procedure establishes a system of fact pleading.” Id. at
p. 9, 2025 WL 1711294, at *5; see also Martin v. Thomas, 21-01490, p. 6 (La.
6/29/22), 346 So.3d 238, 242. “So long as the facts constituting a cause of action
are alleged, the party may be granted any relief to which he is entitled under the
pleadings and the evidence; the ‘theory of the case’ doctrine, under which a party
11 must select a theory of his case or defense and adhere to it throughout the
litigation, has been abolished.” Id. “This allows a plaintiff to recover under
whatever legal theory is appropriate based on the facts pleaded.” Id. As previously
stated elsewhere in this opinion, the Supreme Court made clear in Avenal that “[a]
distinction between a taking and a damaging is necessary because of the existence
of two relevant prescription statutes, La. R.S. 13:5111 and La. R.S. 9:5624.” 03-
3521, p. 27 (La. 10/19/04), 886 So.2d 1085, 1104. Whether Mr. Poydras’ property
damage claims are actionable under La. R.S. 9:5624 or any other prescriptive
period was not addressed by the district court and are not properly before this
Court. (See, e.g., Holmes v. City of New Orleans, where this Court discussed the
question of whether a plaintiff’s property damage claim stemming from a public
works project was subject to the prescriptive period found in La. R.S. 9:5624 or in
La. C.C. arts. 3492 and 3493,8 finding that it hinged on whether the damage was
incurred for a public purpose. 24-0047, pp. 5-7 (La. App. 4 Cir. 7/16/24), 401
8 The statutes in effect at all times relevant to this case provided:
La. C.C. art. 3492. Delictual actions
Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained . . . .
La. C.C. art. 3493. Damage to immovable property; commencement and accrual of prescription
When damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.
Those statutes were repealed by Acts 2024, No. 423, and were recodified as La C.C. arts. 3493.1 and 3493.2, with an effective date of July 1, 2024, and now provide for a two-year prescriptive period for delictual actions.
12 So.3d 731, 735-37). As such, the district court was in error to dismiss all of Mr.
Poydras’ claims with prejudice. This argument has merit.
The District Court erred in failing to apply the Continuing Tort Doctrine
We now turn to Mr. Poydras’ final argument. Mr. Poydras contends that the
continuing tort doctrine should apply to this case, which would prolong the
prescriptive period. In response, the City argues that the appropriation of land or
taking of property is not a tort. To support this argument the City cites Crooks v.
Dep’t of Nat. Res., 19-0160 (La. 1/29/20), 340 So.3d 574. In Crooks, the plaintiffs,
who were landowners, brought a claim for inverse condemnation against the
Louisiana Department of Natural Resources. Both the lower and intermediate
courts held that the plaintiffs’ claims had not prescribed under La. R.S. 13:5111 by
applying the continuing tort doctrine as utilized by the appellate court in Cooper v.
La. Dep’t of Pub. Works, 03-1074 (La. App. 3 Cir. 3/3/04), 870 So.2d 315. The
Louisiana Supreme Court disagreed. The Supreme Court espoused that “by
applying tort doctrine to an appropriation claim . . . the Cooper majority ignored
the court’s own longstanding precedent that ‘[t]he taking of property, by flooding
or otherwise, without proper exercise of eminent domain, is not a tort but is
considered an appropriation.’” Crooks, 19-0160, p. 13, 340 So.3d at 583 (quoting
Hawthorne v. Louisiana Dept. of Public Works, 540 So.2d 1261, 1262 (La. App. 3
Cir. 1989)) (emphasis in original). The Crooks Court concluded that, consistent
with La. R.S. 13:5111, “prescription begins to run when the claimant is aware of
13 the facts that give rise to a cause of action.” Id. 19-0160, p. 15, 340 So.3d at 584
(citing Hawthorne, 540 So.2d at 1264).
Similar to the plaintiffs in Crooks, Mr. Poydras seeks compensation for the
taking of his property. Applying the holding in Crooks to the facts of this case, we
find that since the dispute is between Mr. Poydras and the City as the “taker” of the
land used for the Project, Mr. Poydras’ claim for compensation is governed by the
prescriptive period in La. R.S. 13:5111. Furthermore, Mr. Poydras’ “application of
the continuing tort doctrine to this case, as opposed to La. R.S. 13:5111,
contravenes the general rule under Louisiana law ‘that when conflicting statutes
are applicable, the one more specifically directed to the matter applies.’” Crooks,
19-0160, p. 14, 340 So.3d at 584 (quoting Avenal, 03-3521, p. 33, 886 So.2d 1085,
1108 n.29).
In sum, review of the record indicates that Mr. Poydras became aware of the
City’s construction no later than November of 2020, but he filed the petition on
May, 22, 2024, more than three years from the date he became aware of the facts
which gave rise to this suit. Therefore, we find that the continuing tort doctrine
does not apply to Mr. Poydras’ claim for inverse condemnation and his claim has
prescribed pursuant to La. R.S. 13:5111. This argument is unpersuasive.
CONCLUSION
For the foregoing reasons and upon our de novo review, we affirm that
portion of the judgment that granted the exception of prescription as to Mr.
Poydras’ inverse condemnation and trespass claims, vacate that portion of the
14 judgment that dismissed Mr. Poydras’ property damage claims, and remand the
AFFIRMED IN PART; VACATED IN PART; REMANDED