South Fork Holdings, LLC and Delta Land Services, LLC v. Cameron Parish Gravity Drainage District No. 8 and Travelers Indemnity Company

• Court: Louisiana Court of Appeal
• Decided: November 23, 2022
• Docket: CA-0022-0058
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

22-58

SOUTH FORK HOLDINGS, LLC AND DELTA LAND SERVICES, LLC

VERSUS

CAMERON PARISH GRAVITY DRAINAGE DISTRICT NO. 8 AND TRAVELERS INDEMNITY COMPANY

**********

APPEAL FROM THE THIRTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF CAMERON, NO. 10-20169 HONORABLE H. WARD FONTENOT, DISTRICT JUDGE AD HOC

ELIZABETH A. PICKETT JUDGE

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Candyce G. Perret, Judges.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

J. Michael Veron Peyton F. Pawlicki Veron, Bice, Palermo & Wilson, LLC P. O. Box 2125 Lake Charles, LA 70602-2125 (337) 310-1600 COUNSEL FOR PLAINTIFFS-APPELLANTS: South Fork Holdings, LLC Delta Land Services, LLC James L. Pate Cliff A. LaCour NeunerPate 1001 West Pinhook Road, Suite 200 Lafayette, LA 70503 (337) 237-7000 COUNSEL FOR DEFENDANT-APPELLEE: Cameron Parish Gravity Drainage District No. 8

Gregory A. Grefer G. Dwayne Maricle Maricle & Associates #1 Sanctuary Blvd, Suite 202 Mandeville, LA 70471 (985) 727-5021 COUNSEL FOR DEFENDANT-APPELLEE Travelers Indemnity Company PICKETT, Judge.

South Fork Holdings, LLC (South Fork) and Delta Land Services, LLC (Delta

Land) appeal the trial court’s decision granting the motion for summary judgment

filed by Cameron Parish Gravity Drainage District Number 8 (GDD8) and its

insurer, Travelers Indemnity Company (Travelers), and denying the motion for

summary judgment filed by South Fork and Delta Land.

FACTS

South Fork owns a 945-acre tract of land in Cameron Parish. Delta Land,

South Fork’s parent company, manages the land. The land is part of a wetland

mitigation program, which was necessitated because SASOL built a major facility

on wetlands in Cameron Parish. As part of the project, Delta Land filled two

drainage laterals, Lateral 8 and Lateral 10, on the property.

After the two laterals were filled, Cal-Cam Line Road flooded on several

occasions. GDD8 determined that in order to mitigate flooding, one of the laterals,

Lateral 8, on South Fork’s property needed to be dredged. GDD8 claims that Lateral

8 was subject to a legal servitude pursuant to La.R.S. 38:113, which states:

The various levee and drainage districts shall have control over all public drainage channels or outfall canals within the limits of their districts which are selected by the district, and for a space of one hundred feet on both sides of the banks of such channels or outfall canals, and one hundred feet continuing outward from the mouth of such channels or outfall canals, whether the drainage channels or outfall canals have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels or outfall canals, and may adopt rules and regulations for preserving the efficiency of the drainage channels or outfall canals.

GDD8 held public hearings and gave notice to South Fork and Delta Land that it

intended to dredge Lateral 8. Representatives from the companies did not attend the

public meetings, but they sent letters indicating that the land was subject to a wetland

mitigation program which was approved by the United States Army Corps of Engineers (USACE) and subject to a conservation servitude. South Fork and Delta

Land requested that GDD8 get wetlands and coastal use permits and approval from

the USACE to dredge Lateral 8. GDD8 refused, claiming that permits were not

needed since it already had a drainage servitude which allowed it to improve the

drainage channels. GDD8 did request guidance from South Fork and Delta Lands

about what to do with the material dredged from the ditch, but they were given no

guidance.

After GDD8 completed the work, the USACE notified South Fork and Delta

Land that the alterations, particularly the fill removed from Lateral 8, jeopardized its

permits and would have to be removed. Failure to remove the fill would make South

Fork and Delta Land liable to the permit holder, SASOL.

South Fork and Delta Land sued GDD8 and its insurer, Travelers, alleging

trespass. They sought an injunction preventing GDD8 from entering the land to do

future work on the property. South Fork and Delta Land also sought damages for

bad faith trespass, repair of damages, inverse condemnation, and attorney fees.

GDD8 filed a motion for summary judgment, seeking dismissal of the claims

for trespass and for costs and attorney fees. Travelers filed a separate motion for

summary judgment adopting GDD8’s arguments as their own. GDD8 filed a second

motion for summary judgment seeking dismissal of the inverse condemnation

claims. Again, Travelers filed a separate motion for summary judgment on the same

grounds. South Fork and Delta Land filed a motion for partial summary judgment,

seeking a finding that GDD8 trespassed on their land, that their actions constituted

inverse condemnation, and that Travelers was liable as the insurer of GDD8. They

also sought injunctive relief and costs and attorney fees. South Fork and Delta Land

objected to certain evidence attached to their adversaries’ motions.

2 The trial court heard the motions for summary judgment on January 13, 2021.

The trial court allowed the parties to proffer all the evidence attached to their

motions, subject to the objections raised in their briefs. GDD8 and Travelers had no

objections to the evidence attached to South Fork and Delta Land’s motion for partial

summary judgment. South Fork and Delta Land raised objections previously made

in their opposition to summary judgment to certain items of evidence supporting

GDD8’s motions for summary judgment. After considering all of the evidence and

without ruling on any of the objections to the evidence raised by South Fork and

Delta Land, the trial court granted the motion for summary judgment filed by GDD8

and Travelers and denied the motion for summary judgment filed by South Fork and

Delta Land. The trial court awarded attorney fees to GDD8 in accordance with

La.R.S. 38:215.1(B), reserving the quantum of those fees for a later proceeding.

South Fork and Delta Land appeal.

ASSIGNMENTS OF ERROR

South Fork and Delta Land assert two assignments of error:

1.The trial court erred in denying the plaintiffs’ motion for partial summary judgment.

2. The trial court erred in granting the defendants’ motions for summary judgment.

DISCUSSION

Standard of Review

This court reviews summary judgments de novo. Schroeder v. Bd. of

Supervisors of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). “The summary

judgment procedure is designed to secure the just, speedy, and inexpensive

determination of every action[.]” La.Code Civ.P. art. 966(A)(2). Summary

judgment is favored and must be construed to accomplish this purpose. Id. If the

parties have had the opportunity to conduct “adequate discovery” and the evidence 3 shows “there is no genuine issue as to material fact and that the mover is entitled to

judgment as a matter of law[,]” summary judgment should be granted. La.Code

Civ.P. art. 966(A)(3).

The party moving for summary judgment has the burden of proof. La.Code

Civ.P. art. 966(D)(1). When the adverse party will have the burden of proof at trial,

the mover must show that an essential element to the adverse party’s claim is lacking.

Id. The adverse party must then “produce factual support sufficient to establish”

that a genuine issue of material facts exists or “that the mover is not entitled to

judgment as a matter of law.” Id. The allegations or denials in the adverse party’s

pleading will not defeat the motion. La.Code Civ.P. art. 967(B).

The key issue in this case is whether GDD8 established that it had acquired a

drainage servitude as contemplated by La.R.S. 38:113. This statute grants to a

drainage board a legal servitude over drainage channels within its district. The

drainage board must meet certain prerequisites to take advantage of the servitude.

See Terrebonne Par. Police Jury v. Matherne, 394 So.2d 1302, 1304 (La.App. 1

Cir.), aff’d and amended, 405 So.2d 314 (La.1981), cert. denied, 456 U.S. 972, 102

S.Ct. 2234.

First, the drainage channel must have been either previously improved by the drainage district or adopted without prior improvement as a necessary part of or extension to improved drainage channels. Second, the drainage channel must be a public channel.

Whipp v. Bayou Plaquemine Brule Drainage Bd., 476 So.2d 1042, 1044 (La.App. 3

Cir. 1985).1

To satisfy the first element of this two-part inquiry, the drainage district must

show that it improved the drainage channel. Id. Alternatively, the drainage district

1 A third requirement enunciated in Whipp, approval by the state Office of Public Works, was abrogated by amendment to La.R.S. 38:113. 1991 La. Acts No. 309, § 2. 4 can show that it adopted a previously existing drainage channel as a necessary part

of a drainage channel it has already improved and that it has acquired a right of way

over the previously existing drainage channel either by expropriation or by purchase.

Id. (citing Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 317

(La.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234 (1982)).

To determine if the water channel in question is a public drainage channel as

required by the second part of this test, a court must make a finding

“that the channel has been used for the purpose of drainage for many years and that

this drainage protects the interests of the public in general rather than the interests

of particular individuals.” Whipp, 476 So.2d at 1046 (citing Dugas v. St. Martin

Par. Police Jury, 351 So.2d 271 (La.App. 3 Cir.1977), writ denied, 353 So.2d 1046

(La.1978)).

“The trial court, and this court on de novo review, may only consider evidence

that is admissible under the express provisions of La.Code Civ.P. arts. 966-67.”

Dowdle v. State Through Dep’t of Culture, Recreation, & Tourism, 18-878, p. 5

(La.App. 3 Cir. 5/15/19), 272 So.3d 77, 81-82.

The evidence in the record before us shows that GDD8 obtained a right of

way from a previous owner of this tract of land, Amoco Corporation, on July 26,

1994, that expired on July 31, 1996. The stated consideration for the right of way

was the benefits to the property as a result of the drainage improvement program

undertaken by GDD8. Records of the work performed include contracts to dredge

Laterals 8 and 10, and GDD8 accepted the work performed at a public meeting on

January 8, 1997. To successfully prevail in its motions for summary judgment,

though, GDD8 must also show that it maintained Lateral 8 for “many years” and that

the drainage serves a public purpose.

5 The only evidence of maintenance of Lateral 8 for many years are the

affidavits of Randy Thomas, a project coordinator for Cameron Parish, and Don

Hohensee, president of Golden Ranch Aviation, Inc. Mr. Thomas states that he

oversaw a project to chemically spray certain drainage laterals in Cameron Parish,

in 2003. His affidavit further states that Laterals 8 and 10 were included in the

project and that he personally inspected the laterals to see that they had been properly

and effectively sprayed. Mr. Hohensee’s affidavit states that he operated the

helicopter that performed the spraying of Laterals 8 and 10 in 2003. This is the only

evidence of maintenance of the laterals from 1997 until South Fork purchased the

property in 2012. Furthermore, there is no evidence that GDD8 did any work on

Laterals 8 or 10 after South Fork purchased the property until it undertook the work

at issue in this suit on September 15, 2017.

We also find there is conflicting evidence that creates a genuine issue of

material fact concerning the extent to which the drainage accomplished by Laterals

8 and 10 effects a public purpose. Jake McCain, who testified on behalf of GDD8

at the Section 1442 deposition of GDD8, admitted that the drainage district did no

engineering studies to determine if clearing Lateral 8 would improve drainage at

Cal-Cam Line Road. There is evidence about the drainage of the property in 1996,

including hydrology maps. These maps, though, do not take into account changes

made after Delta Land undertook the wetlands mitigation program and altered the

topography of the area. We find genuine issues of material fact exists regarding both

the maintenance of Lateral 8 for many years and the drainage for a public purpose

requirement, which makes summary judgment inappropriate for either party in this

case.

Finally, we note that the trial court considered a Google map to determine that

the property in question adjacent to Lateral 8 was above 5 feet mean sea level, and 6 therefore, not subject to Coastal Use Permit Regulations. We find that Google Maps

is not competent authority, as it is not self-authenticating nor has it been properly

authenticated by testimony. The trial court erred in considering that evidence to

support its finding that a Coastal Use Permit was not required. On remand, then, the

parties must prove whether or not the property is subject to those requirements.

CONCLUSION

The judgment of the trial court granting the motions for summary judgment

filed by GDD8 and Travelers is reversed. We also reverse the finding of the trial

court that GDD8 is entitled to attorney fees. The judgment of the trial court denying

the motion for partial summary judgment filed by South Fork and Delta Land is

affirmed. The case is remanded to the trial court for further proceedings. Costs of

this appeal in the amount of $10,896.85 are assessed against Cameron Parish Gravity

Drainage District No. 8 and Travelers Indemnity.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2-16.3.