Walker v. AMID/Metro Partnership, LLC

109 So. 3d 35, 2012 La.App. 4 Cir. 0285, 2013 WL 174987, 2013 La. App. LEXIS 64
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2013
DocketNo. 2012-CA-0285
StatusPublished
Cited by4 cases

This text of 109 So. 3d 35 (Walker v. AMID/Metro Partnership, LLC) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. AMID/Metro Partnership, LLC, 109 So. 3d 35, 2012 La.App. 4 Cir. 0285, 2013 WL 174987, 2013 La. App. LEXIS 64 (La. Ct. App. 2013).

Opinion

DANIEL L. DYSART, Judge.

Plaintiffs are representatives of a proposed class of persons who filed suit on November 14, 2007, against defendants AMID/Metro Partnership, LLC, the City of New Orleans, Metro Disposal, Inc., AMID Landfill, LLC, Durr Heavy Construction, LLC, Metroplex-Core, Inc., the Gray Insurance Company, and MWH Americas, Inc. (hereinafter referred to collectively as “the City and private defendants.”) Plaintiffs are persons and/or entities who own property in the Almonaster Michoud Business and Industrial District (“AMID”). The land in question is comr prised of city lots in four undeveloped, unimproved subdivisions which exist on paper only. These lots are separated from Almonaster Boulevard by approximately [38]*381000 feet of vegetation and marsh. Evidence of ownership exists on the tax records for Orleans Parish.

Plaintiffs filed a motion to have the class certified and to appoint counsel. The subject of this appeal is the judgment granting the class certification. For the following reasons, we amend the class certification and affirm the judgment of the trial court as amended.

Additionally, the private defendants filed an Exception of Prescription in this Court. After review, we deny the exception.

FACTUAL BACKGROUND:

The landfill made the basis of this lawsuit is located in the eastern part of New Orleans, and is commonly referred to as the Old Gentilly Landfill. The tract of land is approximately 200 acres, and has been operated as a landfill by the City of New Orleans (“the City”) since 1964. Originally, the waste dumped at the landfill was comprised mostly of municipal garbage. Plaintiffs allege that this dump was never properly permitted and had no clear boundaries.

In 2002, the City and private defendants submitted a permit application to the Louisiana Department of Environmental Quality (“the LDEQ”) to begin operating the landfill as a Type III landfill, allowing the dumping of construction/demolition debris and wood waste, commonly referred to in the industry as C & D waste. According to defendants, the LDEQ published public notices inviting public comment on the issuance of the permit. It received no requests for public hearing and subsequently issued the permit on December 28, 2004. The Old Gentilly Landfill was scheduled to begin receiving C & D waste in September of 2005. Plaintiffs allege that the “new” landfill was situated on a clay cap that was placed on top of the old landfill. They assert that originally a small portion of the landfill site was owned by the City, but as the landfill grew with debris, the majority of the landfill site was property owned by plaintiffs.

On August 29, 2005, Hurricane Katrina struck the greater New Orleans area. The LDEQ reported to the federal government that 62 million cubic yards of debris, millions of drums and containers of unknown origin and content, 350,000 flooded and/or abandoned vehicles, over 60,000 flooded, damaged and/or abandoned vessels (presumably maritime vessels), over one million units of white goods, over 956,-000 units of electric goods, and 140,000 to 160,000 flooded homes, were left in the wake of the hurricane and subsequent flooding. The Old Gentilly Landfill began receiving Hurricane Katrina debris in October 2005.

Plaintiffs admit that periodic dumping took place on their property over the years, but also maintain that they continued to be billed for and to pay taxes on the property. Plaintiffs became aware of the C & D dumping after Hurricane Katrina.

Plaintiffs allege that the City and private defendants took control of their property in September 2005, and began dumping “massive amounts” of debris without notifying or seeking permission from the property owners or providing compensation for the use of their land.

The plaintiffs seek due process and full compensation by alleging claims for inverse condemnation, trespass, negligence and, reimbursement of products consumed.

The trial court originally defined the class as follows:

All individuals and entities who presently own, or in the period January 1, 2005 to the present have owned, an interest in immovable property of which all or any portion falls within the boundaries of the [39]*39Gentilly Type |4III Landfill, permitted under Standard Permit No. P0375.
Excluded from the class are: All defendants and any entities owned or controlled by any defendant.

The defendants moved for a new trial or reconsideration of the class certification definition, arguing that the definition of the class must be expanded because the trial court found that at least some kind of taking associated with dumping near the Gentilly site had occurred beginning in 1966. The trial court granted the motion and redefined the class as follows:

All individuals or entities who presently own, or in the period of January 1, 1966 to the present, have owned an interest in immovable property of which all or any portion falls within the boundaries of the Gentilly Type III Landfill, permitted under Standard Permit Number P0375.

Initially, the private defendants argue that plaintiffs’ claims have prescribed. They have filed an Exception of Prescription in this Court. As to the merits of the case, the City and private defendants appeal the certification arguing that individual issues affecting ownership rights preclude certification. The City also argues that it has always maintained exclusive possession, control, management and operation of the Old Gentilly Landfill since 1964.

EXCEPTION OF PRESCRIPTION:

The private defendants have filed a Peremptory Exception of Prescription in this Court. They argue that plaintiffs’ claims are barred by La. R.S. 13:5111, three-year liberative prescription, or, alternatively, thirty-year acquisitive prescription.

A. Standard of Review:

The effect of maintaining a peremptory exception is to dismiss the action. La.Code Civ. Proc. art. 923. The exception of prescription may be raised at any point in the proceeding, including on appeal, prior to a final judgment. La.Code Civ. Proc. art. 2163; Cameron v. Delta Plumbing, 07-0672 (La.App. 4 Cir. 2/13/08), 976 So.2d 343, 346. The party raising the exception bears the burden of proof; however, when prescription is evident on the face of the pleadings, the plaintiff bears the burden of proving that the case has not prescribed. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.1992).

The private defendants argue that because the trial court made the factual finding that the City’s use of the landfill amounted to a taking for a necessary, public use by at least 1966, these factual findings preclude plaintiffs from seeking compensation because more than three years have elapsed since the taking.

Louisiana Revised Statute 13:5111 provides, in part:

In a proceeding brought against the State of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding ... actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.

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109 So. 3d 35, 2012 La.App. 4 Cir. 0285, 2013 WL 174987, 2013 La. App. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-amidmetro-partnership-llc-lactapp-2013.