Greg Mitchell, Clodine M. Gordon, Linda Brown, Bertha Oxly, Janice Bell, David Allen, Michael Allen, Wardell Allen, Willie Allen, Martha Anderson, Toettig L. Armstrong, Auron Banks, Cynthia Banks, David Banks, Elizabeth Banks, Jack Monroe Banks, et al. VS East Baton Rouge Parish

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUI SIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1076 GREG MITCHELL CLODINE M GORDON LINDA BROWN BERTHA OXLY JANICE BELL ET AL VERSUS EAST BATON ROUGE PARISH ET AL v l Judgment dUC 7 6 201d Rendered APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT 1N AND FOR THE PARISH OF EAST BATON ROUGE DOCKET NUMBER 432 DIVISION M SECTION 26 169 STATE OF LOUISIANA THE HONORABLE KAY BATES JUDGE Patrick W Attorneys for Plaintiffs Appellees Pendley Allen J Myles Plaquemine Louisiana Greg Mitchell et al Thomas D Gildersleeve Attorneys for Defendants Appellants Gerald L Walter Jr City of Baton Rouge East Baton Rouge Baton Rouge Louisiana v n Cr l Parish of z uN C ti s u c scl ti in Pf1ti T ic f n1 s f rl t7 5F i nJ s c h BEFORE CARTER C PARRO KURN GUIDRY J AND McDONALD JJ co c G d O O i 2 l L f AS Qd McDONALD T The City of Baton Rouge of East Baton Rouge appeals a judgment Parish from the Nineteenth Judicial District Court awarding damages to residents living near the North Wastewater Treatment Facility In October 1996 a petition for damages was filed by Greg Mitchell et al against East Baton Rouge Parish naming approximately 360 plaintiffs and alleging that the operation and maintenance of the waste treatment faciliry caused petitioners personal inconvenience mental suffering embarrassment and personal injuries Plaintiffs also alleged a grave threat to health and safety by exposure to contaminated air and increased risk of serious diseases to themselves their family and their progeny A supplemental pleading filed May 17 1997 added claims for damages for permanent injury to land and decrease in the market value of property among other named damages to plaintiffs and those similarly situated A later amending petition named additional plaintiffs and sought relocation costs Plaintiffs testimony in the trial of this matter was heard on November 28 29 and 30 2000 December 4 5 6 7 8 11 and 12 2000 May 7 and 8 2000 and August 24 2001 at the conclusion of which the trial court issued written reasons forjudgment finding he T testimony given by the 148 petitioners who appeared in court has been carefully reviewed and taken into consideration It is apparent to this Court that many of the plaintiffs gave conflicting testimony or testified that ihe expansion produced little or no change in the prior circumstances The Court finds in light of this testimony and other evidence presented that most of the plaintiffs have failed to esCablish that the action taken by the City in so far as expansion of the Parish treatment plant has caused them to be subjected to odors or problems that they were not subjected to before the expansion took place The expert testimony further substantiates the Court conclusion s that these plaintiffs have not proven by a preponderance of the evidence that they have suffered any legal damage caused by the sewer treatment plant at issue Dr Robert Flournoy admitted that it was hard to have a sewer treatment plant without an odor And Mr Kermit Williams testified that stigma damage due to the location of the 2 plaintiffs properties may have been present when the plaintiffs moved into or built their homes as the treatment plant was already consiructed The reasons also indicated that 209 plaintiffs were to be dismissed for failure to appear at trial The court further noted dismissal of 38 plaintiffs because they were renters who knew or should have known that a waste treatment facility was situated in close proximity to the apartments they chose to rent and that problems such as odor could be associated with this type of plant Also finding that some plaintiffs resided on streets too far removed from the treatment plant for an award of damages to be appropriate nine plaintiffs on Avenue L eleven plaintiffs on Avenue K seven plaintiffs on Avenue J and nine plaintiffs even further removed were to be dismissed residing on Avenue M The trial court also found that certain named plaintiffs and Avenue L had a valid claim for damages In concluding the trial court ordered the defendants to put on their case in chief The defendants presented their case on April 26 27 and 28 2005 Written reasons for judgment were issued January 0 200 and judgment was rendered 7 and signed on January 18 2007 Both the plaintiffs and the defendants filed motions for new trial which were granted After a hearing on the motions judgment was rendered on November 7 2008 This judgment dismissed 209 plaintiffs for failure to appear at trial and offer any evidence in support of their respective claims two plaintiffs were dismissed because they were not named plaintiffs Monetary damages were awarded to nineteen plaintiffs for stigma damage to their residences The judgment also added back as plaintiffs those who had been dismissed because they had no property interests and awarded damages for discomfort and inconvenience of one hundred dollars per month for a period of twenry months the entire year of 1995 and nine the seventeen months in 1997 and 1998 that the treatment plant expansion was being constructed to approximately 125 plaintiffs and fifty dollars a month for 3 nine twenty months to approximately 34 plaintiffs The plaintiffs living on Avenue M and Avenue L who were awarded stigma damages were also awarded attorney fees of thirty and one percent of the amount of the damages three third awarded All damages awarded included legal interest from the date of judicial demand until paid and the defendants were cast for all costs It is this judgment that is before us on appeal The defendants raise three assignments of error 1 the trial court erred because plaintiffs claims are prescribed in their entirery pursuant to La R 9 2 the trial court erred in S 5624 awarding damages arising out of the 1997 expansion and 3 the trial court erred in calculating the amount of damages in various particulars The law governing the prescriptive period in this matter is La R S 9 5624 which provides When private property is damaged far public purposes any and all actions for such damages are prescribed by the prescription of two years which sha11 begin to run after the completion and acceptance of the public works The subject waste treatment plant began operation in 1960 and was expanded several times The last expansion was begun in 1997 and completed in 1998 The trial court correctly noted that La R S 9 does not support the continuing tort 5624 doctrine However the court found that the latest expansion of the sewerage plant must be viewed as a new public work event for purposes of La R S 9 5624 stating After all it would neither be equitable nor just to hold parties responsible for filing a suit within two years of the plant original complerion date i e 1960 s when their property was not damaged until the plant was expanded in 1998 We agree that any damages attributable to the plant expansion had not prescribed when suit was filed and that the plant expansion should be considered a new public work for purposes of La R 9 S 5624 Since suit was filed in 1996 any damages attributable to the expansion had not even accrued 4 We note that appellate review of this matter is conducted under the manifest clearly error wrong standard for factual issues and mixed questions of law and fact Brasseaux v Town of Mamou 99 La 1 752 So 2d 815 Appellate 1584 00 19 review of questions of law is simply to discern whether the trial court interpretive s decision is legally correct If legal error is found an appellate court is to make a de novo review Hogan v Morgan 06 La App l Cir 4 960 So 0808 07 26 2d 1024 1027 writ denied 07 La 9963 So 1000 1122 07 14 2d The trial court awarded damages in this case far diminution of property value and for discomfort and inconvenience Under Article l Section 4 of the Louisiana Constitution of 1974 property 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 The Louisiana Supreme Court has addressed the issue of this damage outside an expropriation proceeding an inverse condemnation noting that D the legislative failure to provide a procedure espite to seek redress when property is damaged or taken without the proper exercise of eminent domain this Court has held that a cause of action must arise out of the executing self nature of the constitutional command to pay just compensation Constance v State througl DOTD 626 So 1151 1156 2d La 1993 cert denied 512 U 1219 114 S 2706 129 L834 1994 S Ct 2d Ed The supreme court has also provided guidelines for determining when such damages have occurred In Constance the Louisiana Supreme Court held that plaintiffs must prove five elements in an inverse condemnation case 1 that property rights are at issue 2 that the act alleged to have caused damage was undertaken for public purposes 3 that the acts of the government violate Civil Code artictes 667 through 669 4 that the government has engaged in excessive or 2 The City did not institute expropriation proceedings in this matter Parish The physical site of the plaintifPs homes vas not required for the expansion However an offer was made to buy the homes of persons living on Ave M and Ave L that would be affected by the expansion Many persons accepted the s City offer their homes were purchased and they were assisted in relocating 5 abusive conduct and 5 that their property has either been physically damaged or has suffered special damage peculiar to the particular property Arnold v Town ofBall 94 La App 3 Cir 2 651 So 2d 313 318 972 rd 95 1 The supreme court in Constance also noted that a our state lthough constitution recognizes that every person has the right to acquire use and dispose of private property this right is subject to reasonable statutory restrictions and the reasonable exercise of police power Constance 626 So at 1155 2d In fact general public interest takes precedence over that of individuals and any individual must yield any particular property to the community should it become necessary far the general use Id A landowner right of ownership is also limited s by Civil Code articles 667 and 668 which require that he tolerate some inconvenience from the lawful use of a neighbor sland Id The Louisiana Supreme Court has further provided an excellent discussion of the principles and history of eminent domain that should assist courts in a just determination of when property rights have been damaged by a political body such that compensation is required in State through Dept of Trans Dev v Chambers Inv Co 595 So 598 La 1992 In analyzing the statutory restrictions provided 2d in civil code articles 667 and 668 the Chambers court noted as long as the activities on the State land do not exceed the level of causing the claimant some s inconvenience there can be no taking or damaging of the claimant property right s Further a finding of liabiliry under Article 667 requires either proof of personal injury or physical damage to property or proof of the presence of some type of excessive or abusive conduct Lodestro Co v City of Shreveport 33 La 901 App 2 Cir 9 768 So 724 727 d 00 27 2d Applying these legal principles to the matter before us we find it difficult to determine whether the trial court used the correct legal criteria ar whether legal error was made that interdicted the fact process The plaintiffs pre finding trial 6 memorandum asserts that they will have no problem proving that the plaintiffs have been inconvenienced The judgment itself asserts that damages were awarded for discomfort and inconvenience However the jurisprudence cited above establishes that damages for mere inconvenience are not compensable We have carefully examined the entire record with an advantage provided by the ability to consider the matter as if it were presented in weeks instead of over 10 years Regardless of whether our review is conducted under the manifest error standard or de novo we reach the same result As the trial court found these plaintiffs can only be compensated for any damages sustained by the expansion of the treatment plant that commenced in 1997 and was completed in 1998 The plaintiffs earlier claims have prescribed Therefore it was legal error to award damages for odors that existed in 1995 Similarly any stigma damages awarded are only permissible if they resulted from the expansion The plaintiffs expert in real estate appraisal concluded that the proximity to the treatment plant of the twenty homes appraised resulted in one damages to each property ranging from 13 to 30 However as the court 000 000 noted in its original reasons for judgment the expert did not consider the effect of the 1997 expansion on the property but the total effect of the sewerage treatment plant which has existed since 1960 When testifying in the plaintiffs case in chief the expert described the parameters of his report hat W did you understand the task that we asked you to perform in this case You asked me to evaluate and put a numeric value on the effects that the north sewerage treatment plant had on some 21 homes in the area adjoining the treatment plant sir Any effect that the treatment plant had on the homes that experienced stigma damage could only be legally relevant if the damage resulted from the 1997 expansion The defendants expert in real estate valuation acknowledged that the 7 Mitchell home had been damaged by the expansion of the treatment plant because prior to 1997 his residence was directly across the street from a BREC park whereas after the expansion there were trickling filters large tank structures facing the home It was his opinion that only the Mitchell home had been damaged by the expansion The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony unless the stated reasons of the expert are patently unsound Hanks v Entergy Corp 06 La 12 944 So 564 580 477 06 18 2d 81 Where there are two permissible views of the evidence the factfinder choice s between them cannot be manifestly erroneous or clearly wrong Hanks 944 So 2d at 580 Rosell v ESCO 549 So 840 844 La 1989 The opinion of plaintiffs 2d expert in this case was not patently unsound opinion was we11 and credible documented He was well and his qualified It is not however a permissible view upon which to rely because the task he was instructed to perform and did perform was to put a numeric value on the total effect of the sewerage treatment plant on the homes that he appraised and the law prohibits compensating plaintiffs for the effect of the sewerage treatment plant As noted only the effect of the expansion could be considered Alsq the costs of many of the plaintiffs homes reflected a decreased value due to the plant at the time of the purchase The testimony established for example that one plaintiff who had purchased the home in 1995 had paid only l5 for her home 000 The only expert evidence of the effect of the expansion on the plaintiffs is that of the defendant expert His opinion was that the Mitchell home was s damaged because of the loss of the park and the nearer proximity of the plant His assessment of the monetary value of the damage was 20 000 The trial court did not award any damages to the plaintiffs on Avenue M and Avenue L other than the loss of value to their homes reflected by the stigma 8 damage However an award was made to a number of plaintiffs for discomfort and inconvenience during the 17 period that the expansion was under month construction The evidence did not reasonably support a conclusion that the conduct of the defendants was abusive or excessive Neither was there evidence of any physical damage to property or personal injury Therefare these damages are not legally compensable Generally ill effects of construction are unavoidable and particularly when the construction is to benefit the public good are not compensable See Chambers supra Constance supra and Lodestro supra In this case not only did the construction benefit the public good but it was mandated by the EPA We find that the awards of 00 per month and 50 per month for the 17 construction period under the facts of this case were month erroneous and the portion of the judgment awarding these damages is reversed CONCLUSION Based on our review of the entire record we conclude that with the exception of the award to Mamie Mitchell the portion of 439 awarded for 000 stigma damage to the other eighteen plaintiffs on Avenue M and Avenue L must be reversed also the 2 awarded for discomfort and inconvenience to each of the 900 approximately 125 named plaintiffs beginning with David Allen and ending with Samuel Youngblood as well as the 450 awarded for discomfort and inconvenience to each of the 34 plaintiffs totaling 49 must be reversed 300 Judgment for damages in the amount of 20 is hereby awarded to Mamie 000 Mitchell plus attorney fees in the amount of thirty and one percent of three third the damage award In all other respects the judgment is affirmed AFFIRMED IN PART REVERSED IN PART AND RENDERED 9 GREG MITCHELL FIRST CIRCUIT CLODINE M GORDON LINDA BROWN BERTHA OXLY JANICE BELL ET AL COURT OF APPEAL STATE OF LOUISIANA VERSUS EAST BATON ROUGE PARISH ET AL 2009 CA 1076 CARTER C J In my opinion the plaintiffs claims are prescribed and should be reversed in toto I therefore concur with that portion of the opinion reversing the damages awards and dissent from that portion of the opinion rendering judgment and awarding damages and attorneys fees MITCHELL CLODINE M GORDON LINDA BROWN BERTHA OXLY JANICE BELL ET AL FIRST CIRCUIT VERSUS STATE OF LOUISIANA EAST BATON ROUGE PARISH ET AL NO 2009 CA 1076 CREC COURT OF APPEAL KT IHN J I disagree with that portion of the plurality opinion that reverses the awards of stigma damages to the residents living on Aves M and L As the expert explained stigma damages are those for diminution of property value General damages are those which may not be measured with any degree of pecuniary exactitude McGee v A C anr S Inc OS La 7 933 So 770 7 1036 06 10 2d 4 are inherently speculative in nature and cannot be fixed with mathematical certainty Bouquet v Wal Stores Inc 08 p 4 4 979 So Mart 0309 La 09 2d 456 458 Thus because diminution of property valuations cannot be measured 59 with any degree of pecuniary exactitude they are general damages and must be reviewed accardingly I believe the record nevertheless supports the trial court awards of stigma s damages The 1997 expansion significantly changed the size and with it the imposition of the effects of the sewerage plant on the surrounding communiry A fair reacling of Williams testimony establishes that the facility was much smaller in 1996 and that he did not smell any odors but when he returned in June or July of 2000 to the expansion was terrible very objectionable The subsequent it record also shows that a park had been located in the vicinity which was lost with the expansion and trees in close proximity were eliminated with the expansion I believe the trial court was surely within its province to conclude that the plaintiffs At oral arguments the parties conceded stigma damages are conectly reviewed as general damages 1 whose homes are located on Aves M and L were entitled to stigma damages as a result of the expansion The initial inquiry in reviewing an award of general damages is whether the trier of fact abused its vast discretion in assessing the amount of damages for the particular injuries and their effects under the particular circumstances on the particular injured person Youn v Maritime Overseas Corp 623 So 1257 2d 1260 La 1993 Reck v Stevens 373 So 498 501 La 1979 Only after a 2d determination that the trier of fact has abused its much discretion is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion Youn 623 So at 1260 2d Coco v Winston Industries Inc 341 So 332 335 La 1976 2d As the plurality opinion has pointed out the expert testimony establishing the value of the affected properties considered the total effect of the sewerage treatment plant By awarding the amount plaintiffs expert determined each property was diminished as a result of the existence of the facility since 1960 the trial court necessarily abused its discretion in fashioning an award for diminution of the affected property as a result of the 1997 expansion Accordingly I would reduce the stigma damages awarded to each of the residents living on Aves M and L to the highest amount reasonably within the trial court discretion s I concur with the results reached in the remainder of the plurality opinion z NOT DESIGNATED FOR PUBLTCATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1076 GREG MITCHELL CLODINE M GORDON LINDA BROWN IA BERTI OXLY JANICE BELL ET AL VERSUS EAST BATON ROUGE PARISH ET AL GUIDRY J dissents and assigns reasons GUIDRY J dissenting I respectfully disagree with the plurality opinion reversing damage awards to nineteen named plaintiffs for stigma damages to their residentiai property and reversing damage awards to 159 named plaintiffs for discomfort and inconvenience as a result of the sewer construction expansion in 1997 and 1998 In State Deparhnent of Trans and Development v Chambers 595 ortation So 2d 598 603 La 1992 the Louisiana Supreme Court adopted a three pronged analysis for determining whether a claimant is entitled to compensation for an unconstitutional taking Under this analysis Yhe court must i determine if a right with respect to a thing or object has been affected 2 if it is determined that property is involved decide whether the property has been taken or damaged in a constitutional sense and 3 determine whether the taking or damaging is for a public purpose under Article 1 4 Chambers 595 So 2d at 603 In deciding whether the claimant right was taken or damaged La C s arts 667 and 668 which impose legal limitations on a landowner right of s ownership must be considered Constance v State Department of Transportation and Development 626 So 2d 1151 1157 La 1993 While Article 667 prohibits the landowner from exercising his right of ownership in such a way as to cause damage to his neighbors Article 668 requires that he tolerate certain inconveniences which result from the lawful use of a neighbor property s Constance 626 So 2d at 1157 The supreme court in Chambers concluded that where there is no allegation or evidence of personal injury or physical da to nage property a finding of liability under Article 667 require sproof of the presence of some type ofexcessive or abusive conduct Chambers 595 So 2d at 605 The court went on to state that as long as the activities on the State land do not s exceed the level of causing the claimant some inconvenience there can be no taking or damaging of the claimant property right Chambers 595 So 2d at s 605 In finding that the nineteen named plaintiffs failed to establish stigma damages resulting from the expansion of the waste treatment facility the plurality relies on the fact that these plaintiffs failed to present expert testimony specifically quantifying the amount of diminution resulting solely from the expansion At trial Kermit Williams plaintiffs expert in the field of real estate appraisal testified as to the amount of diminution for each affected property In arriving at these figures Mr Williams found the single largest element contributing to the stigma is the foul odor emanating from the facility which he found to be worse in 2000 than when he previously evaluated the property in 1996 Additionally the record demonstrates that what was once a small primary treatment plant that treated only approximately eighty million gallons of water per day has grown and expanded over the years the last expansion having been completed in 1998 and now currently operates twenty hours a day three four hundred sixty days a year and is capable of treating one hundred thirty million five gallons of waste per day As reflected by the record and as articulated in the trial s court reasons for judgment this same growth has encroached upon nearby neighborhoods even eliminating a BREC neighborhood park and has resulted in noxious odors from raw human sewage and chemicals sewer flies and loud noises and harsh industrial lighting from the plant non operation The plaintiffs s stop testified that now they are forced to stay indoors due to the odor rendering their yards useless for social gatherings and outdoor activities and some have even had to leave their homes on several occasions Additionally where a neighborhood park once stood is now replaced by large concrete sewage tanks Therefore based on my review of the record I find that the plaintiffs presented considerable evidence from which the trial court could reasonably determine that the plaintiffs were entitled to stigma damages based on the 1997 expansion Additionally I find no abuse of discretion in the amounts of each damage award The trial court was presented with testimony from Mr Williams as to the amounts of stigma damages incurred by each property and the trial court ultimately determined based on the totality of the evidence before it what it considered to be an appropriate award See Mitter v St John the Baptish Parish 5 3 OS pp 7 La App Sth Cir 8 OS 27 12 920 So 2d 263 268 267 Accordingly I would affirm the trial court award of stigma damages to the s nineteen named plaintiffs Further while the plurality is correct in stating that damages for mere inconvenience are not compensable I find the discomfort and inconvenience suffered by the other 159 named plaintiffs during the expansion construction in 1997 and 1998 amounts to be more than mere inconvenience Accarding to the record the construction of the expansion generated additional noise due to trucks jackhammers and pile driving in addition to the increased dust odor and sewer flies The plaintiffs even complained to the building contractar during the construction regarding the increase in sewer flies and dust Further at times the construction took place twenty hours four a day affording the plaintiffs no escape from its effects The unsanitary and ultrahazardous activities surrounding the construction expansion far exceed what are normal ill effects of construction and therefore are legally compensable damages See Chambers 595 So 2d 605 606 Therefore I find no manifest error in the trial court determination that the s 159 named plaintiffs are entitled to damages for discomfort and inconvenience Likewise I find no abuse of discretion in the trial court awards to these 159 s named plaintiffs based on their proximity to the waste treatment facility Accardingly for the foregoing reasons I respectfully dissent from the s plurality opinion

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