D&J Fill, Inc. VS State of Louisiana, Department of Environmental Quality (2013CA0762 Consolidated With 2013CA0763)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NLTMBER 2013 CA 762 D & J FILL., INC. VERStiS STATE OF LOUISIANA, DEPARTMENT OF ENVIRONMENTAL QUALITY consolidated with NLJMBER 2013 CA 0763 1 T X'/ D & J FILL, INC. 7" VERSUS STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF ENVIRONIVIENTAL QUALITY Judgment Rendered: APR 2 4 2 1 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit Number 558, 477 c/ w 578, 855 Honorable Wilson E. Fields, Judge Barbara Lane Irwin Timothy Counsel for Plaintiff/Appellant E. Pujol D & J Fill, Inc. Matthew W. Pryor Gonzales, LA James D. " Attorney Buddy" Caldwell General Counsel far Defendant/Appellee Michael A. Patterson State of Louisiana S. Brooke Barnett- Bernal through the Department LaToya D. Jordan of Environmental Quality Special Assistant Attorneys General Baton Rouge, LA BEFORE: PARRO, GUIDRY, AND DRAKE, JJ. GUIDRY, J. A former landfill business appeals the dismissal of its petition for damages filed against the Louisiana Department of Eni ironrriental Quality (LDEQ) pursuant to the district court sustaining a peremptory exception raising the objection of no cause of action. For the following reasons, vv r verse and remand this matter for further proceedings. FACT5 AND PROCEDURAL HISTORY In August 1994, the operate a LDEQ issued interim facility ( landfill) solid waste orders to D & J Fill, Inc. to in Ascension Parish pending D & J Fill' s application for a standard operating permit. Twelve years later, on or about June 1, 2007, the LDEQ simultaneously issued an Order to Close and a decision denying D & J Fill' s request for a standard permit. J Fill filed a petition for de novo D& review of the LDEQ's actions with the Nineteenth Judicial District Court and later filed a motion for summary judgment seeking dismissal of the LDEQ's Order to Close filed and a its decision to motion cross deny D& J Fill' s standard permit application. The LDEQ for summary judgment, seeking dismissal of D & J Fill' s petition for de novo review. Following a hearing on the cross motions, the district court denied the LDEQ' s for summary judgment, motion granted D & J Fill's motion for summary judgment, and remanded the matter to the LDEQ for further consideration upon finding to that the Close and adjudicatory LDEQ violated denying its hearing. ll &J permit Fill's due process rights in issuing the Order application without affording D & 7 Fill an The LDEQ appealed the summary judgment in favor of D J Fill to this court. On appeal, we reversed the district court, insofar that it held that the LDEQ' s process rights. review could regulatory decisions However, not finding be decided were made that the by in merits of violation of D& J Fill's due D & J Fill's petition for de novo summary judgment, because consideration of whether LDEQ the acted arbitrarily and capriciously in D & J Fill's permit denying application amounted to a factual determination, we denied the LDEQ' s concurrent writ application district court for and a remanded D & J Fill' s petition for de novo review to the full determination on the merits. See D & J Fill, Inc. v. State, Department of Environmental Ouality_,09- G13R ( La. App. lst Cir. 10/ 23/ 09), 24 So. 3d 1030 ( unpublished opinion). While the prior appeal was still pending, D & J Fill filed a petition for damages against the LDEQ, alleging that the LDEQ' s Order to Close and denial of a standard pertnit was a misapplication of the law and an illegal and ultra vires act; therefore, it sought damages, including, but not limited to, economic damages, lost D & J Fill later filed a motion to consolidate its petition lost income. profits, and for damages with its action for de novo review. By an order signed February 14, 2012, the matters were consolidated. Following consolidation of the actions, the LDEQ filed a peremptory exception objecting to D & J Fill' s petition for damages on the basis of no cause of action. Therein, the LDEQ alleged that its decisions to issue the Order to Close and deny D & J Fill' s permit application were discretionary acts based on public policy considerations," making it immune from liability pursuant the district damages caurt to La. R. S. 9: 2798. 1( B). sustained with prejudice. Following a hearing on the exception, the exception and D & dismissed D & J Fill's petition for J Fill devolutively appeals that judgment. DISCUSSION SUBJECT MATTER JLIRISDICTION Although not raised in the district court, the LDEQ asserts in opposition to this appeal that the district court, and, in turn, this court lack subject matter jurisdiction to consider D & J Fill' s petition for damages. See Louisiana Land Acquisition LLC v. Louisiana Deparhnent of Environmental Quality, 11- 2037, pp. 3 7- 8 ( La. App. lst Cir. 7/ 1 8/ 12), 97 So. 3d 1144, 114, writ gtranted in part, 12- 1872 La. 11/ 16/ 12), 103 So, 3d 358. There is no merxt to this contention. Our state constitution accords district courts original jurisdiction over " civil La. Const. matters." art. V, § 16( A)( 1). District courts historically have exercised original jurisdiction in tort actions as oivil matters. Pope v. State, 99- 2559, p. 10 La. 6/ 29/ O1), 792 So. 2d 713, 719. While the success of D & J Fill' s petition for damages ultimately depends on it prevailing on its petition far de novo review of the LDEQ's permitting decisions, which is still pending before the district court, the sole relief sought by D& J Fill in its petition for damages are tort damages, which clearly fall within the original jurisdiction of the district court. Hence, we find both the district court and this court have subject matter jurisdiction to consider the claims presented in D & J Fill's petition for damages. l NO CAUSE OF ACTION The objection that a petition fails to state a cause of action is properly raised by the peremptory exception. La. C. C. P. art. 927( A)( 5). A trial court' s judgmenY sustaining the peremptory exception raising the objection of no cause of action is subject to de novo review by an appellate court, employing the same principles applicable to the trial court's determination of the exception. Tobin v. Jindal, 11- 1004, p. 5 ( La. App. lst Cir. 2/ 10/ 12), 91 So. 3d 329, 332- 33. The exception of no cause of action refers to the operative facts that give rise to the plaintiffs right 1 In its brief on appeal, the LDEQ additionally argues that it is immune from suit based an quasi-judicial immunity. Because many administrative boards and commissions have a quasijudicial function when they adjudicate matters such as licenses, it has become common for courts to recognize quasi judicial immunity, equivalent to judicial immunity, for such boards and commissions, and their individual members, for actions taken and decisions made in their adjudicative role. Talbert v. Louisiana State Board ofNursine, 03- 0258, p. 4 ( La. App. lst Cir. 12/ 31/ 03), 868 So. 2d 729, 731. However, as this court recognized in Louisiana Land Acquisition, where the LDEQ refuses to hold an adyudicatory hearing, the Louisiana Legislature has delegated the district court as the adjudicative tribunal. See Louisiana Land Acquisition, 11- 2037 at pp. 5- 6, 97 So. 3d at 114 ( citing In the Matter of Supplemental Fuels, Inc., 94- 1596 ( La. App. lst Cir. 5/ 9/ 95), 656 So. 2d 24); see also La. R. S. 30: 2024( C). Thus, we find no merit in the LBEQ' s assertion of judicial immunity. 4 to judicially assert the action agaanst the defendantc, Tobin, 11- 10o4 at p. 5, 91 So. 3d at 333. A court must review the petiYion and acce±t all well-pleaded facts as true, and the only issue is whether, on the face of the petition, plaintiffs are legally entitled to the relief sought. Clavier v C)ur Lad of the Lake Hospital, Inc., 120560, pp. 3- 4 ( La. App. lst Cir. 12/ 28i12), ll2 So. 3d 881, 885, writ denied, 13- 0264 ( La. 3/ 15/ 13), 109 So. 3d 384e An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relie£ Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an affirmative defense that appears clearly on the face of` the pleadings. Blackett v. City of Monroe, 33, 339, pp. 3- 4 ( La. App. 2d Cir. 9/ 7/ 00), 766 So. 2d 768, 770- 71. In this case, the LDEQ has asserted that it is immune from liability by virtue of La. R. S. 9: 2798. 1( B), which provides: " Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking ar discretionary acts when such acts are within the course and scope of their lawful powers and duties.'° However, La. R. S. 9: 2798. 1( C)( 2) provides that the immunity granted in Subsection B is not applicable to " acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct." In its petition for damages, D & 7 Fill alleged the following as grounds far its suit: 3. D& J applied for a standard permit with LDEQ, which application remained pending during the entirety of its operations. In other words, a standard permit was never granted to D& J and D& J did 5 not operate the landfill under a sta ndard permit, but continued to operate under the Interim Operating Plan. 4. In 2007, LDEQ issued an Order to Clase and Denial of Standard Permit to petitioner herein, ordering it to cease operations and close its business pursuant to regulations goveming standard permitted operations, not those operating under an Interirn Operating Plan such as D& J. .... 7, On August 24, 2007, D& J instituted a suit seeking judicial review and trial de novo of the denial of the request far an administrative adjudicatory hearing against LDEQ seeking a judgment nullifying the Order to Close and declaration that the Order to Close was ill-founded, ultra vires and issued pursuant to laws andlor regulations which did not apply to D& J' s operations under the Interim Operating Plan. .... 8. The suit for judicial review alleges that LDEQ improperly issued the Order to Close pursuant to authority governing standard permitted operations, not those that operate pursuant to an Interim Plan. Operating Since the legal authority governing the Order to Close did not apply to D& J' s operations, the Order to Close was thereby absolutely null, ultra vires and improperly issued. 16. At all times material herein; LDEQ h s acted in an intentional, illegal, arbitrary, capricious, willful, wanton, reckless and outrageous manner in issuing and effectuating the Order to Close and Denial of Standard Permit upon D& J. 17. Despite knowledge of the appropriate regulations applicable to a landfill such as D& 7, LDEQ intentionally and knowingly misapplied the law, acted illegally and in an ultra vires manner in order to force Petitioner's business to close and suffer the above outlined damages. Reviewing the above- quoted paragraphs of D & J Fill' s petition, it has alleged conduct by the LDEQ that appears to meet the criteria of La. R.S. 9: 2798. 1( C)( 2), and as such, would make the immunity defense of La. R.S. 9: 2798. 1( B) inapplicable to the LDEQ, Nevertheless, the LDEQ asserts that D & J Fill' s allegations are merely assertions of legal conclusions, and thus, cannot defeat the objection of no cause of action asserted disagree. 6 ir. its peremptory exception. We While the correctness of conclusions of law is not conceded for the purposes of a ruling on an exception of no cause of action, all well-pleaded allegations of fact must be accepted as true. And if the allegations set forth a cause of action as to any part of the demand, the exeeption must be overruled. Any doubts should be resolved in favor of f the the sufficieney See Lambert v. Riverboat petition. Gamin Enforcement Division, 9b- 1856, p. 4 ( La. App. l st Cir. 12/ 29/ 97), 706 So. 2d 172, 175, writ denied, 98- 0297 ( La. 3/ 20/ 98), 715 So. 2d 122L D& J Fill's petition for damages specifically alleges the manner in which it asserts that the LDEQ wrongfully denied its failing to abide by Operating Plan, by the permit application and regulatory which standards issued the Order to Close -- provided in D & by J Fi11' s Interim J Fill asserts its operations were exclusively D & governed.2 It has yet to be conclusively established that the LDEQ acted beyond its authority in the manner asserted the objection of deciding be accepted as true. As by D & J Fill in its petition, but for the purpuses of no cause of action, such, we these find that, to the assertions extent D & by D & J Fill must J Fill factually alleged that the LDEQ willfully and intentionally appTied the wrong regulatory standards to deny its permit application and to order closure of its business, D & J Fill has stated a claim pursuant to La. R.S. 9: 2798. 1( C) to overcome the LDEQ's assertion of discretionary immunity and to maintain iYs petition for damages. See Sommer v. State Department of Transportation and Development, 97- 1929, pp. 18- 19 ( La. App. 4th Cir. 3/ 29/ 00), 758 So. 2d 923, 935- 36, writ denied, 00- 1759 ( La. 10/27/ 00), 772 So. 2d 122 ( wherein the court found that because the defendants' actions were malicious and intentional, La. R.S. 9: 2798. 1( C) applied to deny the 2 We obserae that LAC 33: VIL509( B)( 1)( a)( i) provides that an existing facility is subject to regulations in accordance with an interim operational plan when it is issued a temporary permit to allow operations to continue at the existing facility while a standard permit application is being processed. 7 defendants action immunity). should be Acc.ordingly, we tind that the objection of no cause of overruled,' and D &. J Fill`s getition for damages should be maintained, subject to the district court' s c e novo review of the LDEQ' s permitting decisions. CONCLIISION For the faregoing reasons, we reverse the judgment of the district court that dismissed D & J Fill's petition for damages by sustaining the LDEQ's peremptory exception raising the objection of no cause of action. Finding that D & J Fill's petition states grounds for holding that the LDEQ may not be entitled to La. R.S. 9: 2798. 1( B) immunity, we overrule the exception and remand this matter to the district court for further proceedings. All costs of this appeal, in the amount of 3, 787. 50, are cast to the Louisiana Department of Environmental Quality. REVERSED AND REMANDED. 3 The overruling of the exception of no cause of action is not a definitive ruling that the LDEQ' s affirmative defense of immunity, pursuant to La. R.S. 9: 2798. 1( B), is inapplicable under the facts to be established in the case. See Lambert, 96- 1856 at p. 7 n.2, 706 So. 2d at 176 n. 2. 8

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