author: | JAMES F. McKAY III, Judge. | iTOBIAS, J.,

text:
    Leon L. GIORGIO, Jr. v. ALLIANCE OPERATING CORPORATION, Gulfstream Resources, Inc., Burlington Resources, et al., Chevron USA, Inc., Superior Oilfield Services, Inc., State of Louisiana, Through its Department of Natural Resources, Lloyds Underwriters at Lloyds, et al. Jacques A. Sanborn v. Alliance Operating Corporation, Gulfstream Resources, Inc., Burlington Resources, et al., Chevron USA, Inc., Superior Oilfield Services, Inc., State of Louisiana, Through its Department of Natural Resources, Lloyds Underwriters at Lloyds, et al.
    Nos. 2003-CA-1832, 2003-CA-1834.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 2004.
    Rehearing Denied Dec. 3, 2004.

      Daniel L. Dysart, Paul A. Tabary III, Leonce J. Malus III, Dysart & Tabary, L.L.P., Chalmette, Louisiana, for Plain-tifftAppellee, Jacques A. Sanborn.
    David L. Colvin, David Covin & Associates Gretna, Louisiana, for Plaintiff/Appel-lee, Leon L. Giorgio, Jr.
    Charles C. Foti, Jr., Attorney General, State of Louisiana, Richard P. Ieyoub, Former Attorney General State of Louisiana, G.A. Manthey, Jr., Assistant Attorney General State of Louisiana, William S. Cul-ver, Jr., Assistant Attorney General State of Louisiana, Louisiana Dept, of Justice Litigation Division, New Orleans, Louisiana, for Defendant/Appellee, State of Louisiana through the Department of Natural Resources.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   | JAMES F. McKAY III, Judge.

The defendant, the State of Louisiana, through the Department of Natural Resources, appeals a trial court judgment in favor of the plaintiffs, Leon Giorgio and Jacques Sanborn. We affirm.

FACTS AND PROCEDURAL HISTORY

On the afternoon of March 14, 1998, the “Jo-Le,” a thirty-eight foot Bertram sport fishing boat, left dock at Chalmette and headed for the waters of Breton Sound via the Mississippi River Gulf Outlet. Aboard the vessel were one of its owners, Leon Giorgio, his good friend, Jacques Sanborn, and Sanborn’s fourteen-year old son, Brett. The group’s itinerary was to do some fishing and then meet Giorgio’s business partner and co-owner of the vessel at a restaurant in Venice.

After some fishing, with darkness approaching, the group decided to head towards Venice. The “Jo-Le” was on course to Breton Island when she violently crashed into a set of pilings adjacent to a large, unlit oil production platform. At the time of the accident, Giorgio had a visual fix on the lighted Kerr-McGee tower 1 ¡located on Breton Island and had just adjusted the vessel’s radar from short range (1/4 to/é miles) to long range (24 miles) to get a fix on his destination.

The site of the accident was originally a construction put on State lease 8342, granted to Gulf Oil Company in 1979. Gulf Oil received a permit from the United States Army Corps of Engineers and the Louisiana State Department of Conservation to drill three wells and erect a production platform. The wells were drilled in 1981, and the platform was installed in 1982 by Chevron Oil Company, Gulf Oil’s successor in title to the lease. In 1988, the lease was sold to Alliance Oil Company, which in turn sold the lease to Superior Oil Company in 1992. The lease expired on July 30, 1993 and the State Mineral Board authorized the release of the lease on December 8, 1993. The release in favor of the State of Louisiana was executed by Superior Oil Company on April 28, 1994 and recorded on May 3, 1994. The release provided that Superior release, relinquish, surrender and quit claim to the State Mineral Board any and all right, title and interest whatsoever presently owned by Superior in and to State Lease 8342. Lease 8342 was declared orphaned in January 1995, but there was no order to plug and abandon the site before the accident and it was not until 1999 that the State finally declared the site a hazard to navigation.

As a result of the allision, Giorgio and Sanborn were seriously injured and the “Jo-Le” was taking on water and sinking. Giorgio sent a “mayday” signal over his VHS radio to which the “Massive Runner,” a 152-foot crew boat responded. |3The injured men were rushed to Venice, from where they were transported by ambulance to Meadowcrest Hospital for treatment. The “Jo-Le” ultimately sank and was declared a total loss by the marine surveyor assigned by the insurer of the vessel.

Giorgio and Sanborn filed petitions for damages against several defendants that had at one time owned, operated or were otherwise responsible for the abandoned drilling structure into which the plaintiffs ran the “Jo-Le.” All of the defendants except the State of Louisiana, Department of Natural Resources, were dismissed as a result of settlements before trial. Trial commenced on August 19, 2002. During trial, Gary Ross, a representative of the Louisiana Department of Conservation, testified that once the site was orphaned in 1995 and it was understood that neither Alliance nor Superior was exercising responsibility for the structure, it was the State’s responsibility to determine whether it needed to be removed. After three days of testimony and receiving evidence, the trial court took the matter under advisement.

On January 28, 2003, the trial court rendered judgment in favor of the plaintiffs and against the State. The trial court awarded Sanborn: $100,000.00 for past physical pain, suffering and mental anguish; $125,000.00 for future physical pain, suffering, mental anguish and permanent disability; $10,414.72 for past medical expenses; $70,000.00 for future medical expenses; and $125,000.00 for property damage. The trial court awarded Giorgio: $75,000.00 for past physical Lpain, suffering and mental anguish; $100,000.00 for future physical pain, suffering, mental anguish and permanent disability; and $3,851.50 for past medical expenses. In addition the plaintiffs were awarded legal interest from the date of judicial demand until paid for all past damages awarded, and interest from the date of judgment on all future damages awarded, plus all costs of the proceedings. The State now appeals the trial court’s judgment.

DISCUSSION

On appeal, the State raises the following assignments of error: 1) it was legal error to not apply general maritime law to litigation arising out of the collision between a 38-foot yacht and a production barge in the navigable waters of Breton Sound, in which the essence of plaintiffs’ claim was that the barge did not display navigation lights to alert mariners to its presence at night; 2) on the record before the district court, it was consequential error to not affix sole collision fault on the owner/operator of the modern radar-equipped yacht which struck an unlit production barge, whose precise location was depicted on the official nautical chart of the area; 3) it was legal error to cast the Department of Natural Resources in judgment for not lighting the barge when DNR had no ownership nor operating interest in the production barge, particularly where the evidence was undisputed that other parties had the legal duty under general maritime law to maintain its lighting and were, in fact, fulfilling that function; and 4) it was error to award damages of $125,000.00 to Jacques Sanborn for the total loss of the yacht when he was only a passenger thereon, and had no ownership interest whatsoever.

IsThe State’s first assignment of error involves the trial court’s alleged failure to apply the general maritime law rather than Louisiana state law. Beginning with Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the State, in its brief, cites a whole litany of cases for the proposition that the general maritime law should apply in the instant case. In Executive Jet, the United States Supreme Court states:

The law of admiralty has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world, beyond whose shores they cannot go. That law deals with navigational rules — rules that govern the manner and direction those vessels may rightly move upon the waters. When a collision occurs or a ship founders at sea, the law of admiralty looks to those rules to determine fault, liability, and all other questions that may arise from such a catastrophe. Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. 409 U.S. at 269-70, 93 S.Ct. at 505.

However, it is also well settled that by virtue of the savings clause “a state, ‘having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents as it sees fit’ so long as it does not attempt to make changes in the substantive maritime law.” Offshore Logistics v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). Furthermore, in Green v. Industrial Helicopters, Inc., 593 So.2d 634 (La.1992), the Louisiana Supreme Court found that the general maritime law authorized the application of state law as a supplement to the general maritime law unless there is some federal impediment to the application of that law in federal legislation or a clearly applicable rule in the |figeneral maritime law. In the instant case, there was no election by the trial court to apply state law over the general maritime law. Therefore, the State has failed to show how any principals of state law cited in the trial court’s reasons for judgment in any way conflict with the general maritime law. Accordingly, the State’s first assignment of error is without merit.

In its second assignment of error, the State contends that the trial court erred in not affixing sole fault for the allision to Giorgio. Although Giorgio admitted that he was not aware that he was legally obligated to follow the inland rules of navigation set forth by the Inland Navigation Rules Act of 1980, 33 U.S.C. §§ 2001-2038, the defendant has failed to show how any violations of these rules was a proximate cause of the accident. The fact remains that the cluster of pilings adjacent to the abandoned unlit structure located in Breton Sound was the cause in fact of the accident. Accordingly, we find nothing manifestly erroneous with this factual finding of the trial court.

In its third assignment of error, the State contends that it was legal error to cast the DNR in judgment for not lighting the barge when DNR had no ownership, nor operating interest in the production barge and where there was evidence that other parties had the legal duty under general maritime law to maintain lighting and were fulfilling that function. In its reasons for judgment, the trial court stated: “By virtue of the release of the original lease by which these State water bottoms |7was [sic] encumbered, and the declaration of the site as orphaned by the State, the responsibility for the platform and the injuries suffered by the Plaintiffs is established.” In support of its position imposing liability upon the State, the trial court cites two recent cases from this Court, Anderson v. Tenneco Oil Co., 2001-0295 (La.App. 4 Cir. 5/24/02), 826 So.2d 1143, writ denied, 2002-2035 (La.App.11/1/02), 828 So.2d 585 and Melerine v. State, 2000-0162 (La.App. 4 Cir. 11/14/00), 773 So.2d 831.

In Melerine, a fisherman whose boat struck an abandoned oil well casing brought an action against the State and the well driller to recover damages for personal injuries and property damage. The trial court entered judgment for the fisherman and on appeal this Court held that that the abandoned oil well casing was under the sole ownership and custody of the State and the evidence supported a finding that the State was liable under negligence and strict liability theories. Id. at 840-843. In reaching this conclusion, the Court relied upon La. C.C. art. 493 for the proposition that the State, which owns the water bottoms on which the casings were located, became the owner of the abandoned oil well casings when they were not removed within 90 days after the lease was terminated. The Court relied upon La. C.C. art. 2317 for the proposition that the State is liable for the damage caused by the abandoned structure located on its property.

In Anderson, shrimpers sued the State for injuries they received when their boat struck an unmarked piling at night. The trial court entered judgment for the .lashrimpers. On appeal, this Court held among other things that the State owned and had garde over the wood pilings around the casing of an abandoned oil well and the State had actual and constructive notice of the wood pilings. Id. at 1148-1154. In holding that the State owned and had garde over the pilings, this Court relied upon La. C.C. art. 493 as it did in Melerine. With regards to its holding that the State had actual and constructive knowledge of the wood pilings, this Court relied upon the fact that Tenneco had filed its plug and abandonment report with the State and the report clearly indicated that no well casing was pulled.

On April 28, 1994, Superior released all rights under State lease 8342; therefore, under La. C.C. art 493 and the rationale employed by this Court in both Melerine and Anderson, the State bears responsibility for the abandoned structure located on former State lease 8342. Furthermore, the State had actual knowledge of the dangerous condition of the structure in question. On December 16, 1997, a lawsuit involving the same structure on State lease 8342 was filed in the 25th Judicial District Court for the Parish of Plaquemines for an allision that occurred on December 16, 1996.

The State contends that Shofstahl v. Board of Commissioners of the Orleans Levee District, 2002-0018 (La.App. 4 Cir. 1/15/03), 841 So.2d 1 exonerates it from liability in this case. Shofstahl, however, can be distinguished from the instant case. In Shofstahl, the plaintiffs ran their boat into an unlit pier near the shore of [ 3Lake Pontchartrain. This Court found that although the condition in which the defendants maintained the pier was a cause in fact of the accident, the plaintiffs were the sole proximate and superseding cause of their accident. In large part this Court’s finding was based upon the fact that the owner and lessee of the pier had a permit stating pier lighting would be required if the United States Coast Guard prescribed lighting and there was no evidence that the Coast Guard did in fact prescribe lighting.

In the instant case, we are dealing not with a functioning pier, but a set of pilings adjacent to an abandoned oil production platform. The Department of Natural Resources, not the United States Coast Guard was the party responsible for determining whether or not the structure in question presented an unreasonable risk to public safety. The State of Louisiana, through its police power, has a significant interest in seeing to it that structures such as the one involved in the instant case are maintained in a safe condition. This interest was recognized by the legislature when it created the Louisiana Underwater Obstruction Removal Program. The purpose of this program was “to provide for the proper and timely identification, inventory, and removal of underwater obstructions which are a hazard to navigation and commercial fishing in the state.” La. R.S. 30:101.2. Clearly, the instant case is more similar to Anderson and Melerine than it is to Shofstahl.

Based on the law and the record before this Court, we agree with the trial court that the State had custody of and responsibility for the accident site and the 110abandoned unlit structure presented an unreasonably dangerous hazard to navigation.

In its fourth assignment of error, the State challenges the trial court’s award of property damage for the total loss of the “Jo-Le” to Sanborn when he had no ownership interest in the vessel. This assignment of error is without merit. The record clearly establishes that by virtue of a settlement of Sanborn’s personal injury claim against 38BLLC (the boat’s owner) and London Underwriters (the boat’s insurer), and London Underwriters’ settlement with Chevron, London Underwriters assigned its property damage rights against the State to Sanborn.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s findings of fact as well as the personal injury, medical expenses, and property damage awards made to Giorgio and Sanborn.

AFFIRMED.

TOBIAS, J., dissents and assigns reasons.

| iTOBIAS, J.,

dissenting.

I respectfully dissent.

I find that Shofstahl v. Board of Commissioners of the Orleans Levee District, 2002-0018 (La.App. 4 Cir. 1/15/03), 841 So.2d 1, writ denied 2003-1387 (La.9/26/03), 854 So.2d 368, (which the majority finds is factually distinguishable), is identical to the facts to the case at bar. Shofstahl and general maritime law bar recovery by the plaintiffs against the State of Louisiana, Department of Natural Resources.

In Shofstahl, the plaintiffs were proceeding at night in navigable waters when they hit an unlit pier that appeared on navigational charts. Recognizing that the claim fell within the admiralty laws and not state law, we stated:

Given that this boating accident occurred on navigable waters, the plaintiffs correctly first sought recovery under admiralty law. Thus, the governing law we use to determine whether summary judgment is appropriate will be that of general maritime law. Plaintiffs also correctly note that state law can be used to supplement the general maritime law, but this point will be discussed later.
The plaintiffs alleged negligence on the part of the defendants by the fact of the pier’s existence on navigable waters. The defendants countered and responded by producing the permit for the pier granted by the U.S. Army Corps of Engineers in 1956.
| gUnder general maritime tort law, this action shifted the burden of proof to the plaintiffs to show a duty or legal requirement on the defendants to affix a navigation light on the boat pier. To attempt to satisfy this burden, the plaintiffs alluded to a statement in the permit from the Army Corps which stated that lighting would be required if the U.S. Coast Guard prescribed it. After seven years of litigation, plaintiffs produced no evidence that the U.S. Coast Guard ever required a light on this pier.
We agree with the trial court, that without an incumbent duty on the part of the defendants to have lit the pier, the general maritime tort law does not hold the owners of a pier liable.
In American Commercial Barge v. Alter Barge Line, Inc., 2002 WL 31246543 (E.D.La.10/4/2002), the court reflecting on maritime tort law stated:
When a moving vessel collides with a fixed object, there is a presumption that the moving vessel is at fault. The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 39 L.Ed. 943 (1895).
* * *
The presumption may be overcome, however, if the moving vessel demonstrates that the collision, ... was caused by an act of God, the negligence of a third party, or the fault of the stationary object. See The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 39 L.Ed. 943 (1895); Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 794-95 (5th Cir.1977).
Upon reviewing the record, we find that plaintiffs did not come forth with evidence to prove a duty existed on behalf of the defendants to light the pier. Moreover, because the defendants had a permit, for which the U.S. Coast Guard did not require a light, and because the pier was marked on the official marine navigation chart published by the federal government, we find the plaintiffs did not prove that the pier constituted an unreasonable risk. — to use the language of Louisiana tort law — even though maritime law applies.
The plaintiffs alleged that the trial court erred by not referencing more legal standards in this case. The trial court was succinct in its reasons for judgment, stating that it found no duty incumbent upon the defendants to light the pier. Even though the plaintiffs are correct in that more standards could have been applied, they are not in the plaintiffs’ favor and would not change the outcome.
For example, the language of the federal navigational statute of 1980 (33 U.S.C. § 2006-2038) recognizes that mariners may encounter navigational hazards in conditions of poor visibility, and states:
13Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
In determining a safe speed the following factors shall be among those taken into account:
(a) By all vessels:
(i) the state of visibility, ...
(v) the state of wind, sea, and current, and the proximity of navigational hazards; ...
See 33 U.S.C. § 2006.
Clearly a pier is an obstruction to navigation, but it is one that is routinely allowed, and this one was officially permitted by the federal government and noted on the appropriate navigational charts.
The legal duty under general maritime law to avoid an obstruction to navigation is on the operator and look-out (33 U.S.C. § 2005) of the vessel — the plaintiffs here. 33 U.S.C. § 2008.
Plaintiffs cite no statute or ease law that the owner of a pier which is duly permitted by the federal government, and the precise location of which is depicted on the official marine navigation chart published by the federal government, has a legal duty to display a navigation light on the pier in circumstances where neither the federal permitting authority nor the federal regulatory/ enforcement authority requires the light....
All of these facts lead us to the next point, which is ultimately what was the cause of this maritime accident. The United States Supreme Court has held the requirement of legal or “proximate” causation and the related “superseding cause” doctrine apply in admiralty notwithstanding the adoption of the comparative fault principle in state law tort litigation. In Exxon v. Sofec, 517 U.S. 830, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996), Justice Thomas wrote for the Court:
The legal question that we took this case to address is whether a plaintiff in admiralty that is the superseding and thus the sole proximate cause of its own injury can recover part of its damages from tortfeasors or contracting partners whose blameworthy actions or breaches were causes in fact of the plaintiffs injury. As we have held above, the answer is that it may not.
517 U.S. at 840, 116 S.Ct. 1813.
|4In the present case, plaintiffs’ actions are the superseding and the sole proximate cause of their injuries. While the defendants’ unlit pier may be a cause in fact of the plaintiffs’ injuries, cause in fact liability is not sufficient to justify a recovery using negligence principles of general maritime law. We recognize that this is different from most state tort law systems, where percentages of fault are allocated (whether they be proximate causes or causes in fact) and recovery is permitted according to the percentage of fault times the damages. Nevertheless, due to the situs and maritime nature of this accident, substantive general maritime law applies.
We embraced the “intervening” concept in Sutton v. Duplessis, 584 So.2d 362 (La.App. 4 Cir.1991) where we held:
Negligence is actionable only where it is both a cause in fact and a legal cause of the injury. Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs, and such relation must be substantial in character. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) ...
A proximate cause is generally defined as any cause which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produces the result complained of and without which the result would not have occurred. [Citations omitted.] When an accident results from two acts of negligence, one more remote and one an intervening cause, the presence of the intervening cause prevents a finding of liability on the one responsible for the more remote cause. [Citations omitted.]
In this case, we find that the negligence of the Orleans Parish School Board was an intervening cause which superseded any negligence on the part of Mrs. Sutton, and was the sole legal cause of Peter’s injury.
Sutton, 584 So.2d at 365 [Emphasis added.]
Here, the plaintiffs’ navigational negligence was the sole proximate cause of the allision and/or the superseding cause. A fixed object does not cause an accident simply by “being there.” See American River Trans Company v. Arosita Shipping Company, 148 F.3d 446, 1998 AMC 2794 (5th Cir.1998).
The plaintiffs’ third assignment of error is that the trial court did |Bnot apply a state legal standard of conduct by which to judge this alleged tort. The trial court was correct in applying substantive maritime tort law. This accident occurred over navigable waters in a boat. The act of boating is the most classical of all maritime activities. The fact that a boat strikes a boat pier does not involve state policy considerations so significant as to justify altering general maritime law. Adams v. Chevron, U.S.A., Inc., 589 So.2d 1219 (La.App. 4 Cir.1991). Moreover, federal general maritime law preempts state law, and state law should supplement general maritime law only under special circumstances. This is not one of those circumstances.
Plaintiffs cite Green v. Industrial Helicopters, Inc., 593 So.2d 634 (La.1992) to argue that state tort law should govern this case. The United States Supreme Court has explained, “Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law.” Askew v. American Waterways Operators, Inc., 411 U.S. 325, 341, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973); see; Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). Thus, “the general rule on preemption in admiralty is that states may supplement federal admiralty law as applied to matters of local concern, so long as state law does not actually conflict with federal law or interfere with the uniform working of the maritime legal system.” Pacific Merchant Shipping Ass’n v. Aubry, 918 F.2d 1409, 1422 (9th Cir.1990).
We distinguish Green, because that accident involved a helicopter crash over navigable waters, something that was not classical maritime activity. Under the facts here, there is no need to supplement federal law, there is a clearly applicable rule in the general maritime law. Green, supra at 638. An application of state law to these facts would interfere with the uniform working of the maritime legal system. Moreover, to make a finding that lights should have been required on the pier, would usurp power granted by the federal government to the U.S. Coast Guard.

Id. at pp. 6-11, 841 So.2d 4-7. [Footnote omitted; emphasis in original.]

The majority’s reliance on Anderson v. Tenneco Oil Co., 2001-0295 (La.App. 4 Cir. 5/24/02), 826 So.2d 1143, and Melerine v. State, 2000-0162 (La.App. 4 Cir. 11/14/00), 773 So.2d 831, is misplaced. In both cases, the plaintiffs suffered damages after striking the remenant of oil drilling activities. Each remenant had been abandoned by the oil industry and the state became the owner of the remenant; the state had knowledge of the existence of the reme-nant. No evidence existed in either case that the remenant appeared on any nautical chart. The state was held responsible under a theory of garde and or ownership.

|BIn the case at bar, unlike the situations in Anderson and Melerine, the National Oceanic and Atmospheric Administration charts of Breton Sound show the obstruction which the Jo-Le struck. Giorgio had charts aboard the Jo-Le, one of which depicted the obstruction. He failed to exercise the necessary care. In my view, Shofstahl controls the facts of this case, not Anderson or Melerine, by virtue of official charts in the possession of the vessel operator that noted the obstruction.

The majority places special emphasis upon the testimony of Gary Ross, a representative of the Louisiana Department of Conservation, who opined that once the site was orphaned and neither Alliance nor Superior exercised further control of the structure, “it was the State’s responsibility to determine whether it [the structure] needed to be removed.” By making the foregoing statement, the majority opens up the question of whether the state has abused its discretion in not removing the structure. This raises the issue of the “public duty doctrine” embodied in La. R.S. 9:2798.1, which states:

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. 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 or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

17Certainly the state had the right to determine when and if the structure should be removed, but the plaintiffs have presented no evidence to establish a breach of a duty, especially in view of the fact that the structure was noted on official navigational charts. One cannot say that the state acted unreasonably in the case at bar. I find that La. R.S. 9:2798.1 provides further grounds to support a reversal of the trial court’s decision.

Finally, I find that the majority’s reliance upon La. R.S. 30:101.1, et seq., the Louisiana Underwater Obstruction Removal Program, to impose liability upon the state is misplaced. By the clear language of the statute, an “underwater obstruction” is “any obstacle, whether natural or manmade, which impedes normal navigation and commercial fishing on the navigable waters of the state.” La. R.S. 30:101.3(6). By implication, the statute applies to obstructions that are not visible to the eye. The structure in the case at bar was not underwater and was visible to the eye. But even assuming that the statute applies to visible structures, one must examine La. R.S. 30:101.8, which specifically states that the secretary and assistant secretary [of the Department of Natural Resources] shall not be liable for any damages arising from an act or omission if the act or omission is part of a good faith effort to carry out the purposes of ... ” La. R.S. 101.1, et seq. Cf, La. R.S. 9:2798.1. The record before us fails to disclose any evidence that the state did anything that was not a good faith effort to comply with the law, given the limitation of finances of the state, the funds available to the program, and the designation of the structure on official navigation charts.

I conclude, therefore, that general maritime law applied to this accident. Further, the precise location of the obstruction appeared on official nautical charts which Giorgio failed to observe and exercise appropriate caution. See 33 U.S.C. §§ 2001, et seq. No duty existed for the state to light the obstruction. The state is not liable under La. R.S. 9:2798.1 or La. R.S. 30:101.8 because as a matter of common Usense and law the appearance of the obstruction on an official nautical chart was sufficient to warn those traveling upon navigable water of the obstruction. For these reasons, inter alia, we are required by law to reverse and not affirm as the majority so holds.

      . The trial court refers to the accident as a collision but more properly it should be labeled an allision. An allision is the running of one vessel into or against another vessel or object, as distinguished from a collision, i.e., the running of two vessels against each other. But this distinction is not very carefully observed.

      . Sanborn was awarded property damage for the total loss of the "Jo-Le.” Although the vessel had been owned by an L.L.C. in which Giorgio was a member, the claim for the loss of the "Jo-Le” was assigned to Sanborn in a pre-trial settlement agreement reached between the parties.

      . State courts have concurrent jurisdiction by virtue of the "savings to suitors” clause of the Judiciary Act of 1789. In 1948 this provision was amended to read: The district courts shall have original jurisdiction, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. 28 U.S.C.A. § 1333.

      . "[T]he precise extent to which local rules of law will operate to modify the general maritime law applied in the federal admiralty court is by no means clear. Indeed, it would have to be said that there are not even any clearly visible principles governing the nature and degree of permissible modifications of this sort.... [I]t is not clear that state courts are limited with respect to the application of local law to the same degree — whatever it may be — as are the federal admiralty courts.” D. Robertson, Admiralty and Federalism, p. 146 (1970).

      . This is supported by the Louisiana Oilfield Restoration Law, LSA-R.S. 30:80 et seq.

      . This Court also held that the State was not immune from liability under the Recreational Use Immunity Statutes (La. R.S. 9:2791 and La. R.S. 9:2795).

      . All American Crew Boats, Inc. v. State of Louisiana through the Department of Natural Resources, et at, District Court No. 42-849


source: Caselaw Access Project

author: laPARRO, J.

license: Public Domain

text:
    Vereta LEE v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2003 CW 0711R.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 2004.
    Writ Denied Nov. 15, 2004.

      Charles W. Rea, Baton Rouge, for Plaintiff/Respondent Vereta Lee.
    Sanettria R. Glasper, Robert L. Ham-monds, Hammonds & Sills, Baton Rouge, for Defendant/Relator East Baton Rouge Parish School Board.
    Before: PARRO, McDONALD, and McClendon, jj.
   laPARRO, J.

The East Baton Rouge Parish School Board (the school board) is the relator in this writ action; respondent is Vereta Lee. This writ action is before this court on remand from the supreme court, which granted relator’s request for a supervisory writ and remanded the matter to this court for briefing, argument, and opinion.

FACTUAL AND PROCEDURAL BACKGROUND

After notice and a hearing, the school board found Lee guilty of “willful neglect of duty,” suspended her for five years, and barred her from teaching in East Baton Rouge Parish schools. Lee, a tenured teacher with eighteen years’ experience, sought judicial review of this decision with the district court and subpoenaed a school board member for a deposition. The school board moved for a protective order, claiming Lee had no right to present new evidence to the district court, because the district court was sitting in an appellate capacity in reviewing the decision, and because the school board members functioned in a quasi-judicial capacity and were entitled to immunity. Lee claimed the deposition testimony was required to show the district court that, despite what might be indicated by the hearing transcript, there were procedural irregularities that were not and could not be reflected in the record. She said some school board members were totally inattentive, eating snacks and chatting during the hearing, and claimed the depositions would demonstrate that the school board was predisposed to find her guilty, thereby rendering its decision arbitrary and capricious.

The district court heard arguments at the hearing on the motion for a protective order, and summarized its conclusions as follows:

I can’t substitute my opinion for [the school board’s].... I can’t go on the weight of the evidence. I must determine whether there is evidence there. And if there is evidence there upon which they could hang their hat, I have to affirm. So no matter how little evidence is there, if they’re not listening to the other side at all, they may have acted arbitrarily and capriciously. And so the motivations as to going into the hearing, I think, are something to determine whether or not the court can make a decision as to whether the actions were arbitrary or capricious, okay? Sometimes you need to know what was going on in that hearing that is not in the record, and that’s what they’re trying to find out here. They’re trying to find out, were they predisposed, did they pay attention, did they consider these arguments, and that I don’t know until they take the depositions and I have a record to look at that. It goes solely to the [.¡arbitrary and capricious nature of the action of the board, and I think it’s a valid thing to bring up on review. And for that reason, I’m going to deny the protective order. I will allow them to go ahead and take the depositions.

Based on this conclusion, the district court denied the school board’s motion for a protective order, thus allowing the deposition to proceed. Upon the motion of the school board, however, the district court granted a stay to allow the school board to apply to this court for supervisory review. This court denied the writ application, after which the school board applied for a supervisory and/or remedial writ to the supreme court. The supreme court granted the writ and remanded to this court for briefing, argument, and opinion.

ANALYSIS

In Butler v. Iberville Parish Sch. Bd., 93-2291 (La.App. 1st Cir.12/22/94), 648 So.2d 459, the district court did not conduct a hearing and affirmed the school board’s decision based on its review of the transcript of the hearing, exhibits, and briefs. The teacher appealed, alleging, among other things, that she had been precluded from presenting her evidence and getting “full judicial review.” This court stated:

The law is clear that judicial review [by the district court] does not require a trial de novo, but the teacher may offer evidence which does not duplicate that presented at the school board hearing.

Butler, 648 So.2d at 461 (citations omitted). The Butler court cited the Howell case, in which the supreme court stated that under the provisions requiring a “full hearing” at the district court level, “a discharged employee of a school board could present additional evidence to that court.” Howell v. Winn Parish Sch. Bd., 332 So.2d 822, 824-25 (La.1976). This point of law from the Howell decision was cited with approval by the supreme court in the recent cases of Wise v. Bossier Parish Sch. Bd., 02-1525 (La.6/27/03), 851 So.2d 1090, 1098, and Spears v. Beauregard Parish Sch. Bd., 02-2870 (La.6/27/03), 848 So.2d 540, 544 n. 2. Therefore, contrary to the school board’s argument, the district court is authorized to allow a teacher to present additional evidence when seeking judicial review of a school board’s decision.

However, the key factor in this case, differentiating it from the above cases, is that the additional evidence Lee seeks to present is deposition testimony from school board members. The school board claims it performs a quasi-judicial function in reviewing evidence at a hearing and making a decision concerning a teacher’s termination or other disciplinary action. Therefore, it argues that the absolute immunity afforded to judges when performing functions integral to the judicial process should be applied to school board members also in these circumstances, citing Durousseau v. Louisiana State Racing Com’n, 98-0442 (La.App. 4th Cir.12/9/98), 724 So.2d 844, 846, writ denied, 99-0034 (La.2/12/99), 738 So.2d 582. In the alternative, if not absolutely immune, the school board contends there should be a showing of “extreme and extraordinary circumstances” before requiring oral testimony from the decision-makers as to the basis for their opinions, as was held in Gary W. v. State of Louisiana, Dep’t of Health & Human Resources, 861 F.2d 1366 (5th Cir.1988), and the cases cited therein. Finally, the school board argues that if board members were acting improperly during the hearing, Lee should have filed a contemporaneous objection during the proceedings. By failing to do so, she waived her right to complain that the hearing was conducted unfairly.

Addressing the last contention first, we note that although Lee’s petition for judicial review does mention certain actions of the board members, indicating they “ate, drank sodas, and ‘kibitzed’ among themselves,” the crux of her complaint does not involve such activities, which were basically admitted by the school board in its answer. Lee’s more serious allegation is that the board members were “predisposed” to find her guilty of willful neglect of duty because of actions designed to influence their opinion that occurred before the hearing or off-the-record during breaks in the hearing, causing them to ignore her evidence in an arbitrary and capricious fashion. It is not possible to IsQbject during a hearing to something that occurs outside of the hearing. Therefore, we do not find this argument persuasive in this instance.

However, this court finds merit in the school board’s other argument that, because the board members were acting in a quasi-judicial capacity, they are entitled to some measure of immunity from unlimited discovery concerning their decision-making process. We do not agree that absolute immunity is applicable in this situation. Based on our research and the cases cited to us by the school board, it appears that cases applying absolute immunity involve tort suits for monetary damages filed against persons who, while sitting on an administrative board of one kind or another, made judicial or quasi-judicial decisions in their official capacities that cause economic losses to the claimants. See, e.g., Durousseau, 724 So.2d 844 (Louisiana State Racing Commission was immune in its quasi-judicial capacity from former jockey’s claim for money damages for Commission’s allegedly intentional wrongful refusal to reinstate his license); Talbert v. Louisiana State Bd. of Nursing, 03-0258 (La.App. 1st Cir.12/31/03), 868 So.2d 729 (State Board of Nursing was entitled to quasi-judicial absolute immunity from a nurse’s and her husband’s tort damage claims based on the Board’s suspension of her nursing license); Amato v. Office of Louisiana Com’r of Securities, 94-0082 (La.App. 4th Cir.10/3/94), 644 So.2d 412, writ denied, 94-3024 (La.2/3/95), 649 So.2d 410, cert denied, 515 U.S. 1144, 115 S.Ct. 2582, 132 L.Ed.2d 832 (1995) (Commissioner of Securities was absolutely immune from damages claimed for refusing a stockbroker’s registration); Brossette v. City of Baton Rouge, 837 F.Supp. 759 (M.D.La.1993), aff'd, 29 F.3d 623 (5th Cir.1994), cert. denied, 513 U.S. 971, 115 S.Ct. 443, 130 L.Ed.2d 353 (1994) (Alcoholic Beverage Control Board members were entitled to absolute judicial immunity from a tort claim alleging a civil rights violation). Unlike the matter before us, those cases did not involve judicial review of the decisions made by those persons. Nor did those cases involve an attempt to compel testimony from board members involved in making those decisions.

In such cases, like the matter before us, a qualified immunity has been recognized that limits the circumstances under which testimony can be compelled from a quasi-judicial officer and/or limits the scope of any such testimony. Although we have |finot found any published decisions of this court addressing this issue, the federal jurisprudence on this issue was summarized in Standard Packaging Corp. v. Curwood, Inc., 365 F.Supp. 134 (D.C.Ill.1973), as follows:

An exemption from compulsory testimony is recognized in certain situations to protect the integrity and individual responsibility of governmental officials whose duties involve the exercise of judicial and quasi-judicial authority.
* * *
To allow certain exemptions to these officers is not to provide them with a blanket immunity from testimony. Like any testimonial “privilege,” this one must be construed and applied with the greatest care for fear that it be misused or abused. And, indeed, the courts have been most scrupulous in delineating between protected and unprotected testimony on a case-by-case basis. In various instances and circumstances, judges, jurors, justices of the peace, and referees have been compelled to testify.
The essential line of demarcation appearing from the cases is that judicial and quasi-judicial officers may be compelled to testify only as to relevant matters of fact that do not probe into or compromise the mental processes employed in formulating the judgment in question.... Thus, even though a particular inquiry may be factually directed, it may still be objectionable if it invades upon an official’s good-faith decision-making prerogatives. It is apparent, however, that this doctrine does not exempt compulsory testimony as to all factual matters related to those prerogatives.

Standard Packaging, 365 F.Supp. at 135 (citations omitted). This line of demarcation from the Standard Packaging case was recognized as still being the controlling test for compelling testimony from a judicial officer in U.S. v. Edwards, 39 F.Supp.2d 692, 705-06 (M.D.La.1999).

Standard Packaging was also cited in the Gary W. case, in which the court refused to allow the defendant to depose a court-appointed special master concerning the substance of her report before that report became the basis of her formal recommendation to the court. Gary W., 861 F.2d at 1369. Noting that she was acting in a quasi-judicial capacity when she submitted that recommendation, the court stated an examination of her mental processes in making that recommendation would be 17inappropriate, absent any showing of bad faith, improper behavior, or other extreme or extraordinary circumstances. Id. In a case citing this Gary W. test, the court observed that all areas of inquiry that the plaintiff sought from a federal magistrate were related to the magistrate’s mental processes as a judicial officer concerning official duties — an area that, but for the most extraordinary of situations, must be fully protected from outside intrusion. Finding no extraordinary circumstances to justify those inquiries, the court quashed the subpoena. Meyer v. Foti, 720 F.Supp. 1234, 1244 (E.D.La.1989).

These cases suggest to this court that there are actually two tests for determining when to allow testimony from a quasi-judicial officer, depending on which of two types of information is sought. If the information sought concerns relevant matters of fact that do not probe into or compromise the mental processes employed in formulating the judgment in question, the testimony should be allowed. However, if the inquiry concerns whether the officer had some predisposition or pre-commitment as to the judgment, the testimony should be allowed only if the party seeking the information has demonstrated some extraordinary circumstance that might justify such an inquiry.

There is little jurisprudence involving this second situation in the context of compelling testimony from a quasi-judicial officer. However, some guidelines can be determined from cases involving disqualification or recusal of decision makers on the grounds of having pre-judged the matter. In Matter of Rollins Environmental Services, Inc., 481 So.2d 113, 120 (La.1985), the supreme court said a preconceived position concerning law, policy, or legislative facts would not disqualify an administrative decision maker, nor would that person be disqualified simply by prior exposure to adjudicative facts. Nonetheless, disqualification would be appropriate for the administrative decision maker who has prejudged the adjudicative facts in dispute. Elaborating on this point, the court explained that the mere exposure to evidence presented in non-adversary investigative procedures is insufficient in itself to impugn the fairness of the board members at a later adversary hearing. Thus, a line has been drawn between an advance commitment about the facts and some previous knowledge about the facts. Rollins, 481 So.2d at 120-21. Similarly, in Louisiana State Bd. of Med. \pExaminers v. Golden, 94-0922 (La.App. 4th Cir.9/29/94), 645 So.2d 690, 691, writ denied, 95-0106 (La.3/10/95), 650 So.2d 1184, the Fourth Circuit granted a writ and reversed the judgment of the district court, which had ordered the pre-hearing depositions of several board members. The physician sought to determine whether the board members had preconceived positions on abortion that would prevent them from giving him a fair and impartial hearing. Analogizing this situation to the grounds upon which a judge could be recused, the court stated:

There is no authorization for general discovery proceedings to determine if ground[s] for recusation exist. The party must “discover” the grounds on his own .... It would not be sufficient just to allege general bias against a party or an issue. Some particular fact must be alleged that if proven would support a finding of bias.

Golden, 645 So.2d at 691. By comparison, in Rubin v. Lafayette Parish School Bd., 93^73 (La.App. 3rd Cir.12/14/94), 649 So.2d 1003, 1016, writ denied, 95-0845 (La.5/12/95), 654 So.2d 351, a divided court indicated that one factor suggesting the school board’s decision had been tainted was that a number of allegations had been disseminated to the board members prior to the hearing, but these allegations did not form part of the formal charges filed against the teacher. The court stated:

Although the Board was not called to vote on these extraneous allegations, we cannot say they did not affect the Board’s decision to terminate Rubin. The submission of the unscreened statements to the Board further infringed on Rubin’s due process right to know the allegations against her and to defend against only those allegations actually charged.

Rubin, 649 So.2d at 1016.

Applying these considerations to the matter before us, we note that Lee has not demonstrated or alleged any bad faith, improper behavior, advance commitment to a particular result, or other extreme or extraordinary circumstances that would justify an examination into the mental processes of the school board members in reaching their decision. However, Lee apparently seeks factual information from the board members concerning what, if any, information was disseminated to them before the hearing. This inquiry would help her and the court know whether the pre-hearing information was the same as the evidence presented at the hearing or differed from that evidence in some respect. The Rollins case would suggest that such an inquiry, although factual, |nis irrelevant, because the mere prior exposure to factual information does not necessarily imply a predisposition as to the decision. However, such information might assist Lee and the court in determining whether such information could have predisposed the board members toward a particular view of the case. Also, the Rubin case would imply that such an inquiry is relevant to determine whether the teacher has been fully apprised of all the charges leveled against her, or whether other allegations may be lurking in the minds of the board members.

Another line of inquiry might involve the procedures that were used during the tenure hearing. The case against Lee was presented to the school board by one of its attorneys, Ms. Glasper, and procedural matters were handled by another attorney hired by the board, Mr. Grant, who advised the chairman concerning rulings on procedural and substantive matters and virtually presided over the hearing. According to Lee, this situation resulted in “control of the record” by the school board’s attorneys. Lee suggests that school board members appeared to have other questions that they wished to ask at the hearing, but were prevented from asking them by Grant’s requirement that all questions be submitted to him in writing and passed to him for review. Lee also suggests that certain lines of questions were “tag-teamed” out of the record by Glasper’s objecting to them and Grant’s recommending that the objections be upheld. The depositions of school board members could reveal whether any of them had other relevant questions that were foreclosed by the procedures used at the hearing.

The removal of a tenured teacher from office can only be accomplished by following the procedures set out in the teacher tenure law, particularly the provisions of LSA-R.S. 17:443. The teacher tenure law must be liberally construed in favor of teachers, since teachers are its intended beneficiaries. Palmer v. Louisiana State Bd. of Elementary and Secondary Educ., 02-2043 (La.4/9/03), 842 So.2d 363, 369. The teacher tenure law has no provisions indicating whether and under what circumstances the testimony of school board members can be compelled when judicial |inreview of a school board’s decision is sought. Also, there is little jurisprudence from Louisiana’s state courts on this issue in this context. Therefore, the district court had no clear guidelines for its decision, other than its desire to accord Lee her right to full judicial review. Accordingly, we maintain our decision to deny the writ, thus upholding the district court’s ruling to allow the school board members to be deposed. However, in accordance with the views expressed in this opinion, we order the court to limit those depositions to relevant matters of fact that do not probe into or compromise the mental processes employed by the board members in formulating their decision.

WRIT DENIED WITH ORDER.

      . Lee indicated her intent was to depose other school board members also.

      .We note that the district court may have understated its authority in describing the standard for judicial review. On judicial review, the court is to determine whether the action of the school board was (1) in accordance with the authority and formalities of the Louisiana Teachers Tenure Act, and (2) supported by substantial evidence, or conversely, an arbitrary decision and thus an abuse of discretion. Howell v. Winn Parish School Bd., 332 So.2d 822, 825 (La.1976) (emphasis added). There must be a rational basis for the board's determination supported by substantial evidence. Sylvester v. Cancienne, 95-0789 (La.App. 1st Cir.11/9/95), 664 So.2d 1259, writ not considered, 95-3128 (La.1/26/96), 666 So.2d 663.

      . Lee v. East Baton Rouge Parish Sch. Bd., 03-0711 (La.App. 1st Cir.6/16/03)(unpublished writ action).

      . Lee v. East Baton Rouge Parish Sch. Bd., 03-2014 (La.11/14/03), 858 So.2d 428, 429.

      . See LSA-R.S. 17:443(B).

      . In the case of In re Dyer, 95-2297 (La.App. 1st Cir.6/28/96), 677 So.2d 1075, 1078, writ denied, 96-1967 (La.10/11/96), 680 So.2d 641, this court discussed an assignment of error in which the appellants claimed the Commission on Ethics for Public Employees had erred by prohibiting them from taking depositions of its members. The appellants claimed the testimony sought was essential for the determination, of procedural and substantive due process issues and was not sought for the purpose of recusal. In declining to address the issue on appeal, this court stated that the issue was one of several that had been raised in a writ application filed by appellants and had been denied in that respect.

      . LSA-R.S. 17:441-446.

      . School boards are also exempt from the Administrative Procedure Act. See LSA-R.S. 49:951(2) and LSA-Const. art. VI, § 44.


author: JgPETTIGREW, J. LMcCLENDON, J.,

text:
    TERREBONNE PARISH SCHOOL BOARD v. SOUTHDOWN, INC., Shell Oil Company, Davis Oil Company, Union Oil Company of California, Burlington Resources Oil & Gas Company & Mobil Exploration & Producing North America, Inc.
    No. 2003 CA 0402.
    Court of Appeal of Louisiana, First Circuit.
    July 14, 2004.

      Joseph G. Jevic, III, Houma, for Plaintiff-Appellant Terrebonne Parish School Board.
    James R. Swanson, Samuel A. Giberga, Joseph C. Peiffer, New Orleans, for Defendant-Appellee Cemex, Inc. as successor in interest to Southdown, Inc.
    David N. Schell, Jr., New Orleans, for Defendant-Appellee Louisiana Land & Exploration Company.
    Robert B. McNeal, New Orleans, for Defendant-Appellee Mobil Exploration & Producing North America, Inc.
    Elizabeth S. Wheeler, New Orleans, for Defendant-Appellee Shell Oil Company.
    Etienne C. Lapeyre, New Orleans, for Defendant-Appellee Davis Oil Company.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   JgPETTIGREW, J.

Plaintiff school board filed suit and alleged that defendant oil companies engaged in a continuous course of conduct through oil and gas operations, drilling, and/or pipeline activities that has damaged and continues to damage its property. Peremptory exceptions raising objections of prescription were later filed on behalf of several defendants that resulted in the dismissal of said parties. Similar exceptions were thereafter filed on behalf of the remaining defendants that resulted in judgments dismissing of the school board’s remaining claims. From these judgments, the school board has appealed.

FACTS

This is a suit filed by the Terrebonne Parish School Board (“TPSB”) seeking full restoration of its property and/or monetary damages in tort and contract as a result of the erosion and diminishment of a Section 16 tract leased to various oil companies. The TPSB alleges in its Petition For Damages that it is, and has been since the early 1800s, the owner of all of Section 16, Township 18 South, Range 16 East, Terrebonne Parish, Louisiana (“the TPSB property”). Said property is comprised primarily of coastal marshlands. Since that time, the TPSB has administered these and other public trust lands for the benefit of public education in the parish through the granting of mineral leases, trapping leases, and pipeline and canal servitudes. Said oil companies included Shell Oil Company (“Shell’'), Davis Oil Company (“Davis Oil”), Union Oil Company of California (“Union Oil”), Louisiana Land and Exploration Company (“L.L. & E.”), and Mobil Exploration and Producing North America, Inc. (“Mobil”) and/or their predecessors in title.

The TPSB became aware that the section sixteen marshlands under its management had been damaged due to erosion from canals and exploration activities ^undertaken by individual oil and gas firms in connection with agreements made at various times over the past forty years.

COMMENCEMENT OF THE LITIGATION

In an attempt to rectify the damage to its property, the TPSB filed suit in the 32nd Judicial District Court on September 29, 1999, naming various oil companies as defendants. Defendants named therein were Southdown, Shell, Davis Oil, Burlington Resources Oil & Gas Company, Mobil, and Union Oil. The TPSB alleged that in conducting oil and gas exploration activities, the aforementioned defendants had “dredged access canals, constructed well locations, developed production facilities, and/or constructed pipelines and/or constructed reserve and/or disposal pits on the [TPSB] property.” The TPSB claimed that the said “defendants have breached their servitude, right-of-ways, and/or mineral leases by failing to restore the [TPSB] property as near as possible to its original condition.” The TPSB further claimed that this “continuing failure [by defendants] to restore the [TPSB] property has caused and continues to cause severe ecological damage ... by altering and/or destroying the natural hydrology of the [marsh] located in Section 16, in addition to causing loss of acreage due to continuing erosion.”

Claiming that the aforementioned damage had been a gradual and continuing process, the TPSB relied on the doctrine of contra non valentem, and alleged that it did not know and could not have known until within the last year that the failure of the defendants to restore its property was continuing to cause damage, thereby giving rise to a breach of contract claim.

In addition, or in the alternative, the TPSB alleged that the willful and Intentional failure on the part of defendants to abate the continuing erosion coupled with defendants’ failure to restore the property to its original condition constituted continuing tortious conduct for which the defendants were liable in solido, making each defendant liable to 14repair the resulting damage. The TPSB further alleged that the failure by each defendant to remove the access canals dredged, placed, constructed, or erected on its property was a continuing trespass that had caused unreasonable property damage and further constituted a continuing trespass that has precluded the tolling of prescription.

The TPSB prayed for judgment in its favor against defendants for full restoration of its property, or for damages for breach of contract, or for damages for committing a continuous trespass, and for all costs of these proceedings.

ACTION OF THE TRIAL COURT

TPSB later compromised its claims against Union Oil, and through an order signed April 24, 2001, TPSB’s claims against Union Oil were dismissed with prejudice.

On February 22, 2002, the trial court heard arguments on peremptory exceptions raising the objection of prescription that were urged on behalf of Davis and Shell. The trial court later rendered judgment granting said exceptions and dismissing TPSB’s claims against these two defendants on March 7, 2002. On April 5, 2002, the trial court heard arguments on peremptory exceptions urged by Southdown and L.L. & E. together with a motion for summary judgment and peremptory exception as to prescription filed on behalf of Mobil. The trial court later rendered judgment granting said motion for summary judgment and maintaining said exceptions, thereby dismissing TPSB’s claims against these remaining defendants on April 16, 2002. The April 16, 2002 judgment further designated that it and the judgment of March 7, 2002, were final and appeal-able as both effectively dismissed the claims against all defendants.

TPSB filed a petition for a devolutive appeal on April 30, 2002.

ISSUES ON APPEAL

In connection with its appeal in this matter, the TPSB presents the following issues for review and consideration by this court:

1. Whether the district court erred in dismissing [TPSB’s] suit on summary judgment on the grounds that plaintiffs claims have prescribed; and
2. Whether the district court erred in holding that Louisiana’s constitutional prohibition of prescription running against damage claims to State owned lands did not apply.

| ^STANDARD OF REVIEW

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). If the trial court or jury findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

DISCUSSION

In considering the issues set forth on appeal by TPSB, we will consider these issues in reverse order and address the second issue raised by TPSB first.

Applicability of Constitutional Prohibition on Prescription

The TPSB contends that the trial court erred in holding that the constitutional prohibition of prescription claims against lands owned by the State of Louisiana did not apply in this case. Article 12, Section 13 of the Louisiana Constitution of 1974, provides that “Prescription shall not run against the state in any civil matter, unless otherwise provided in this constitution or expressly by law.” An identical provision was found in Article 19, Section 16 of the 1921 Constitution, as well as in Article 193 of the 1913 Constitution and Article 193 of the 1898 Constitution.

In support of this proposition, the TPSB relies on State, through Department of Highways v. City of Pineville, 403 So.2d 49, 52 (La.1981), that cited State v. F.B. Williams Cypress Co., 131 La. 62, 58 So. 1033 (La.1912), for the proposition that “when the state holds title to property, prescription cannot run, notwithstanding the fact that the property is administered by a state agency.”

| ^Defendants respond with argument that said language is merely dicta, and does not adequately describe the holding in F.B. Williams. Defendants assert that the language in F.B. Williams that prescription does not run against the State as trustee does not decide the issue here where the TPSB is the party plaintiff. The point made by the court in City of Pineville was simply that the State does not lose its immunity from prescription for claims that the State itself brings simply because the lands are administered by a state agency. In City of Pineville, the Louisiana Supreme Court held:

[T]he “State,” for the purposes of constitutional immunity from prescription, does not include a state agency which is a body corporate with the power to sue and be sued and which, when vested with a cause of action, is the sole party capable of asserting it. Regardless of its status as an instrumentality of the state, such an agency remains a distinct legal entity subject to claims of prescription except where the law provides otherwise.

State, through Department of Highways v. City of Pineville, 403 So.2d at 52. The State of Louisiana is not a plaintiff in the instant case, and the governing authority of the parish, Terrebonne Parish Consolidated Government, did not file suit on behalf of the State. Instead, the TPSB asserts that it is the owner of all of the TPSB property.

In a similar case in federal court, Terrebonne Parish School Board v. Mobil Oil Corporation, the Fifth Circuit noted that the federal district court held that Louisiana’s constitutional suspension of prescription established in favor of the State pursuant to Article 12, Section 13 of the Louisiana Constitution of 1974, is inapplicable when the suit is brought not by the state, but by a separate state agency such as a school board. See, Terrebonne Parish School Board v. Mobil Oil Corporation, 01-31190 (5th Cir.11/13/02), 310 F.3d 870, 881. In affirming the district court, the Fifth Circuit further noted, “Louisiana’s statutory provision addressing precisely the same kind of restoration claims that the [TPSB] now seeks to prosecute in its own right requires that such suit be brought in the name of the state. See [La. R.S. 41:963].” Terrebonne Parish School Board v. Mobil Oil Corporation, 310 F.3d at 881-82.

Upon review of the record in this matter, the relevant federal and state jurisprudence, and the applicable constitutional provision, we affirm the trial court’s decision to not apply the State’s constitutional immunity from prescription to a suit 17brought not by, or in the name of the State, but rather by a separate state agency such as TPSB pursuant to State, through Department of Highways v. City of Pineville, 403 So.2d at 49 (La.1981) and Terrebonne Parish School Board v. Mobil Oil Corporation, 01-31190 (5th Cir.11/13/2002), 310 F.3d 870.

Applicability of Contra Non Valentem

In maintaining the peremptory exceptions of prescription initially urged on behalf of Davis Oil and Shell, the trial court, upon reviewing the evidence, noted that the TPSB had knowledge of the problem, and had failed to act and that for this reason the doctrine of contra non valen-tem was not applicable.

The trial court declined to apply contra non valentem to the facts presently before the court and adopted the reasoning set forth in the supporting memoranda submitted on behalf of Shell and Davis Oil. In its memorandum in support of its peremptory exception as to prescription, Davis Oil points out that while the TPSB does not state when the damage to its property arose, the TPSB tacitly acknowledges in its petition that the actions by defendants that gave rise to its claims occurred more than ten years prior to the filing of its petition. Davis Oil asserted that the TPSB “has known for decades that access canals dredged in connection with oil and gas exploration activities on sixteenth section lands have been a cause of the progressive conversion of marshland to open water.” In connection therewith, Davis Oil attached a copy of a newspaper article from the Houma Daily Courier dated May 8, 1981, wherein the TPSB decided to reconsider an oil company’s request to dredge a canal that serviced a drilling site, as some school board members feared that dredging would make an already bad erosion problem worse.

Davis Oil also attached a copy of Proceedings of the [Terrebonne Parish] School Board Meeting of August 18, 1981, wherein the TPSB approved the hiring of an engineering firm, T. Baker Smith & Son, Inc., to prepare a report regarding the erosion of marshland in sixteenth section lands. In January, 1982, T. Baker Smith submitted to the TPSB its report entitled, “Preliminary Erosion Study of Section 16 Lands in Terrebonne Parish, Louisiana.” Selected excerpts of the report were also attached to Davis Oil’s memorandum. Said pages indicated that T. Baker Smith found that there had been a | Sdecrease in sixteenth section lands due in part to the breakup of the existing freshwater marsh because of the introduction of saltwater via “navigation, drainage and petroleum related canals.”

At a school board meeting held on August 17, 1982, the TPSB unanimously approved the forwarding of a letter to a representative of the U.S. Army Corps of Engineers announcing that the TPSB had formed a special committee charged with the responsibility of studying, managing, and monitoring the preservation of sixteenth section lands. In March 1993, Coastal Environments, Inc. forwarded a proposal to said committee offering to assist the TPSB in identifying “possible damages” on sixteenth section lands for which the TPSB could seek redress from third parties. The Section 16 Land Committee subsequently decided not to retain Coastal Environments, Inc. for this proposed study.

In 1994, the TPSB received a preliminary plan from the U.S.D.A. Soil Conservation Service to manage land in an area that included seventeen Section 16 tracts in Terrebonne Parish, including the tract at issue in this litigation. The TPSB hired the firm of Morris P. Hebert, Inc., to assess whether said plan would result in the closure of any canals in sixteenth section lands and the resulting economic impact of any such canal closings. Following an inspection of the property, Morris P. Hebert, Inc. prepared and forwarded to the TPSB, in April 1995, a report that noted the existence of “obvious erosion problems.”

On August 19, 1996, the TPSB was advised by its counsel in this litigation that its sixteenth section lands may have a “monstrous amount of damage” as a result of the dredging of access canals by oil and gas exploration companies and that actions should be taken to stop said damage and repair it. Nevertheless, the TPSB waited almost three years before filing the instant lawsuit to recover for the damage to the TPSB property.

Based upon the foregoing facts as set forth in the record, it is clear that the TPSB was advised many times of the damage to its property, and for this reason, the trial court’s decision that contra non va-lentem is inapplicable to the present facts was correct.

| ¡pursuant to our discussion above, we conclude that the constitutional prohibition on prescription and the doctrine of contra non valentem are inapplicable to the TPSB under the facts of this case. Accordingly, we affirm the trial court’s judgment maintaining the various peremptory exceptions as to prescription.

Dismissal of TPSB’s Suit on Summary Judgment

We turn now to the initial error assigned by TPSB. TPSB contends that the trial court erred in granting the motion for summary judgment filed by Mobil. We have heretofore upheld the trial court’s maintenance of defendants’ (including Mobil’s) peremptory exceptions that raised the objection of prescription. For this reason, we pretermit consideration of the trial court’s grant of Mobil’s motion for summary judgment.

CONCLUSION

For the above and foregoing reasons, the judgments of the trial court that maintained the peremptory exceptions as to prescription filed on behalf of defendants are affirmed. All costs of this appeal are assessed against plaintiff, Terrebonne Parish School Board.

AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

LMcCLENDON, J.,

concurring.

I agree with the holding of the majority that the state’s constitutional immunity does not apply in this case. However, I base my opinion on the failure of the Ter-rebonne Parish School Board to offer any evidence that it was not the sole party capable of asserting the causes of action alleged herein. See State, through Department of Highways v. City of Pineville, 403 So.2d 49 (La.1981). In all other respects, I agree with the majority opinion.

      . The sixteenth section of every township was reserved by Congress from among the public lands in newly created states for the support of public education. Title to sections sixteen in Terrebonne Parish evidently passed from the United States to the TPSB sometime during the nineteenth century. See Terrebonne Parish School Board v. Columbia Gulf Transmission Co., 290 F.3d 303, 307 (5th Cir.2002).

      . The petition filed by the TPSB improperly named Burlington Resources Oil & Gas Company as a defendant and alleged that Burlington was the successor of L.L. & E. L.L. & E. filed a peremptory exception raising the objection of prescription and stated that although Burlington. Resources, Inc. acquired L.L. & E., L.L. & E. and Burlington Oil & Gas Company L.P. remain wholly separate and independent subsidiaries of Burlington Resources, Inc.


author: i .McClendon, j. |,PETTIGREW, J.,

text:
    Joseph H. SIMPSON v. Jeannette Rose Kinchen PERRY.
    No. 2003 CA 0116.
    Court of Appeal of Louisiana, First Circuit.
    July 14, 2004.

      Laurie Rolling Hagan, Metairie, Counsel for Defendant/Appellant Jeannette Rose Kinchen Perry.
    William Paul Simpson, Joseph H. Simpson, Amite, Counsel for Plaintiff/Ap-pellee Joseph H. Simpson.
    Before: WHIPPLE, PARRO, PETTIGREW, GAIDRY, and McClendon, jj.
   i .McClendon, j.

By this appeal, a defendant challenges a default judgment, finding her liable for defamation and false light invasion of privacy, and casting her for $50,000 in damages. The salient issue raised on appeal is whether this suit for damages, which is based on allegations contained in another lawsuit, can be instituted before the underlying proceeding is terminated. For the following reasons, we vacate the judgment of the trial court and dismiss the plaintiffs suit without prejudice.

On July 6, 2000, the Succession of Betty Kinchen Bankston was opened in the Twenty-First Judicial District Court in Tangipahoa Parish. Subsequently, Jeannette Rose Kinchen Perry, an heir of Betty Kinchen Bankston, filed a pleading in the succession proceeding, challenging the amount of the legal fee sought by attorney Joseph H. Simpson for his work on the succession. On July 31, 2002, while the succession proceeding was still pending, Simpson filed the instant petition for damages against Perry. Therein, he alleged that various statements made by Perry in the succession proceeding constituted defamation and false light invasion of privacy.

On September 10, 2002, the trial court confirmed a default judgment in favor of Simpson and against Perry in the sum of $50,000. Perry filed a motion for a new trial, which the trial court denied. Perry appealed, challenging the validity of the default judgment. Subsequently, Simpson filed a motion to strike parts of Perry’s brief on appeal. That motion was referred to the merits.

The sole basis for seeking damages herein is the allegation that several statements made in the succession proceeding are defamatory or constitute false light invasion of privacy. It is undisputed that, at the time the instant suit for damages was filed and the default judgment was |3rendered, the underlying action was not terminated. Louisiana courts have consistently held that an action for defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. Loew’s, Inc. v. Don George, Inc., 237 La. 132, 110 So.2d 553, 561 (1959); Nolan v. Jefferson Parish Hosp. Serv. Dist. No 2., 01-0175, p. 8 (La.App. 5 Cir. 6/27/01), 790 So.2d 725, 730; Ballex v. Naccari, 95-0057, p. 2 (La.App. 4 Cir. 6/7/95), 657 So.2d 511, 512; Grant v. Politz, 575 So.2d 915, 917 (La.App. 2 Cir.1991); Thomas v. Mobley, 118 So.2d 476, 483 (La.App. 1 Cir.1960). See also Justice Watson’s concurrence in Union Serv. & Maint. Co., Inc. v. Powell, 393 So.2d 94, 99 (La.1980). This rule allows the underlying litigation to proceed in an orderly manner, without the issue of defamation present. Ortiz v. Barriffe, 523 So.2d 896, 898 (La.App. 4 Cir.), writ denied, 531 So.2d 273 (La.1988); Calvert v. Simon, 311 So.2d 13, 17 (La.App. 4 Cir.1975).

The analysis applied in the jurisprudence cited above concerning the requirement that the underlying proceedings be terminated prior to lodging a claim for defamation is not limited to actions for defamation. It has also been applied by the courts where the allegation was that the underlying lawsuit was frivolous, Interdiction of Thomson, 602 So.2d 300, 301 (La.App. 3 Cir.1992), and where the cause of action was malicious prosecution. Grant v. Politz, 575 So.2d 915, 917 (La. App. 2 Cir.1991). We find the analysis equally applicable to claims for false light invasion of privacy. A claim for false light invasion of privacy arises from publicity that unreasonably places the plaintiff in a false light before the public. In | ¿analyzing a claim for false light invasion of privacy, the three elements to be considered are a privacy interest, falsity, and unreasonable conduct. Perere v. Louisiana Television Broad. Corp., 00-1656, p. 3 (La.App. 1 Cir. 9/28/01), 812 So.2d 673, 676. Clearly, the claim for such damages can only be litigated after the litigant making the statements has been given the opportunity to prove them in the suit in which they were made and has failed to do so. Therefore, considering the above jurisprudence and the nature of this cause of action, we conclude that an action for false light invasion of privacy arising out of allegations made in a judicial proceeding and against a party to that proceeding cannot be brought until that proceeding is terminated.

The trial court refuted the above jurisprudence in his written reasons by stating: “Ordinarily, an action for defamation [or false light invasion of privacy] arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. This rule should not apply to allegations contained in those pleadings which are superfluous, gratuitous, and which include factual allegations which are not germane to any cause of action.” On appeal, Simpson relies on this theory. Initially, without recounting with specificity the pleadings that constitute the basis of this suit for damages, we note that those pleadings set forth facts concerning the work performed by Simpson, the manner in which the work was performed, the disbursement of the succession assets, and the nature and description of the dispute. All of these are an integral part of and germane to the underlying litigation. The trial court cited no support for this alleged exception to the requirement that the underlying litigation be terminated, and we have found none. Furthermore, we believe that such an exception would undermine the policy | ^considerations of said requirement. Therefore, we find that the trial court’s application of this alleged exception is in error, and Simpson’s reliance thereon is misplaced.

Because the causes of action asserted in the plaintiffs petition could not arise prior to the final determination of the underlying case, there currently exists no cause of action for the allegations. On our own motion, we notice that the petition fails to state a cause of action. LSA-C.C.P. art. 927. Therefore, we will vacate the judgment of the trial court and dismiss the plaintiffs lawsuit. Furthermore, having disposed of this case on a procedural basis rather than a substantive basis, we find that the motion to strike portions of Perry’s appellate brief is moot.

For the foregoing reasons, we vacate the judgment of the trial court and dismiss the plaintiffs suit, without prejudice. Additionally, we deny Simpson’s motion to strike. Costs are assessed to Joseph H. Simpson.

MOTION DENIED; JUDGMENT VACATED; CASE DISMISSED WITHOUT PREJUDICE.

PETTIGREW, J., concurs and assigns additional reasons.

WHIPPLE, J., dissents and would affirm the trial court.

GAIDRY and PARRO, JJ., concur.

|,PETTIGREW, J.,

concurring.

I agree with the majority, but I further note the following.

In my humble opinion, the trial court committed manifest error in not granting a new trial due to defective service of process of the original petition upon the defendant.

A return of citation is prima facie evidence of service. Billiot Bros., Inc. v. Bercier, 447 So.2d 1090, 1091 (La.App. 1 Cir.1983). The return of the officer on the citation is given great weight, and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. A return of citation cannot be impeached by the uncorroborated testimony of a single witness, and it cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer. Jenkins v. Capasso, 2002-0625, p. 4 (La.App. 4 Cir. 2/5/03), 836 So.2d 1286, 1288, writ denied, 2003-0904 (La.5/16/03), 843 So.2d 1136.

At the hearing on the motion for new trial, the testimony of the defendant was corroborated in many respects by the deputy who allegedly made the service. The deputy testified he did not know who the defendant was prior to said suit, and could not identify her from pictures or in the courtroom at the time of the hearing. He indicated he served a woman in the front yard of the house, but never verified the woman’s identity. There was a hundred yard gap between the street and the house. He also testified the old farm house was the subject address, when, in fact, the defendant’s residence was in a mobile home behind the farm house.

Following my review of the record, I am of the opinion that the trial court should have granted a new trial based on defective service of process.

      . We note that Simpson clearly has a direct monetary interest in the underlying litigation as an issue has been raised regarding the reasonableness of Simpson's attorney’s fees in the succession proceeding. Further, Simpson's potential cause of action arises from these allegations regarding the reasonableness of the attorney’s fees.

      . Considering our disposition of this issue, the remaining issues raised on appeal are moot.