text:
    CAPITOL HOUSE PRESERVATION COMPANY, L.L.C. v. PERRYMAN CONSULTANTS, INCORPORATED; Mr. M. Ray Perryman; XYZ Insurance Company; and TUV Insurance Company.
    No. 2001 CW 2524R.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.

      Charles S. Lambert, Jr., Baton Rouge, for Plaintiff Capitol House Preservation Company, L.L.C.
    Marc S. Whitfield, Baton Rouge, for Defendants Argosy Gaming Company, Argosy of Louisiana, Inc., Catfish Queen Partnership in Commendam, Jazz Enterprises, Inc.
    Jeanne C. Comeaux, Baton Rouge, for Defendants Ron Johnson, Mark Bradley, Paula Bradley.
    Charles M. Gordon, Jr., Baton Rouge, for Defendants Steve Urie Lodging Systems, Inc.
    L. Rand Dennis, Baton Rouge, for Defendant Louisiana State Police Riverboat Gaming.
    Before: FOIL, PETTIGREW and GAIDRY, JJ.
   _kFOIL,J.

This writ application attacks a trial court’s denial of exceptions urging lack of subject matter jurisdiction and no cause of action. We find no error in the trial court’s ruling, and deny the writ.

FACTUAL AND PROCEDURAL BACKGROUND

The facts forming the basis for the instant appeal have been summarized by this court on two prior occasions, and are as follows: In 1993, three applicants, Lady Luck Baton Rouge Casino, Inc., Jazz Enterprises, Inc., and Louisiana Casino Cruises, Inc., were vying for two riverboat gaming licenses to be awarded in East Baton Rouge Parish. Jazz and Argosy Gaming Company entered into an agreement to submit a joint application for the license as the Catfish Queen Partnership.

Hearings were held in 1994 before the Gaming Enforcement Division of the Louisiana State Police (Division), during which the applicants were afforded an opportunity to make presentations. Perryman Consultants, Inc., which was hired to rank the applicants according to which was best qualified, ranked the Catfish Queen Partnership first, Louisiana Casino Cruises second and Lady Luck third. On July 18, 1994, the Division awarded licenses to Jazz/Catfish Queen and Louisiana Casino Cruises, Inc.

In the order denying Lady Luck’s license application, the Division stated that since the applicants that were ranked first and second in the Perryman study met the requirements of the Louisiana Gaming Act, it was not necessary to rule on Lady Luck’s suitability at that time. It further stated that the license was denied because all 15 licenses authorized by the gaming law had been issued.

Lady Luck filed a motion to have the Division consider its suitability, which was granted. The Division later issued supplemental reasons for the permit denial, finding that Lady Luck was suitable. The Division again noted that Lady Luck ranked third among the applicants. Lady Luck did not appeal the Division’s denial of its permit.

|40n July 10, 1995, Capitol House, as the successor in interest to Lady Luck, filed the instant lawsuit in the 19th Judicial District Court against Perryman Consultants, alleging a violation of the Louisiana Unfair Trade Practices and Consumer Protection Law (UTPL), La. R.S. 51:1401-1419 and negligence. On November 26, 1997, Capitol House amended its petition to add as defendants Jazz Enterprises, Inc., Catfish Queen Partnership, Argosy, and their principals, asserting claims of negligence and unfair trade practices. Specifically, Capitol House claimed the defendants made numerous false and/or misleading representations about themselves and about Capitol House in their application for a license, at various points during the application process, and during the hearings on the applications. Capitol House sought to recover the loss of its investments spent in pursuit of the license, the value of a gaming license, lost profits and future lost profits of its business and riverboat project, as well as attorney’s fees and costs.

The individual defendants filed a peremptory exception urging the exception of prescription. Jazz, Argosy and Catfish Queen filed exceptions of no cause of action, preemption and prescription, all alleging Capitol House’s claims were time barred. The trial court granted the Argosy defendants’ exceptions but denied the remaining defendants’ exceptions. These decisions spurned a writ application and an appeal seeking the supervisory jurisdiction of this court. Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 98-1514 (La.App. 1 Cir. 12/10/98), 725 So.2d 523 (hereafter referred to as Capitol House I) and Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 98-2216 (La.App. 1 Cir. 11/5/99), 745 So.2d 1194, writ denied, 1999-3446 (La.2/11/00), 754 So.2d 937 (hereafter referred to as Capitol House II).

The instant writ application involves defendants’ exceptions of no cause of action and lack of subject matter jurisdiction. Defendants insist that the trial court may not award damages to Capitol House because it lacks original jurisdiction and authority to review the alleged misconduct and | fjto investigate and render a decision as to which applicants should have been awarded a riverboat license. With respect to the no cause of action exception, defendants submit that even if the trial court had jurisdiction over the case, Capitol House is precluded from contesting the decision rendered by the Division because it failed to exhaust administrative remedies regarding the denial of its application for a license.

The trial court denied the exceptions, concluding that although Capitol House’s suit did attack the failure to receive a gaming license, the case was not actually about licensing, but was about monetary damages, a matter within the jurisdiction of the court.

On October 24, 2001, defendants filed a writ application with this court seeking review of the trial court’s ruling on the exceptions. This court denied the writ; however, the Louisiana Supreme Court granted defendants’ writ application and remanded the case to this court for briefing, argument and an opinion. Capitol House Presentation Company, L.L.C. v. Perryman Consultants, Inc., 2002-0906 (La.6/7/02), 818 So.2d 766.

PRELIMINARY MATTERS

Capitol House filed a motion to strike defendants’ reply brief, urging that the response was filed 62 days after its opposition brief, pointing to Rule 2-12.7 of the Uniform Rules — Courts of Appeal, which provides that the reply brief of the appellant shall be filed not later than 10 calendar days after the appellee’s brief is filed. This motion is denied. Rule 2-12.10, which specifically pertains to writ applications, provides that briefs in support of motions or applications for writs shall be filed with the motion or writ application, while briefs in opposition thereto shall be filed prior to decision by the court, or as may be ordered by the court. Therefore, defendants’ reply brief was timely.

However, we grant Capitol House’s request to strike Exhibit B to the writ application in 2001 CW 2532 and references thereto, as this document was not introduced into evidence and was not considered by the trial court. State ex rel. Guste v. Thompson, 532 So.2d 524, 527, n. 2 (La.App. 1 Cir.1988).

SUBJECT MATTER JURISDICTION

Subject matter jurisdiction is the legal power and authority of a tribunal to adjudicate a particular matter involving the legal relations of the parties and to grant the relief to which the parties are entitled. La.Code Civ. P. arts. 1 and 2. The Louisiana Constitution vests district courts with original jurisdiction over all civil and criminal matters, unless there is other jurisdictional authorization in the constitution. La. Const. Art. V, § 16(A). The nature of the relief demanded is determinative of a trial court’s subject matter jurisdiction. Daily Advertiser v. Trans-LA, 612 So.2d 7, 16 (La.1993). This court must ascertain the gravamen of the plaintiffs’ claims and determine whether those claims are within the adjudicative sphere of the trial court or the regulatory agencies charged with issuing gaming licenses. Id. at 18.

Defendants urge that Capitol House’s petition demonstrates that it is contesting the Division’s final regulatory rulings. In order to award damages, the defendants submit, the trial court must first find that the license was wrongfully issued to Jazz/Catfish Queen, and secondly, it must find that the license should have been awarded to Lady Luck. However, defendants assert, the Louisiana Gaming Control Board, as the successor to the Division and Gaming Commission, has exclusive jurisdiction over all aspects of licensing in this state. Because the resolution of licensing and related regulatory issues has been legislatively allocated to the Gaming Control Board, defendants posit, the trial court lacks original subject matter jurisdiction to independently rule on any disputed regulatory decisions rendered by the gaming regulators in this case, including the decision to grant a license to Jazz and deny such to Lady Luck, as well as its decision to clear defendants of all regulatory misconduct asserted by Capitol House.

|7In support of their argument, defendants focus on a footnote in the Capitol House I decision, wherein another panel of this court stated that in order for Capitol House to win on the merits, it would have to show that it should have been awarded the license. This court stated that determination would involve consideration of whether Capitol House met the criteria set forth in the gaming law. Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 725 So.2d at 530, n. 10.

In response, Capitol House stresses that it is seeking monetary damages in a civil lawsuit from its competitor for a license under the UTPL and the tort law, matters that are clearly within the exclusive jurisdiction of the district court. Capitol House relies on language in the Capitol House II opinion, wherein another panel of this court stated, regarding Capitol House’s claims:

The entire dispute arises from alleged machinations in the riverboat — gaming — licensing process, allegations that should have been investigated and addressed by the Louisiana Gaming Control Board, which has exclusive regulatory authority, control, and jurisdiction over all aspects of gaming activities and operations in this state. However, this suit presents a claim for monetary damages, and jurisdiction is properly vested in the district court, which has original jurisdiction over all civil matters.
Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 745 So.2d at 1197-1198. (Footnotes Omitted).

Capitol House submits that it is not requesting regulatory relief in this action — it is not seeking modification or reversal of the licensing decisions, nor is it seeking the award of a license. Rather, Capitol House is asking for compensation for damages allegedly caused to its business by the actions of the defendants. Capitol House insists that defendants are attempting to circumvent the original jurisdiction of the trial court by miseharacter-izing the nature of its demand for monetary damage under the tort and statutory law as a claim for regulatory relief.

We agree with Capitol House’s characterization of the nature of the relief sought. In order to award damages to Capitol House, the trial court need not make a determination that Lady Luck met all of the requirements | sof the gaming law to obtain a license because the Division declared Lady Luck to be a suitable applicant. Thus, this case does not involve licensing matters that are within the jurisdiction of the Louisiana Gaming Control Board, but instead presents a civil claim for monetary damages arising from the alleged misconduct of defendants during the licensing process. Money damages are within the original exclusive jurisdiction of Louisiana’s district courts. Louisiana Horsemen’s Benevolent and Protective Association 1993, Inc. v. Fair Grounds Corporation, 95-1702, p. 4 (La.App. 1 Cir. 4/4/96), 672 So.2d 340, 342, writs denied, 96-1163, 96-1125 (La.6/7/96), 674 So.2d 968, 969. No gaming agency has been granted authority to award money damages. This is clearly a case within the adjudicative sphere of the trial court, and the trial court correctly overruled the exception challenging its subject matter jurisdiction.

NO CAUSE OF ACTION

In their exception of no cause of action, defendants urge that Capitol House may not seek judicial review of any alleged regulatory misconduct committed by defendants because Capitol House failed to exhaust its specific administrative remedies for appealing adverse decisions provided for in the Riverboat Gaming Act. However, the exhaustion doctrine only applies when exclusive jurisdiction exists in an administrative agency and the courts have only appellate, as opposed to original, jurisdiction to review the agency’s decisions. Daily Advertiser v. Trans-LA, 612 So.2d at 27. This doctrine does not apply to the claims for monetary damages sought by Capitol House because only the district court has original jurisdiction over this civil action.

Defendants again urge that Capitol House has failed to state a cause of action in its petition. This court has already ruled in both Capitol House I and Capitol House II that Capitol House’s petition stated a cause of action under the UTPL. Furthermore, this court has recently held that an unsuccessful riverboat license applicant stated a cause of action for unfair trade practices against a competitor who received a riverboat license, [ finding that the unsuccessful applicant was required to expend fees in furtherance of his application for the license. This court held that because the petition stated at least one cause of action, the exception of no cause of action was improper. Copeland v. Treasure Chest Casino, L.L.C., 2001-1122, p. 5 (La.App. 1 Cir. 6/21/02), 822 So.2d 68, 71. Therefore, the trial court correctly overruled the exception of no cause of action.

RES JUDICATA

Two of the defendants, Steve Urie and Lodging Systems, Inc., filed a peremptory exception of res judicata in this court. The exception is based on a complaint filed by Capitol House with the Attorney General that is not in the record but is attached to defendants’ brief. The appellate briefs of parties are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal. J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 8 (La. App 1 Cir. 11/7/97), 705 So.2d 195, 201, writs denied, 1997-3055, 1997-3062 (La.2/13/98), 709 So.2d 753, 754. This court may consider a peremptory exception filed for the first time in this court only if proof of the ground of the exception appears of record. Because proof of the ground of the exception does not appear in the record in this case, the exception is denied. La. Code Civ. P. art. 2163.

CONCLUSION

For the foregoing reasons, the writ application is denied. The exception of res judicata is also denied, and the matter is remanded to the trial court for proceedings consistent with this opinion.

WRIT DENIED; EXCEPTION OF RES JUDICATA DENIED; REMANDED.


source: Caselaw Access Project

author:
JjMICHAEL E. KIRBY, Judge. h GORBATY, J.,
      | MURRAY, J.,

license: Public Domain

text:
    Jocenta H. FERROUILLET Individually and on Behalf of her Minor Son Keith D. Ferrouillet, and Eric M. Ferrouillet, Jr. v. STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Myron Harris. Carl Johnson v. State of Louisiana Through the Department of Transportation and Development, Myron Harris and State Farm Mutual Automobile Insurance Company.
    No. 2002-CA-0576, 2002-CA-0577.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2003.
    Rehearing Denied Feb. 14, 2003.

      Eric M. Ferrouillet, Kevin J. Katner, Ferrouillet Law Firm, P.L.C., New Orleans, Counsel for Plaintiff/Appellee, Jo-centa H. Gerrouillet, et al.
    Richard P. Ieyoub, Attorney General, William S. Culver, Jr., Assistant Attorney General, Louisiana Department of Justice, New Orleans, Counsel for Defendant/Appellant.
    Paul M. Sterbcow, Lewis, Jullman & Sterbcow, New Orleans, Counsel for Plaintiff/Appellee, Carl Johnson.
    Court composed of Judge STEVEN R. PLOTKIN, Judge PATRICIA RIVET MURRAY, Judge JAMES F. MCKAY, III, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY.
   JjMICHAEL E. KIRBY, Judge.

In these consolidated cases, the State of Louisiana Through the Department of Transportation and Development (“DOTD”), appeals a trial court judgment finding it 30% at fault for injuries suffered by plaintiffs Carl Johnson and Jocenta Ferrouillet in a February 15, 1994 automobile accident.

On February 15, 1994, at approximately 4:45 a.m., a vehicle operated by Myron Harris and insured by State Farm Mutual Automobile Insurance Company (“State Farm”) entered the Elysian Fields exit of 1-10 East and collided head-on with a vehicle operated by Jocenta Ferrouillet. Plaintiff, Carl Johnson, was a guest passenger in Harris’ vehicle. In separate actions that were later consolidated, Johnson and Ferrouillet each filed suit against Harris, State Farm and DOTD. Ferrouillet filed her suit individually and on behalf of her minor son, Keith. Ferrouillet’s older son, Eric Ferrouillet, Jr., was also listed as a plaintiff, but dismissed his claim for loss of services before trial began.

Following trial, a jury found Harris and State Farm 70% at fault for the accident, and found DOTD 30% at fault. The jury found no negligence on the part of DOTD, but found that the absence of signs created a defect in the Elysian Fields Lexit ramp for which DOTD was strictly liable. The jury awarded damages totaling $1,121,892.00 to Jocenta Ferrouillet, $166,623.00 to Carl Johnson and $2,500.00 to Keith Ferrouillet. The trial court found that the jury verdict should be made the judgment of the court, and rendered judgment accordingly. Both the DOTD and Carl Johnson subsequently filed motions for judgment notwithstanding the verdict or, alternatively, motions for new trial. The trial court denied the DOTD’s motions, but granted Johnson’s motion for judgment notwithstanding the verdict and increased his general damage award from $5,000.00 to $200,000.00. DOTD appealed.

On appeal, the DOTD first argues that the jury erred in assigning 30% fault to it because the evidence showed that Harris was 100% fault for the accident. In its interrogatories, the jury found that the absence of signs created a defect in the Elysian Fields exit ramp that caused injuries to the plaintiffs. In order for DOTD to be held strictly hable in this case, the plaintiffs had the burden of proving (1) that the thing that caused the damage was in the DOTD’s care, custody and control; (2) that the thing had a vice, ruin, or defect that presented an unreasonable risk of harm; and (3) that the vice, ruin or defect was the cause-in-fact of the plaintiffs damages. Lasyone v. Kansas City Southern Railroad, 2000-2628, PP. 6-7 (La.4/3/01), 786 So.2d 682, 689. To recover, plaintiff bears the burden of proving these elements in the affirmative, and the failure on any one is fatal to the case. Id.

It is undisputed that the exit ramp where the accident occurred was in the care, custody and control of the DOTD. Therefore, the issues before us are | ¡^whether inadequate signage rendered this roadway defective and was a cause of this accident.

Inadequate traffic signs may create an unusually hazardous risk to a driver exercising reasonable care and prudence, and the DOTD may be liable for damage caused by that hazardous condition. Menard v. City of Lafayette, 2001-4, p. 4 (La.App. 3 Cir. 5/23/01), 786 So.2d 354, 357, citing Burge v. City of Hammond, 509 So.2d 151 (La.App. 1 Cir.1987). Furthermore, the DOTD has a duty to maintain the public highways in a condition that is reasonably safe not only for persons exercising care and reasonable prudence, but also for those who are slightly exceeding the speed limit or who are momentarily inattentive. Bullard v. State, Department of Transportation and Development, 98-1942 (La.App. 1 Cir. 11/5/99), 744 So.2d 212. However, the scope of DOTD’s duty to maintain highways in a safe manner does not include the risk of injury or death caused by the gross negligence of a third party motorist. Curry v. Johnson, 590 So.2d 1213 (La.App. 1 Cir.1991).

The breach of duty is a question of fact, or a mixed question of law and fact, and the reviewing court must accord great deference to facts found and inferences drawn by the finder of fact. Harvey v. State, Department of Transportation and Development, 2000-1877, p. 3 (La.App. 4 Cir. 9/26/01), 799 So.2d 569, 573, writ denied, 2002-0003 (La.3/15/02), 811 So.2d 910. Causation is a question of fact and the trier of fact’s determinations are entitled to great weight and cannot be disturbed absent manifest error. Id.

The evidence showed that as Harris exited the truck stop parking lot, he turned in a slightly southbound direction while on one of the northbound lanes of Elysian Fields. He crossed Elysian Fields in a diagonal direction facing |4northbound traffic, and then crossed a divider lane marked with white stripes and reflective markers before reaching the bottom of the Elysian Fields I — 10 East exit ramp. He entered the exit ramp and drove up the ramp until his car collided head-on with a car driven by Jocenta Ferrouillet.

The plaintiff and the DOTD both presented the testimony of experts in the field of traffic safety and engineering. Dr. Olin Dart was accepted as an expert in traffic engineering and traffic safety. Dr. Dart said that after plaintiff retained him in May 1994, he went to the accident site and took measurements and photographs and evaluated the site. The plaintiff introduced those photographs into evidence. Dr. Dart studied the layout of the design of the ramp where the accident occurred and the traffic control devices at that location, where the Elysian Fields exit from I-10 East merges with northbound Elysian Fields Avenue. He concluded that this location was unsafe and had inadequate traffic control devices to prevent the type of accident that occurred. When asked if there were signage' to prevent a motorist from coming out of the Mardi Gras Truck Stop and turning the wrong way, Dr. Dart testified that signage itself cannot prevent someone from doing something wrong. However, he stated that if a sign were there and a motorist had the opportunity to evaluate the sign, hopefully that motorist would make the right decision.

Dr. Dart testified that the exit ramp in question was not uncommon, but the manner in which traffic from the 1-10 East exit ramp at Elysian Fields merges into Elysian Fields northbound in the inside left lane is unique. His opinion is that DOTD should have added the following signs: 1) a “No Left Turn” sign at the truck stop exit, 2) a one-way sign on the median of Elysian Fields pointing northbound, 3) a “Do Not Enter” sign at the base of the exit ramp, and 4) a “Wrongs Way” sign further up the ramp. His opinion was that the DOTD’s failure to place either one or a combination of these signs rendered the area of the bottom of the ramp unreasonably dangerous, especially for motorists coming out of the truck stop.

Dr. Dart explained that the Manual on Uniform Traffic Control Devices (“MUTCD”) was compiled and is periodically revised by a national committee on the subject of how traffic signs, traffic signals and pavement markings should be placed on roadways. He stated that Louisiana has adopted the provisions of the national manual verbatim. There is no provision in the manual dealing with the placement of signs for the specific type of exit ramp at issue in this case. The sections of the manual covering “Do Not Enter” signs in general state that such signs should be conspicuously placed to prohibit traffic from entering a restricted roadway section. Dr. Dart said this is advisory language as to what is recommended, but the manual does not make the placement of such signs mandatory. Regardless of the lack of any requirement in the MUTCD to place signs at this exit ramp, Dr. Dart still opined that the failure to put a “Do Not Enter” or “Wrong Way” sign at the bottom of the exit ramp at issue rendered the ramp unsafe.

Dr. Dart’s opinion is that the DOTD should have installed one-way signs even though Elysian Fields is a large roadway with three northbound lanes and three southbound lanes and a middle lane with markings on the pavement. He based that opinion on the fact that there is a lot of traffic coming out of the Mardi Gras Truck Stop onto Elysian Fields. He said that a driver coming out of the truck stop and looking for a way to get back on I — 10 East would not have a sign at that location telling him how to do so. Dr. Dart said that a driver coming out of the |fitruck stop would have to either go ten blocks north, turn right onto 1-610 and merge into I — 10 East, or go up eight blocks and make a U-turn to get back to the I — 10 East onramp.

On cross-examination, Dr. Dart said that the MUTCD does not mandate “No Left Turn” signs at the driveway for this truck stop. The MUTCD also does not mandate “One-Way” signs opposite the driveway of the truck stop. The MUTCD does not mandate “Do Not Enter” signs for this particular type of exit ramp coming off I-10 and merging into Elysian Fields. Rather, the language in the MUTCD regarding these types of signs is permissive only. Dr. Dart testified that he considered the placement of such signs in this type of area to be good practice, but the law does not require them. He admitted that the design of the exit ramp at issue is acceptable by design standards.

Dr. Joseph Blaschke testified on behalf of the DOTD, and was accepted as an expert in highway design, highway safety and traffic control devices. His opinion is that there is nothing wrong with the design of the exit ramp off I — 10 onto Elysian Fields. He said it is unique, but not unusual, and that many similarly designed ramps can be found in some of the older cities in the United States where a newer freeway system had to be built to fit in with an existing network of streets. Dr. Blasehke said none of the signs recommended by Dr. Dart are mandatory under the MUTCD. He said it is not uncommon to take an exit ramp and end up on the inside left lane of a street, such as is the case with the exit ramp at issue. He said he does not consider the area where the driveway of the truck stop meets Elysian Fields to be an intersection in the commonly understood use of that word.

Dr. Blasehke stated that he disagreed with Dr. Dart’s opinion that “No Left Turn” signs should have been placed at every driveway of the truck stop. He said |7that the driveway of the truck stop intersects with a divided arterial street, so it should not be confusing to drivers to know which direction they should go. He said the only way he would recommend putting such a sign is if there were proven problems with people turning-left and traveling on the wrong side of the street. He stated that if there were a requirement to put “No Left Turn” signs any time a driveway runs into a divided arterial street, there would be hundreds of thousands of these signs in the City of New Orleans, and thousands in the downtown area alone.

He also disagreed with Dr. Dart’s opinion that a “One-Way” sign should have been placed on the divider in the middle of Elysian Fields because this is not a one-way street; rather, it is a two-way street with a divider in the middle. Dr. Blasehke disagreed with Dr. Dart’s opinion that “Do Not Enter” and ‘Wrong Way” signs should have been placed by the exit ramp because it is very difficult for any driver to make the maneuver to enter the exit ramp. Furthermore, he said that not only does the law not require such signs, but also placement of such signs could confuse a driver by making him think he is on the right side of the road because he has signs facing him.

Dr. Blasehke said that the only way for a driver to enter the exit ramp at issue is to be going the wrong way on Elysian Fields. He said a driver coming out of the truck stop onto Elysian Fields could tell he has to turn right because the overhead traffic signs are facing drivers going in that direction, whereas if a driver turned left he would be facing the backs of signs and know that he was going in the wrong direction. Dr. Blasehke stated that the police report taken after the accident indicated that the area was lighted continuously-

IsDr. Blaschke’s opinion is that the cause of this accident was Mr. Harris’ entering the ramp the wrong way. His opinion is that there was no defect in the exit ramp that caused or contributed to this accident. His opinion is also that there was no defect in the signs and traffic information in the area that caused or contributed to the accident. He said any driver who would turn left onto Elysian Fields when coming out of the truck stop and enter the exit ramp is not an alert driver.

He acknowledged the testimony of the assistant manager of the truck stop who stated that there were two other accidents in the five-year period following this accident where drivers turned left onto Elysian Fields from the truck stop driveway and entered the exit ramp. However, he said that information alone would not be enough for him to recommend extra signage in this area. He said he would need to know what the contributing factors to the other accidents were, and find out whether additional signs would have made a difference.

At trial, the issue of Myron Harris’ alleged impairment at the time of the accident was addressed. Harris testified that in the weeks leading up to the accident, he was an occasional cocaine user and a daily marijuana user. He said that prior to the early Tuesday morning accident of February 15, 1994, he had not used cocaine since the previous Saturday or Sunday. He said he had last used marijuana on that previous Sunday night. He claims that from the time he woke up on Monday, February 14th until the accident in the early morning hours of the 15th, he had not used any cocaine or marijuana. Mr. Harris said that he only had one beer from Monday morning until the accident early Tuesday morning. He said that he stayed out in the French Quarter until shortly before the accident, but that he did not drink any alcohol after midnight. He said he bought some beer at the truck | flstop right before the accident, but he not consumed any of it before the accident. Mr. Harris’ testimony indicated that he had been awake for twenty consecutive hours at the time of the accident.

On cross-examination, Mr. Harris admitted that he normally shared five to ten marijuana cigarettes a day with friends. When asked at his earlier deposition about how much marijuana he smoked on the Sunday before the accident on Tuesday morning, his response was “I would smoke weed basically all day.” Also on cross-examination, Harris admitted that before he left the truck stop, he saw the divider lane that separated the far left northbound lane of Elysian Fields from the other two northbound lanes but he decided to drive across that divider lane to get to the far left lane, which he thought was the entrance ramp to the I — 10.

Dr. William George was accepted by the court as an expert in the field of pharmacology and toxicology. He was hired by the DOTD to analyze toxicology tests performed on Myron Harris after the accident in order to determine his degree of impairment and whether that impairment had an impact on him at the time of the accident. He said laboratory tests performed on Mr. Harris at Charity Hospital 1 /£ hours after the accident were positive for cocaine and marijuana. He said that based on the level of cocaine in Mr. Harris’ system, his opinion was that he had used cocaine within 1/é to 2 days before the accident. He said the level of marijuana in Mr. Harris’ system showed that he was an active user. Mr. Harris’ blood alcohol level was .014, which Dr. George said showed the presence of alcohol but was not enough for Mr. Harris to be classified as driving while intoxicated.

Dr. George’s opinion is that Myron Harris was very impaired at the time of the accident. His further opinion is that this impairment affected Mr. Harris’ |inability to drive an automobile. He stated that a person could be impaired without being intoxicated. His opinion is that Mr. Harris’ impairment was a significant contributing factor in the accident.

Dr. George analyzed laboratory tests performed on Myron Harris shortly after the accident and concluded that he was impaired at the time of the accident, and that this impairment affected his ability to drive an automobile. At the time of the accident, Mr. Harris had cocaine, marijuana and alcohol in his system, and he had been awake for twenty hours straight. By his own admission, he saw the divider lane separating the ramp lane from the other two northbound lanes of Elysian Fields, yet he chose to drive across the divider lane to get to what he thought was an entrance ramp. The photographs introduced into evidence show that the divider lane was painted with white striping and lined with reflective markers. The photographs also show that Mr. Harris was faced with the backs of the overhead travel signs when he pulled out of the truck stop parking lot and crossed the divider lane before entering the exit ramp.

We find that Mr. Harris was grossly negligent in the operation of his vehicle and that his negligence was the sole cause of the accident that resulted in injuries to plaintiffs. Even plaintiffs expert, Dr. Dart, stated that signage alone could not prevent a driver from doing something wrong. Mr. Harris’ actions cannot be classified as momentary inattentiveness. He made a series of negligent choices, including driving while impaired, crossing a clearly marked divider lane on a major thoroughfare, and ignoring the fact that he was facing the backs of overhead travel signs when he turned out of the truck stop parking lot. Despite being faced with the backs of these overhead signs, which should have signaled to Mr. Harris Inthat he was traveling in the wrong direction, he proceeded to enter the exit ramp and kept driving up that ramp until the collision.

We find that the jury erred in finding that inadequate signage was a cause of this accident, and the trial court erred in adopting this jury finding as the judgment of the court. The evidence in this case established that the sole cause of the accident was Mr. Harris’ grossly negligent operation of his vehicle. The judgment of the trial court assessing liability against DOTD was manifestly erroneous and is hereby reversed.

DOTD also sets forth several assignments of error regarding quantum. However, our determination that DOTD is not liable for plaintiffs’ damages renders those issues moot.

For the reasons stated above, the judgment of the trial court finding the DOTD liable for 30% of plaintiffs’ damages is reversed. Judgment is hereby rendered finding defendant Myron Harris 100% liable for the plaintiffs’ damages from the accident of February 15,1994.

REVERSED AND RENDERED.

GORBATY, J., dissents with reasons.

MURRAY, J., dissents.

h GORBATY, J.,

Dissents with Reasons.

I respectfully dissent. An appellate court may not set aside a trial court’s findings of facts in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a -reasonable one, after reviewing the record in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). Even where the appellate court believes its inferences are more reasonable than the factfinder’s, reasonable determinations of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Further, the trier of fact must evaluate conflicting expert opinions in relation to all of the circumstances of a case. Where there are two permissible views of evidence, the factfinder’s choice cannot be manifestly erroneous or clearly wrong. Philips v. Bener, 2000-0103 (La.App. 4 Cir. 5/16/01), 798 So.2d 41.

In this case, the trier of fact chose to rely upon the testimony of Dr. Dart, which provided an adequate basis for their findings. In light of the evidence and testimony adduced at trial, the jury’s determinations were not manifestly erroneous. As such, this court should not substitute its judgment for that of the |¿jury and trial court. Accordingly, for these reasons, I would affirm the judgment of the trial court.

| MURRAY, J.,

Dissenting.

As Judge Gorbaty points out in his dissent, there is a factual basis for the jury’s conclusion that the lack of signage was a contributing cause of this accident.

I,therefore, respectfully dissent.

      . This opinion was signed by Judge Steven R. Plotkin prior to his retirement on December 31, 2002.

      . Because the accident in this case occurred prior to November 23, 1995, the effective date of the reenacted version of La. R.S. 9:2800, the plaintiffs did not have to satisfy the notice requirements of that statute. See, Jacobs v. City of Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14.


author: J^CLARENCE E. McMANUS, Judge.

text:
    H. Thomas BOURGEOIS v. LOUISIANA STATE GAS CORPORATION, and ABC Unknown, Defendants.
    No. 02-CA-787.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Rehearing Denied Feb. 18, 2003.

      Anthony J. Nobile, Martin, Himel, Pey-tavin & Nobile, Luteher, LA, for plaintiff-appellee.
    John M. Wilson, Jonathan A. Hunter, J. Patrick Morris, H.S. Bartlett III, Liskow & Lewis, New Orleans, LA, for defendant-appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

STATEMENT OF THE FACTS

H. Thomas Bourgeois (“Bourgeois”) and four siblings own property along the Mississippi River in St. John the Baptist Parish (“the Parish”). This property is adjacent and upriver to the property owned by Nalco Chemical Company (“Nal-co”). Bourgeois lives on the property which he partially owns. In 1987, Nalco and Louisiana State Gas Corporation (“LSGC”) contracted for LSGC to supply natural gas to Nalco’s plant via a pipeline. Originally, the pipeline was to be laid near Plantation Oaks subdivision. After much protest, a new route was proposed which involved the pipeline being laid along Highway 44. The pipeline was to be in the highway right of way and would run along Bourgeois’ property.

In 1988, before construction began, LSGC sought a Project Permit from the Louisiana Department of Transportation and Development (DOTD). LSGC also sought a letter of no objection from the Parish and an Order from the Pipeline Division of the Louisiana Office of Conservation.

1 oOn May 2, 1988, LSGC received the letter of no objection from the Parish. On May 18, 1988, the DOTD issued a Project Permit and on May 27, 1988, LSGC received an Order from the Office of Conservation.

After receiving the above permits, but prior to construction of the pipeline, LSGC sent out a surveying crew. When the crew was performing work near Bourgeois’ property, he confronted them and asked what right they had to be on his property. He then moved his truck to block the surveying instruments. Edward Conder (“Conder”), Project Engineer and field liaison to LSGC, went to the scene and talked to Bourgeois. Conder told Bourgeois that the project permit and letter of no objection provided authority to construct the pipeline. Bourgeois stated he believed the proposed route was not within the right of way, but was on his property. Conder explained to Bourgeois why the route was in the right of way. Bourgeois made no further objection at that time. Conder then told him that the construction crew would be there in a few weeks. Again, Bourgeois did not object. Conder then reported the incident to John Raber, manager of engineering for LSGC.

LSGC began construction of the pipeline on June 16, 1988. On that day, work was performed on Bourgeois’ property. Con-der was present and saw Bourgeois arrive home, while the construction was in progress. Bourgeois never approached anyone and construction was completed. The pipeline was put into service on June 16, 1988.

On July 11, 1988, Bourgeois called Con-der to express his dissatisfaction with the post-construction clean-up. On July 13, 1988, Bourgeois’ attorney, Fred DeFran-cesch wrote a letter to LSGC questioning the presence of the right of way. Mr. DeFrancesch sent another letter on November 9, 1988 to LSGC regarding the right of way stating that title research showed only one reference to the highway department. The letter further stated that if the right of way exists, it is only for | maintenance of the shoulder, which can only be three feet and would have been acquired through acquisitive prescription.

Bourgeois filed a Petition for Damages on May 12, 1989 alleging LSGC committed trespass. On December 28, 2001, the trial court issued a judgment as to the issue of liability in favor of Bourgeois. The trial court found that there was nothing in the record which indicated that the DOTD claimed ownership of the right of way. Further, there was no evidence of adverse possession by the DOTD, which is a prerequisite of acquisitive prescription. The trial court also found that Bourgeois’ consent, as owner of the property, was a necessary prerequisite and his consent was not obtained. Under the St. Julien Doctrine, the trial court found that Bourgeois appropriately contested the construction. The trial court further found that it could not conclude that LSGC acted in good faith in obtaining the permits and letters.

LSGC now appeals alleging five assignments of error. First, LSGC argues the trial court erred by inverting the burden of proof on the element of ownership when Bourgeois failed to present evidence of ownership and LSGC presented evidence questioning the ownership. Second, LSGC contends the trial court erred in applying the acquiescence prong of the St. Julien doctrine by relying on Bourgeois’ post-construction protest. Third, LSGC contends the trial court erred in finding that Bourgeois’ actions to protest the pipeline construction were adequate to negate the St. Julien doctrine. Fourth, LSGC argues that the trial court erred in applying the good faith prong of the St. Julien doctrine by examining LSGC’s good faith in obtaining the permits and letters rather than the good faith in possessing that portion of the right of way on with the pipeline was constructed. And finally, LSGC contends the trial court erred in finding that LSGC did not act |Kin good faith when the evidence shows that LSGC reasonably believed it had authority to construct the pipeline.

DISCUSSION

LSGC argues that Bourgeois presented no evidence of ownership of the property at trial and the trial court incorrectly applied the burden of proving that ownership. The trial court’s findings are reviewed under a manifest error standard by this Court. Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court may not set aside the trial court’s findings in the absence of manifest error or unless the finding is clearly wrong. Id.

In this case, the trial court found that Bourgeois owned the property in question. At trial, Bourgeois testified that he owned the property and he explained how he had obtained the property and the extent of the boundaries of the property. Bourgeois’ former attorney, Fred DeFran-cesch, testified that he had performed the title search in the public records. He concurred that Bourgeois owned the property. The only argument LSGC made at the trial was that the DOTD had acquired the property in question by acquisitive prescription. LSGC presented no other evidence that Bourgeois was not the owner of the property. The trial court rejected LSGC’s argument regarding the DOTD’s possible acquisition of the property finding that the DOTD was not a party to the action and had not asserted this claim at any other time. Further, the trial court found no evidence of adverse possession, which is a prerequisite to acquisitive prescription.

We agree with the trial court and reject LSGC’s argument regarding the DOTD’s acquisition of the property. We also reject LSGC’s argument that the trial court inverted the burden of proof of ownership. The trial court listened to the evidence presented by Bourgeois and LSGC and concluded that Bourgeois owned the property. As a result, we find no error in the trial court’s conclusion that Bourgeois owned the property in question.

| (¡Next, LSGC argues that Bourgeois gave it a right of way for the pipeline by not protesting prior to or during construction, as required by LSA R.S. 19:14, and thus, LSGC was in good faith believing no further right of way was necessary. The trial court found that Bourgeois’ consent in this matter was a prerequisite to LSGC constructing the pipeline on his property. LSGC argued that LSA R.S. 19:14 applied and relieved the necessity for consent because Bourgeois didn’t protest. LSA R.S. 19:14 provides, in part:

... In the case where any corporation referred to in Section 2 of this Title has actually, in good faith believing it had the authority to do so, taken possession of privately owned immovable property of another and constructed facilities upon, under or over such property with the consent or acquiescence of the owner of the property, it will be presumed that the owner of the property has waived his right to receive just compensation prior to the taking, and he shall be entitled only to bring an action for judicial determination of whether the taking was for a public and necessary purpose and for just compensation to be determined in accordance with Section 9 hereof, as of the time of the taking of the property, or right or interest therein, and such action shall proceed as nearly as may be as if the corporation had filed a petition for expropriation as provided for in Section 2.1 of this Title.

This statute has come to be known as the “St. Julien” doctrine, since it was first enumerated in St. Julien v. Morgan’s Louisiana & Texas Railroad Co., 35 La.Ann. 924 (1883). According to this doctrine, if the landowner fails to protest prior to or during construction, the owner is deemed to have waived his right to contest and receive compensation for the taking. In this case, the trial court found that Bourgeois had protested the construction of the pipeline. Therefore, the trial court found the St. Julien doctrine did not apply. Again, we find no error in the trial court’s finding that Bourgeois timely protested the construction of the pipeline and therefore, LSA R.S. 19:14 does not apply. Thus, the trial court correctly held that Bourgeois’ consent was a prerequisite to the construction of the pipeline. As a result, we also agree with the trial court that LSGC did not act in good faith in obtaining the necessary consents and permits before construction of the pipeline. |7Had LSGC properly checked the public records, it would have known that Bourgeois owned the property and the DOTD had no interest in the property where the pipeline was laid. Further, this work differed from previous work performed by the DOTD and the Parish because it did not benefit Bourgeois, as property owner. Therefore, LSGC could not rely on this previous work to serve as a blanket consent by Bourgeois to lay this pipeline on his property.

Accordingly, we affirm the trial court’s judgment in favor of H. Thomas Bourgeois and assess all costs of this appeal to the defendant, Louisiana State Gas Corporation.

AFFIRMED.

      . St. Julien v. Morgan’s Louisiana & Texas Railroad Co., 35 La. Ann.924 (1883); LSA R.S. 19:14.