author: PER CURIAM. VICTORY, J., WEIMER, J.,

text:
    In re John B. WHITAKER.
    No. 2006-B-2222.
    Supreme Court of Louisiana.
    Feb. 2, 2007.

      Charles B. Plattsmier, Baton Rouge, Julie B. White, for Applicant.
    John B. Whitaker, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

hThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John B. Whitaker, an attorney licensed to practice law in Louisiana.

INTRODUCTION

These attorney disciplinary charges reach the court in a somewhat unusual posture, as the alleged misconduct occurred while respondent was serving in the office of judge of the Tenth Judicial District Court for the Parish of Natchitoches, State of Louisiana. During respondent’s tenure as judge, the Judiciary Commission of Louisiana commenced an investigation into allegations of judicial misconduct on his part; however, the investigation was not completed prior to respondent’s retirement from the bench in 1999. Pursuant to Supreme Court Rule XXIII, § 23 and Supreme Court Rule XIX, § 6(B), the matter was transferred to the ODC. After investigation, the ODC filed the instant formal charges.

UNDERLYING FACTS

Count I

On December 2, 1997, respondent sent a letter to the Chief Disciplinary Counsel in support of a disbarred lawyer who was applying for readmission to the | «.practice of law. The letter of recommendation was written on respondent’s official court stationery. Such conduct is a violation of Canon 2B (a judge shall not lend the prestige of judicial office to advance the private interest of the judge or others) of the Code of Judicial Conduct.

Count II

During a sworn statement taken by the Judiciary Commission’s Office of Special Counsel in February 1999, respondent admitted that while he was a judge he frequently issued orders and directives, both verbal and written, instructing the Natchi-toches Parish Sheriffs Office to perform actions when there were no cases pending, no motions or rules filed, and no hearings set. Such conduct is a violation of Canons 1 (a judge shall uphold the integrity and independence of the judiciary), 2 (a judge shall avoid impropriety and the appearance of impropriety in all activities), and 3 (a judge shall perform the duties of office impartially and diligently) of the Code of Judicial Conduct.

DISCIPLINARY PROCEEDINGS

In 2005, the ODC filed two counts of formal charges against respondent, alleging that his conduct constituted a violation of Rule 8.4(d) (conduct prejudicial to the administration of justice) of the Rules of Professional Conduct, as well as the relevant canons of the Code of Judicial Conduct.

Respondent filed an answer to the formal charges and admitted that he wrote a letter of recommendation on his official court stationery; however, he said that he Iswould not have done so had he “known that the code of ethics had been amended to prohibit letters from judges to the Disciplinary Board.” Concerning the allegation that he improperly issued orders directing the sheriff to perform certain acts, respondent admitted that he issued such orders, but claimed that his doing so “may or may not be an ethics violation.” Respondent further explained:

Orders and directives to the Sheriff, on most occasions, were initiated by the Sheriff, whose office these victims came to for help. I would be asked to provide the Sheriff with something in writing if what they wanted to do was proper. To the best of my knowledge, I never issued an authorization to the Sheriff to do anything that he did not already have the authority to do. Most of these orders involved the protection of women who had been forced out of their homes while they returned to their homes to retrieve their medications and a few clothing and personal items for themselves and/or their children. A few of the authorizations dealt with the return of stolen property and the return of children to their custodial parent. In all of these instances, no unresolved issue of ownership or custody existed.

Formal Hearing

This matter proceeded to a formal hearing. The ODC introduced documentary evidence in support of the formal charges and called several witnesses to testify concerning the allegations of Count II, including Brad Raynes, a former deputy of the Natchitoches Parish Sheriffs Office; Boyd Durr, the former sheriff of Natchitoches Parish; and Victor Jones, the current sheriff. Respondent testified on his own behalf and on cross-examination by the ODC.

Hearing Committee Recommendation

At the conclusion of the hearing, the hearing committee issued its report. The committee noted that the underlying facts are not in dispute.

|4In Count I, respondent admitted that he wrote a letter to the Chief Disciplinary Counsel supporting a lawyer’s readmission to the bar. The letter was written on respondent’s official letterhead and in his capacity as judge of the Tenth Judicial District Court.

In Count II, the exhibits introduced at the hearing and the testimony of all of the witnesses confirmed that while respondent was a judge he issued orders and directives, both verbal and written, which instructed the Natchitoches Parish Sheriffs Office to perform actions when there were no causes pending, no motions or rules filed, and no hearing set. These directives and orders covered a wide range of situations, including child custody, community property disputes, return of separate property, release of a vehicle from a mechanic’s shop, the arrest of a probationer, return of a vehicle alleged to be held by someone who did not have authority to hold said vehicle, and others. The sheriff testified that at times he felt he needed orders from respondent to comply with requests being made by citizens and that he would refer those citizens to respondent’s office; if respondent gave the sheriff a verbal or written order or directive, he would then attempt to carry it out. On occasion, the sheriff would request a written authorization from respondent, believing that he needed additional authority before he could perform certain acts. It was respondent’s position that the directives and orders he issued were not in violation of the Code of Judicial Conduct since the sheriffs office already had authority to perform the actions that were being taken.

Based on these findings, the committee determined that respondent violated Rule 8.4(d) of the Rules of Professional Conduct in both Counts I and II. With regard to Count II, the committee found that respondent violated his duties to the public and to the legal system, and that he acted knowingly. The committee further found that respondent’s “actions resulted, if not in the actual injury to individuals, certainly had |fithe potential for injury, and the loss of personal freedom and property.” The committee did not find that respondent’s actions “were taken for personal gain.”

Based on this reasoning, the committee recommended that respondent be suspended from the practice of law for ninety days “in the event that he seeks active status as a practicing attorney at any point in the future.”

The ODC objected to the leniency of the sanction recommended by the committee, arguing that disbarment is appropriate.

Disciplinary Board Recommendation

With regard to Count I, the disciplinary board found that respondent wrote a letter on his official stationery to the Chief Disciplinary Counsel on behalf of a lawyer who was seeking readmission to the bar. At the time of the letter, Canon 2B of the Code of Judicial Conduct prohibited a judge from providing letters of recommendation on official stationery. The board concluded respondent’s actions in writing the letter on court letterhead clearly violated Canon 2B by lending the prestige of his office to further the cause of an individual lawyer.

As to Count II, the board determined that respondent engaged in acts that circumvented the legal system. It found respondent ordered citizens to be picked up by the sheriff and detained without following the procedure prescribed by the Louisiana Code of Civil Procedure relative to civil contempt. Likewise, it found he sidestepped the Louisiana Code of Criminal Procedure regarding the proper issuance of arrest warrants and the proper handling of probation revocation matters. Although it recognized respondent had jurisdiction to handle custody matters, it noted he failed to require compliance with the law regarding alleged violations of custody orders and | ^related issues. The board agreed with the hearing committee that there is no evidence of bad faith on respondent’s part, but citing In re: Quirk, 97-1143 (La.12/12/97), 705 So.2d 172, found his continued and repeated issuance of improper orders and directives to the sheriff formed a pattern of legal error, which amounts to judicial misconduct.

By improperly writing a letter of recommendation, disregarding lawful procedure, and issuing directives and orders based on contact with interested persons or the assertions of the sheriff, the board found that respondent failed to maintain high standards ■ of conduct, failed to avoid impropriety, and failed to perform the duties of his office impartially, all in violation of Canons 1, 2, and 3 of the Code of Judicial Conduct and Rule 8.4(d) of the Rules of Professional Conduct.

The board determined that respondent knowingly violated duties owed to "the legal system and to the public. There was no significant reported injury directly related to respondent’s misconduct; however, in some instances, respondent’s failure to allow members of the public to exercise their procedural due process rights caused inconvenience and eroded confidence in the judicial system. Furthermore, the potential for the loss of personal freedom and property existed. Under the ABA’s Standards for Imposing Lawyer Sanctions, the board found the baseline sanction for respondent’s misconduct is suspension.

In aggravation, the board recognized that respondent has a prior disciplinary record as a judge. In mitigation, the board agreed with the committee that respondent lacked a dishonest or selfish motive.

|7Considering. all these factors, the board recommended that respondent be suspended from the practice of law for one year and one day and that he be assessed with all costs and expenses of these proceedings.

The ODC filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Our review of the record indicates the underlying facts are largely undisputed. By respondent’s own admission, he wrote a letter of recommendation on his official court stationery and frequently issued ex parte directives to the Natchitoch-es Parish Sheriffs Office. Such conduct is clearly a violation of the Canons of the Code of Judicial Conduct and, by extension, constitutes conduct prejudicial to the administration of justice for purposes of Rule 8.4(d) of the Rules of Professional Conduct;

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining |sa sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The most egregious misconduct committed by respondent in this case involved his issuance of ex parte orders and directives to the sheriffs office, in blatant disregard of the due process protections set out in our law. We find it particularly disturbing that in at least one instance, respondent personally benefitted from this practice when he ordered the sheriff to retrieve his girlfriend’s car from a local garage. Although there might not be evidence in the record of palpable harm resulting from respondent’s actions, the potential for abuse in this scenario is patently obvious.

In aggravation, we recognize respondent’s prior judicial discipline, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The sole mitigating factor present is respondent’s lack of a dishonest or selfish motive.

Our prior1 cases involving similar judicial misconduct provide some guidance in determining an appropriate sanction. In In re: Fuselier, 02-1661 (La.1/28/03), 837 So.2d 1257, an Oakdale City Court judge engaged in a pattern and practice of legal eiTor in not following the law. Judge Fuselier held a witness in contempt for failing to appear in court pursuant to a subpoena, even though the witness had not been properly subpoenaed. He also wrote to the witness’ employer to complain, leading to the termination of her employment. Judge Fuselier abused his judicial authority |flby conducting arraignments and accepting guilty pleas in criminal cases when no prosecutor was present. He also engaged in ex parte communications by accepting requests to “fix” traffic tickets and/or other offenses by having a court employee contact the District Attorney or City Attorney to relay the messages. In addition, Judge Fuselier instituted an improper procedure for collecting worthless checks whereby merchants would simply deliver NSF checks to a court employee who would prepare demand letters on court stationery. If the maker of the check failed to pay the amount of the dishonored check plus collection fees, the clerk would prepare an arrest warrant and prepare a probable cause affidavit on behalf of the merchant, using a facsimile signature stamp, without the merchant ever having to review the affidavit or attest to the facts stated therein. Arrests were made as a result of the issuance of these warrants. Considering the numerous prior complaints that Judge Fuselier had exceeded his role as a neutral arbiter, and also considering that he had not used his position for personal financial gain, we accepted the Judiciary Commission’s recommendation of a 120-day suspension.

In In re: Landry, 01-0657 (La.6/29/01), 789 So.2d 1271, a justice of the peace improperly entered a default judgment in the amount of $1,800 against a small claims defendant who had never been properly served, without the plaintiff establishing a prima facie case, and without a hearing. Six prior complaints had been filed against Justice of the Peace Landry. Considering his intentional disregard of lawful procedure which struck at the core of a defendant’s fundamental right to be heard, along with his prior disciplinary complaints, we accepted the Judiciary Commission’s recommendation of a six-month suspension.

The ODC cites In re: Jefferson, 99-1313 (La.1/19/00), 753 So.2d 181, in support of its argument that respondent should be disbarred. Judge Jefferson, a Monroe City Court judge, was removed from the bench for his reckless and bad faith 1 inhandling of contempt proceedings, unauthorized practice of law, and failure to cooperate with an appointed supernumerary judge. On two occasions, Judge Jefferson improperly held a city prosecutor in contempt, resulting in the prosecutor’s detention. He improperly banned the prosecutor from his courtroom, then dismissed the charges in forty-one cases assigned to that prosecutor when the prosecutor did not appear in court. He also abused his authority in interrogating the Clerk of Court regarding paychecks and other administrative matters in a belligerent and argumentative manner, holding her in contempt for failing to answer and causing her to be transported to jail and booked. Judge Jefferson also continued to represent a plaintiff in a legal matter that he had handled as an attorney prior to assuming the bench and deliberately disobeyed the orders of the supernumerary judge appointed to handle administrative matters in his court. We noted Judge Jefferson’s persistent pattern of reckless, disrespectful, injudicious, and abusive behavior in our decision to remove him from the bench.

Considering these cases, we find that respondent’s misconduct does not approach the seriousness of the misconduct involved in Jefferson, but rather is closer to that seen in the Fuselier and Landry matters. While serving as a judge, respondent demonstrated a pattern of failing to comply with the law and frustrated the procedural protections at the heart of our legal system. Taking into account all the factors in this case, particularly respondent’s prior disciplinary record, we conclude the appropriate discipline is a one year and one day suspension from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that John Barclay Whitaker, Louisiana Bar Roll number 13408, be suspended Infrom the practice of law for one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from, the date of finality of this court’s judgment until paid.

WEIMER, J., dissents and assigns reasons.

TRAYLOR, J., dissents for reasons assigned by WEIMER, J.

VICTORY, J., dissents and assigns reasons.

VICTORY, J.,

dissents.

|,I agree with much of Justice Weimer’s dissent and would impose a more serious sanction than one year and a day.

WEIMER, J.,

dissents.

|,I acknowledge this matter presents itself in a unique posture given this is a attorney disciplinary proceeding for conduct occurring while respondent was serving as a Judge.

I suggest the sanction of a year and a day suspension is inadequate. Respondent was previously suspended for a year for smoking marijuana and associating with prostitutes, users, and sellers of illegal drugs and an individual charged with a felony. See In Re: Whitaker, 463 So.2d 1291 (La.1985).

I am convinced an error was made in the finding by the hearing committee that the respondent’s actions were not taken for personal gain and in the disciplinary board’s finding of mitigation that the respondent lacked a “selfish motive.”

In one matter, the respondent ordered the sheriff to retrieve the automobile of respondent’s girlfriend from a local garage. Additionally, he essentially became the lawyer for the sheriffs office by dispensing legal advise on a continuous basis. In issuing the ex parte pronouncements, he simply relied upon the representations of the deputies. As such, respondent accommodated the sheriff and his deputies for whatever benefit he derived from those actions. He acknowledged engaging in this activity five hundred times during his eighteen-and-a-half years on the bench.

The potential for abuse is patently obvious where judicial directives are dispensed without notice and an opportunity to be heard in complete and utter disregard for concepts of due process and the restraints imposed on the judiciary.

| ^Although I agree that a sanction should be imposed, I dissent because I believe the sanction imposed is inadequate.

      . The record contains copies of nine written directives from respondent to the sheriff’s office issued between 1987 and 1996; however, in his sworn statement, respondent testified that he has "probably done this five hundred times in eighteen and a half years” on the bench.

      . In July 2004, respondent voluntarily assumed inactive status as a lawyer pursuant to Supreme Court Rule XVIII.

      . In 1985, respondent was suspended from judicial office for one year for smoking marijuana on two occasions after becoming a judge and for associating with prostitutes, users and sellers of illegal drugs, and an individual against whom felony criminal charges were pending. In re: Whitaker, 463 So.2d 1291 (La.1985).


source: Caselaw Access Project

license: Public Domain

text:
    In re John G. DISCON.
    No. 2007-OB-0201.
    Supreme Court of Louisiana.
    Feb. 14, 2007.
   ORDER

The Office of Disciplinary Counsel (“ODC”) is conducting an investigation into allegations that respondent paid sums of money to a third person for recommending his services as a lawyer, in violation of Rule 7.2 of the Rules of Professional Conduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by John G. Discon, Louisiana Bar Roll number 4961, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of John G. Discon for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that John G. Discon shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    In re Gregory J. AVERY.
    No. 06-OB-1816.
    Supreme Court of Louisiana.
    Feb. 14, 2007.
   ORDER

Considering the Petition for Transfer from Disability Inactive Status to Active Status filed by respondent, Gregory J. Avery, the response thereto filed by the Office of Disciplinary Counsel, and the findings and recommendation of the hearing committee,

IT IS ORDERED that Gregory J. Avery, Louisiana Bar Roll number 2618, be and he hereby is reinstated to active status pursuant to Supreme Court Rule XIX, § 22(G). This order shall be effective immediately.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Christopher COLBERT.
    No. 2006-K-1770.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 11-03-0116; to the Court of Appeal, First Circuit, No. 2005 KA 2330.

Denied.


text:
    STATE of Louisiana v. Russell LIPPMAN.
    No. 2006-K-1787.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Lippman, Russell; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Catahoula, 7th Judicial District Court Div. B, No. 01-0891; to the Court of Appeal, Third Circuit, No. 06-17.

Denied.


text:
    STATE of Louisiana v. Andrew R. WEARY.
    No. 2006-KO-1799.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Weary, Andrew R.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. B, No. 00 CR5 79804; to the Court of Appeal, First Circuit, No. 2005 KA 2042.

Denied.


text:
    DAVIS GULF COAST, INC. v. ANDERSON EXPLORATION CO., INC., Three Sisters Trust and Austral Oil & Exploration, Inc.
    No. 2006-C-2148.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Anderson Exploration Co., Inc.;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, Nos. 03-C-5110-D, 02-C-2585-D; to the Court of Appeal, Third Circuit, No(s). 06-180, 06-181.

Denied.

KNOLL, J., would grant.


text:
    DAVIS GULF COAST, INC. v. ANDERSON EXPLORATION CO., INC., Three Sisters Trust and Austral Oil & Exploration, Inc.
    No. 2006-C-2166.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Ragin Rentals, Inc.; — Other; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, Nos. 03-C-5110-D, 02-C-2585-D; to the Court of Appeal, Third Circuit, No(s). 06-181, 06-180.

Denied.

KNOLL, J., would grant.


text:
    STATE ex rel. Rusty SKIPPER v. STATE of Louisiana.
    No. 2006-KH-2260.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Skipper, Rusty; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 370-722; to the Court of Appeal, Fourth Circuit, No. 2006-K-1038.

Denied.


text:
    Patsy Ann Collins DOMINGUE, et al. v. EXCALIBAR MINERALS OF LOUISIANA, LLC, et al.
    No. 2006-C-2480.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Valley Forge Ins. Co.; — Other; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. E, No. 95,415; to the Court of Appeal, Third Circuit, No. 05-1018.

Denied.

TRAYLOR, J., would grant.

WEIMER, J., would grant.


text:
    Patsy Ann Collins DOMINGUE, et al. v. EXCALIBAR MINERALS OF LOUISIANA, LLC, et al.
    No. 2006-C-2489.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Cameeo Industries Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. E, No. 95,415; to the Court of Appeal, Third Circuit, No. 05-1018.

Denied.

TRAYLOR, J., would grant.

WEIMER, J., would grant.


text:
    Sandy CARMENA v. EAST BATON ROUGE PARISH SHERIFF’S OFFICE, et al.
    No. 2006-CD-2490.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Carmena, Sandy et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 538,362.

Denied.


text:
    STATE ex rel. Warren SCOTT, III v. STATE of Louisiana.
    No. 2006-KH-2628.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Scott, Warren III; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-00-296; to the Court of Appeal, First Circuit, No. 06 KW 1291.

Denied.

WEIMER, J., recused.


text:
    RETIF OIL & FUEL, L.L.C. v. DANNY SOMME, INC., et al., Baron Oil Truck Stop, L.L.C.
    No. 2006-CC-2727.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Somme, Bert Daniel; Danny Somme, Inc. et al.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 615-375; to the Court of Appeal, Fifth Circuit, No. 06-C-720.

Denied.


text:
    ST. JOHN THE BAPTIST PARISH and Frisco Hunting Club and Tattoon’s Hunting Club and St. John Hunting Club and Reserve Hunting and Fishing Club and Dirty Dozen Camp, and Reserve Gun and Rod Club v. STATE of Louisiana, DEPARTMENT OF WILDLIFE AND FISHERIES.
    No. 2006-C-2730.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Reserve Gun and Rod Club; St. John the Baptist Parish et al.; Tattoon’s Hunting Club; Reserve Hunting and Fishing Club; Frisco Hunting Club; St. John Hunting Club; Dirty Dozen Camp; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 45016; to the Court of Appeal, Fifth Circuit, No. 05-CA-1002.

Denied.


text:
    RETIF OIL & FUEL, LLC v. DANNY SOMME, INC. and Baron Oil Truck Stop, LLC.
    No. 2006-CC-2763.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Baron Oil Truck Stop, LLC;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 615-375; to the Court of Appeal, Fifth Circuit, No. 06-C-732.

Denied.


text:
    Brenda BORDELON v. Gregory P. BORDELON.
    No. 2006-C-2824.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Bordelon, Gregory P.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. C, No. 2001-2164; to the Court of Appeal, Third Circuit, No. 06-537.

Denied.

CALOGERO, C.J., would grant.


text:
    Brenda CHASSION v. CINGULAR WIRELESS.
    No. 2006-C-2827.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Cingular Wireless; — Defendant; Applying for Writ of Certiorari and/or Review Office of Worker’s Compensation Dist. 04, No. 04-01577; to the Court of Appeal, Third Circuit, No. 06-691.

Denied.


text:
    WHITTEN FOUNDATION v. Frank GRANGER, III, in his Capacity as Tax Assessor for East Baton Rouge Parish, Louisiana; the Louisiana Tax Commission; & Elmer Litchfield in his Capacity as Sheriff & Ex-Officio Tax Collector for East Baton Rouge Parish, Louisiana.
    No. 2006-C-2828.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Whitten Foundation; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 491,484; to the Court of Appeal, First Circuit, No. 2004 CA 0934R.

Denied.


text:
    PARISH OF EAST BATON ROUGE through its Agent, the GREATER BATON ROUGE AIRPORT DISTRICT v. ACE BAIL BOND CONSULTING SERVICE, INC., Bill M. Spikes d/b/a Ace Bail Bond Consulting Service, d/b/a Ace Bail Bonds, d/b/a Ace Bail Bonds, Inc. d/b/a Ace Bail Bond and Consulting, Inc.
    No. 2006-C-2829.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Spikes, Bill M. et al.; Ace Bail Bond Consulting Service, Inc.; — Defendant/s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 514,889; to the Court of Appeal, First Circuit, No. 2005 CA 2645.

Denied.


text:
    JEFFERSON PARISH HOSPITAL SERVICES DISTRICT NO. 2, Parish of Jefferson, State of Louisiana, d/b/a East Jefferson General Hospital v. Hon. Jon A. GEGENHEIMER, Clerk of Court 24th Judicial District Court.
    No. 2006-C-2830.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Louisiana State of d/b/a; East Jefferson General Hospital; Jefferson Parish Hospital Service District No 2 et al.; Parish of Jefferson; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 628-863; to the Court of Appeal, Fifth Circuit, No. 06-CA-598.

Denied.


text:
    Donna Underwood PALMER, Individually and on Behalf of Her Deceased Son, Brian Palmer v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, General Motors Corporation, and ABC Insurance Company.
    No. 2006-C-2831.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Palmer, Donna Underwood et al.; — Plaintiff; Applying for Writ of Cer-tiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. I, No. 79425; to the Court of Appeal, First Circuit, No. 2005 CA 2632.

Denied.


text:
    Derry LABORDE, et al. v. Kirby M. PECOT, et al. Kenyawn Augustine, et al. v. New Horizon Kids Quest, IV, Inc., et al. Kenyawn Augustine, et al. v. Kirby M. Pecot, et al. Louis and Jennifer Blalock et al. v. New Horizon Kids Quest, IV, Inc., et al.
    No. 2006-CC-2837.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Security Insurance Company of Hartford; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, Nos. 2002-3740-B, 2002-3996-A, 2002-3997-A, 2002-3998-A; to the Court of Appeal, Third Circuit, No(s). CW 05-304, CW 05-365, CW 05-374, CW 05-285, CW 05-1044, CW 05-369, CW 05-376, CW 05-401, CW 05-406, CW 05-407, CW 05-1011, CW 05-1057, CW 05-330.

Denied.

KIMBALL, J., recused.

KNOLL, J., recused.


text:
    In re MEDICAL REVIEW PANEL PROCEEDINGS FOR the CLAIM OF Norma C. DUGAS (D), et al.
    No. 2006-CC-2838.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Gatlen, Yakesha; Auzienne-Hen-dricks, Tanya; Howard, Joe; Memorial Medical Center; Blaum, Erin; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, Nos. 2004-7643, 2004-5723, 2004-7930, 2004-14151, 2005-8594; to the Court of Appeal, Fourth Circuit, No. 2006-C-1383.

Denied.


text:
    Barbara OCHSNER v. IDEALIFE INSURANCE COMPANY and Hibernia Corporation.
    No. 2006-C-2840.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Ochsner, Barbara; — -Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 03-10513; to the Court of Appeal, Fourth Circuit, No. 2004-CA-1067.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant.


text:
    FARMCO INC. and B.A. Beauvais v. WEST BATON ROUGE PARISH GOVERNING COUNCIL W.T. Ruple v. West Baton Rouge Parish Council.
    No. 2006-C-2841.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Beauvais, Brent; Ruple, W. T.;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, Nos. 32,350, 29,745; to the Court of Appeal, First Circuit, No(s). 2006 CA 0073, 2006 CA 0074.

Denied.


text:
    Kety CALMES v. Kimberly WEEMS and Allstate Insurance Company.
    No. 2006-C-2842.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Calmes, Kety; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 2002-11885; to the Court of Appeal, First Circuit, No. 2006 CA 0008.

Denied.

KNOLL, J., would grant.


text:
    Harold CORKERN, II v. Susan CORKERN.
    No. 2006-C-2844.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Corkern, Harold II; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 2002-002432-A; to the Court of Appeal, First Circuit, No. 2005 CA 2297.

Denied.


text:
    SUCCESSION OF William J. MOSS.
    No. 2006-C-2861.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Moss, Sharon K.; — Other; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. I, No. 89-0597; to the Court of Appeal, Third Circuit, No(s). CW 06-289, CA 06-848.

Denied.

KNOLL, J., recused.


text:
    MAGNON ELECTRIC, INC. v. NATIONAL RENTAL COMPANY, LTD.
    No. 2006-C-2863.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re National Rental Company, LTD.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2001-5156-B; to the Court of Appeal, Third Circuit, No. 06-747.

Denied.

CALOGERO, C.J., recused.


text:
    Dennis and Trudi KRAUT, et al. v. NEW HAMPSHIRE INS. CO., et al.
    No. 2006-C-2864.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Boustany, Alfred F. II; — Other; Applying for Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-621-03; to the Court of Appeal, Third Circuit, No. CA 06-681.

Denied.


text:
    Derry LABORDE, et al. v. Kirby M. PECOT, et al. Kenyawn Augustine, et al. v. New Horizon Kids Quest, IV, Inc., et al. Kenyawn Augustine, et al. v. Kirby M. Pecot, et al. Louis and Jennifer Blalock et al. v. New Horizon Kids Quest, IV, Inc., et al.
    No. 2006-CC-2865.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re New Horizon Kids Quest IV Inc. et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, Nos. 2002-3740, 2002-3996, 2002-3997, 2002-3998; to the Court of Appeal, Third Circuit, No(s). CW 05-304, CW 05-365, CW 05-374, CW 05-285, CW 05-1044, CW 05-369, CW 05-376, CW 05-401, CW 05-406, CW 05-407, CW 05-1011, CW 05-1057, CW 05-330.

Denied.

KIMBALL, J., recused.

KNOLL, J., recused.


text:
    Theodore JOHNSON v. STATE OF LOUISIANA DEPARTMENT OF SOCIAL SERVICES/Louisiana Rehabilitation Service.
    No. 2006-C-2866.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Johnson, Theodore; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. E, No. 90515 “E”; to the Court of Appeal, First Circuit, No. 2005 CA 1597.

Denied.


text:
    Derry LABORDE, et al. v. Kirby M. PECOT, et al. Kenyawn Augustine, et al. v. New Horizon Kids Quest, IV, Inc., et al. Kenyawn Augustine, et al. v. Kirby M. Pecot, et al. Louis and Jennifer Blalock et al. v. New Horizon Kids Quest, IV, Inc., et al.
    No. 2006-CC-2879.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Liberty Mutual Insurance Co.; F.L. Crane & Sons Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, Nos. 2002-3740, 2002-3996, 2002-3997, 2002-3998; to the Court of Appeal, Third Circuit, No(s). CW 05-304, CW 05-365, CW 05-374, CW OS-285, CW 05-1044, CW 05-369, CW 05-376, CW 05-401, CW 05^06, CW 05-407, CW 05-1011, CW 05-1057, CW 05-330.

Denied.

KIMBALL, J., recused.

KNOLL, J., recused.


text:
    Derry LABORDE, et al. v. Kirby M. PECOT, et al. Kenyawn Augustine, et al. v. New Horizon Kids Quest, IV, Inc., et al. Kenyawn Augustine, et al. v. Kirby M. Pecot, et al. Louis and Jennifer Blalock et al. v. New Horizon Kids Quest, IV, Inc., et al.
    No. 2006-CC-2880.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Trane Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. 3, Nos. 2002-3740, 2002-3996, 2002-3997, 2002-3998; to the Court of Appeal, Third Circuit, No(s). CW 05-304, CW 05-365, CW 05-374, CW 05-285, CW 05-1044, CW 05-369, CW 05-376, CW 05 — 401, CW 05-406, CW 05-407, CW 05-1011, CW 05-1057, CW 05-330.

Denied.

KIMBALL, J., recused.

KNOLL, J., recused.


text:
    Lateea TOSTON, as Curatrix of Syvella Toston v. NATIONAL UNION FIRE INSURANCE COMPANY OF LOUISIANA.
    No. 2006-C-2881.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Toston, Lateea Curatrix; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of East Carroll, 6th Judicial District Court Div. B, No. 20320; to the Court of Appeal, Second Circuit, No. 41,567-CA.

Denied.


text:
    STATE of Louisiana v. Glenn DOYLE.
    No. 2006-KK-2883.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Doyle, Glenn; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, Nos. 05-2907, 05-2908; to the Court of Appeal, Fifth Circuit, No. 06-K-742.

Denied.


text:
    Irvin HADLEY v. CENTEX LANDIS CONSTRUCTION CO., INC., et al.
    No. 2006-CC-2886.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Louisiana Insurance Guaranty Assn.; Gulf South Piling & Construction Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 96-5450; to the Court of Appeal, Fourth Circuit, No(s). 2006-C-1292.

Denied.

TRAYLOR, J., recused.


text:
    Carolyn BOURGERE, et al. v. TULANE UNIVERSITY HOSPITAL AND CLINIC, et al.
    No. 2006-CC-2898.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Okonkwo, Nbudeze M.D.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2005-05842; to the Court of Appeal, Fourth Circuit, No. 2006-C-1102.

Denied.

TRAYLOR, J., would grant.


text:
    Mona STEELE, Kelly Steele and Myles Anthony Steele v. Kirk THOMASSIE, Will Dufrene, La Supercross, Joseph Gracianette, Vincent Leblanc, Jeremy Justice, Marsh Investment Corporation, Joseph Marcello, Wade Mongrue, Courtney Mongrue, Westbank Speedway, Inc., Hermitage Insurance Company, Fairmont Insurance Company.
    No. 2006-CC-2899.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Hermitage Insurance Company;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 585-980; to the Court of Appeal, Fifth Circuit, No. 06-C-822.

Denied.

TRAYLOR, J., would grant.


text:
    Godiva HAWKINS-ROBERTSON, Steven Hawkins, Sr., and Joell Jackson on Behalf of Her Minor Child Kevin Jackson, and the Succession of Steven Hawkins, Jr. v. Eric HESSLER and the New Orleans Police Department.
    No. 2006-CC-2902.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Hessler, Eric et al.; New Orleans Police Department; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2000-04393; to the Court of Appeal, Fourth Circuit, No. 2006-C-0004.

Denied.

TRAYLOR, J., would grant.


text:
    ESTATE OF Frank DEGRAAUW v. TRAVELERS INSURANCE COMPANY.
    No. 2006-C-2910.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re DeGraauw, Frank Estate of et al.; DeGraauw, David M. Executor; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Vermilion, City Court of Abbeville, No. 13927; to the Court of Appeal, Third Circuit, No. 06-547.

Denied.

KNOLL, J., recused.


text:
    Andrew ELLIS and Kelly Jane Workman v. Robert JENKINS and AAA Insurance Company.
    No. 2006-C-2912.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Ellis, Andrew et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. F, No. 116,212; to the Court of Appeal, Second Circuit, No. 41,-475-CA.

Denied.


text:
    VECTOR ELECTRIC & CONTROLS, INC. v. JE MERIT CONSTRUCTORS, INC.
    No. 2006-C-2913.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Vector Electric & Controls Inc.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 503,462; to the Court of Appeal, First Circuit, No. 2005 CA2244.

Denied.


text:
    Michael MARZIALE v. DEPARTMENT OF POLICE.
    No. 2006-C-2916.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Department of Police; — Defendant; Applying for Writ of Certiorari and/or Review Civil Service Commission of the City of New Orleans, No. 6857; to the Court of Appeal, Fourth Circuit, No. 2006-CA-0459.

Denied.

TRAYLOR, J., would grant.


text:
    Alvin MILLET and Roland Millet v. ACADIAN AMBULANCE SERVICE, INC., et al.
    No. 2006-C-2917.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Millet, Alvin et al.; Millet, Roland; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. D, No. 75,245; to the Court of Appeal, First Circuit, No. 2005 CA 2064.

Denied.

KNOLL, J., would grant.


text:
    STATE ex rel. Steven RAMSEY v. STATE of Louisiana.
    No. 2006-KH-2919.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Ramsey, Steven; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 460-848; to the Court of Appeal, Fourth Circuit, No. 2006-K1184.

Denied.


text:
    Juanita Andrepont HUNT, on Behalf of her Deceased Mother, Esther Langley Andrepont v. COMMUNITY CARE CENTER OF OPELOUSAS, L.L.P., et al.
    No. 2006-CC-2922.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Community Care Center of Opel-ousas L.L.P. et ah; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. A, No. 06 C 2022 A; to the Court of Appeal, Third Circuit, No. CW 06-01213.

Denied.


text:
    STATE of Louisiana v. Margaret GIANCOLA.
    No. 2007-KK-0014.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 94-1795; to the Court of Appeal, Fifth Circuit, No. 06-KR-797.

Denied.

JOHNSON, J., would grant.

TRAYLOR, J., would grant.


text:
    In re C.S. and C.S.
    No. 2007-CJ-0020.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   In re Smith, Jimmy K.; Martin, Darren; Martin, Wendy; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 148,806; to the Court of Appeal, First Circuit, No. 2006 CW 1927.

Denied.


author: GREG G. GUIDRY, Judge.

text:
    Gary YATES, Judith Yates, Dudley Meche, Lora K. Callaway, Kay Callaway, Evelyn S. Cain, Eugene Arceneaux, Lillian Hebert, Jimmie J. Hebert, A. Wayne Cain, Evelynere Cain, Audrey Rivero, Herbert P. Rivero, Jr., Mark Gauthier, Pamela Casse, Virginia Bryant, Barbara Bryant, Mary Cancienne, Charles K. Hickman, Wilson Cancienne, Jr., Gail V. Arceneaux, Gary G. Bush, Kerry S. Gaspard, Margaret W. Vincent, Ethel McAllister, Felicia Creppel, Jorey Rivero and Herbert P. Rivero, III v. Charles ELMER, Individually and d/b/a Sportsman’s Trailer Park and ABC Insurance Company.
    Nos. 06-CA-267, 06-CA-74 C/W, 06-CA-75.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Kenneth E. Pickering, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Joseph N. Mole, Ellen S. Kovach, Ann Marie LeBlanc, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Randall L. Kleinman, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

|sThe Plaintiff, Charles Elmer and his insurer, Third-Party Plaintiff, Essex Insurance Company (Essex), appeal a judgment in favor of West Jefferson Levee District (WJLD) dismissing Elmer’s actions for damages due to inverse condemnation and/or damages due to the construction of public works. We affirm in part and amend the judgment as to costs.

Elmer is the owner of 101.3 acres of wetlands located to the south of Lapalco Boulevard at Victory Drive, in Westwego, Louisiana, that is bounded on three sides by levees. The ‘Westwego levee” is located to the north and east of the Elmer property. The levee starts at the old Westwego Pumping Station. Going west to east, it ends at the western boundary of the Elmer property. The second or “Northern” levee runs along the north border of the property. The third or Westminster-Lincolnshire” (W-L) levee ties into the Northern levee at the eastern Lboundary of the Elmer property. The W-L levee then runs north to south for some distance before turning eastward and continuing toward the Harvey Canal.

The Northern levee was first erected across the northern end of the Elmer property in 1919 from soil deposited from the digging of the “Outfall Canal A,” which was part, of a parish municipal drainage project. That “tidal” levee was raised and repaired periodically by the City of West-wego (the City). In 1940 it was three and one-half feet high. In the 1950’s and 1960’s, the governing authorities intended to raise the levee to six feet, but did not do so until 1985-1986 when the Defendant acted in response to severe flooding in the City from Hurricane Juan in 1985.

The Elmer land has always been outside of levee protection. The land is swampy and marshy, and has always been subject to some flooding from tidal water from the south. Nothing has existed to prevent tidal water from flowing across the Elmer property toward the east and the W-L levee.

The Plaintiffs father, Dr. Charles Elmer purchased this property in the 1950⅛. The Northern levee at that time was approximately four and one-half feet high. In 1964, Dr. Elmer drained part of the property to construct the Westwego Airport, his privately owned seaplane airport, and its seaplane canal. He used the dirt from the canal excavation to increase the elevation of the land around the airport, forming an elevated plateau above the swampy wetlands. A flood gate was also constructed at the southern end of the seaplane canal. The land on the seaplane or eastern side of the canal was higher than the west side. Victory Drive provided access to the property over the Northern levee. That gap was routinely sandbagged by the City of Westwego during high water threats.

IsSometime in the 1960’s or early 1970’s, the Elmer family established a trailer park on the west side of the seaplane canal. Around that time, a ditch was dug along the western edge of the trailer park, and the excavated dirt used to build a raised embankment along that side of the trailer park. At some point before 1985, someone, most likely the Elmer family, constructed a culvert through the Northern levee to drain water from the trailer park into the Forty Arpent Canal. Thus, by 1985, the property around the commercial areas had been drained, the dirt used to elevate the property above the surrounding wetlands, a drainage ditch with a raised embankment (spoil bank or levee) along west side of the trailer park constructed, a culvert built under the existing levee to drain rainwater from the trailer park, and a flood gate control at the south end of the seaplane canal installed. The property was annexed to the City in 1967. For many years, both of the businesses thrived.

In 1980, the West Jefferson Levee District was created to create, manage, and maintain levees on the west bank of Jefferson Parish.

In 1985, Hurricane Juan struck the area causing severe flooding in Westwego. The hurricane caused some flooding on the Elmer property, but it was minor and the land drained fairly quickly.

Following the disaster to the Westwego residential areas, the Defendant began in earnest to implement a federal levee protection system by raising, repairing, and improving the levees. In 1985 to 1986, the Defendant repaired and raised the Northern and W-L levees to six feet. In 1986, interim levees were built behind the original Westwego and W-L levees.

|fiIn 1986, following numerous studies, discussions and negotiations, the Defendant and the Parish of Jefferson (the Parish) accepted a proposed federal alignment (Modified Alternative Alignment E) for the Federal Hurricane Protection Levee, the permanent levee system. The federal alignment basically followed the original levee alignment, but was set back 150-200 feet from the original and interim levees. In 1987, the Defendant expropriated the properties on either side of the Elmer property for this purpose, but bypassed Elmer’s land.

From 1998 through 2002, the levees were “lifted” or raised twice. The north-south portion of the W-L levee was lifted in 1989 and 1998. In 1998 and 2002, the Defendant constructed the first and second lifts of the Westwego levee and the west-east portion of the W-L levee. The Elmer property was now outside the updated levee protection system, and surrounded on three sides by levees higher than the ones that existed before 1985.

In 1989, Elmer’s insurance agent informed him that the new levees would eventually cause the airport to flood. Elmer closed the Westwego airport, because he could no longer afford insurance on the property. In April of 1991, unusually heavy spring rains and winds forced water from the surrounding wetlands and bayous onto the property and up against the Northern levee causing severe flooding in the trailer park. As a result, Elmer closed the trailer park in 1991.

PROCEDURE

In February of 1989, the Plaintiff filed an inverse condemnation suit against the Defendant. In April of 1991, following the devastation to the trailer park from the spring rains in April, the trailer park residents filed suit against Elmer and his |7insurer, Essex Insurance Company (Essex) for damages. The two cases were consolidated.

In 1993, Elmer filed a third-party action against the Defendant for contribution and/or indemnity in the trailer park suit. In 1994, Essex filed a third-party demand against the Defendant for indemnity following settlement with the trailer park residents. Subsequently, Elmer amended his suit several times to add items of damages, to name the City and the Parish as Defendants, and to allege the negligence and/or strict liability of the three Defendants. The City, the Parish, and the Defendant subsequently filed exceptions of prescription.

In September and October of 2000, the Plaintiffs claims against the three Defendants were dismissed as prescribed. In Elmer v. West Jefferson Levee Dist., 01-248 (La.App. 5th Cir.11/27/01), 803 So.2d 229 we affirmed the dismissal of the Parish and City, but reversed the ruling as to the Defendant on the basis that there was no evidence of the date of acceptance and completion of the levee project as required for the applicable prescriptive periods to commence.

After the remand, the case was set for trial on January 26, 2004. In a pre-trial conference on January 18, the trial judge cancelled the trial and requested the parties to brief the affirmative defense of discretionary immunity relative to the issue of the closing of the culvert by the public entities, despite Defendant’s failure to plead it. On January 26, the Defendant filed another exception of prescription solely as to the claim for damages for closure of the culvert. In compliance with the trial judge’s order, the Defendant argued the affirmative defenses of I «governmental discretionary immunity under La. 9:2798.1 involving construction of public works, and under R.S. 29:709 for emergency acts. For the first time, the memorandum also argued the affirmative defense of Act of God. In the Plaintiffs’ opposition memoranda, they argue that the immunity defense should be disregarded, because the Defendant never pleaded it, and no further discovery had been permitted. Essex also objected to the Act of God argument on the same basis, further arguing that Defendant waived the defenses by failing to amend the answer. The issue was briefed and opposed again prior to the trial on the merits. However, the Defendant never formally pleaded the defenses, and the Plaintiffs never filed a motion to continue the trial or filed a formal objection to the defenses.

After 15 years of litigation, a trial was held on January 18 through January 21, 2005, January 24, 2005 and February 22, 2005, following which, a judgment was rendered in favor of the Defendants. In detailed reasons for judgment, the trial judge found that the Plaintiffs failed to prove the levee project caused Elmer’s economical damages, and therefore, they failed to prove inverse condemnation; that in the absence of inverse condemnation, the Defendant had discretionary immunity under La.R.S. 9:2798.1 for any damages; and further that the Plaintiffs failed to prove that Defendant was negligent in constructing the levee system, or in failing to expropriate the Plaintiffs property when it expropriated adjacent land in 1989. The trial judge also found that the Plaintiffs had sufficient notice of the affirmative defenses. Thus, the pleadings had been enlarged. All costs not agreed to by the parties were assessed against the Plaintiffs.

|90n appeal, the Plaintiffs assert that the trial judge erred in failing to find that Elmer’s economic damage was caused by the Defendant, in her alternative finding that the Defendant is immune from liability, and in finding Plaintiffs did not bear their burden of proving negligence. The Plaintiffs also contend that the trial judge erred in the assessment of certain costs against them.

CAUSATION

In determining whether a party is entitled to damages for inverse condemnation, negligence under either La.C.C. art. 2315, or strict liability under La.C.C. art. 667 and 2317, the Plaintiff must show that the conduct by the public body caused the damages. The trial judge concluded that the Plaintiffs failed to carry their burden of proof that the Defendant’s actions caused Elmer’s damages. In the absence of causation, there can be no liability under any theory of law.

The evidence showed that, in April of 1985, prior to Hurricane Juan, Dr Elmer attempted to obtain a permit to fill in more of the wetlands to extend the trailer park. The U.S. Army Corps of Engineers (Corps) denied his request. Nevertheless, Dr. Elmer proceeded to dump fill on the southern end of the park without the permit. When the Corps found out, it informed Dr. Elmer that the Impermit was again denied, that the fill was illegal, and ordered him to return the land to its original state.

In December of 1986, Dr. Elmer transferred the property to Dr. W. Jay Elmer, Lucille Elmer, Jay W. Elmer and Charles Elmer. The Plaintiff here, Charles Elmer, subsequently obtained 100% ownership in 1987 and 1988.

Geneva Grill, an employee of the Department of Transportation and Development (DOTD), the State agency overseeing the Defendant’s constructions, testified as an expert in civil engineering, hydraulics, levee design and construction. She surveyed all of the Jefferson Parish westbank levees in 1983. Grill testified that continuous work was performed on the Westwego and Westminster levees from 1983 through 1985 to rid them of trees and to raise them to six feet plus above the land around them. In 1985, she became the principle levee advisor to the Defendant.

According to Grill, the westbank levees were in disastrous shape after Hurricane Juan. It was imperative the Defendant act immediately to start work on the federal levee construction, because the Federal Emergency Management Agency (FEMA) was threatening to remove flood insurance and place a moratorium on westbank construction, and because the westbank had sustained severe flooding creating an emergency. As the emergency work began on the deteriorated levees, Grill worked with FEMA., the Corps of Engineers, the Parish, and others on the federal levee system plans. The areas most in crisis were given top priority. All of the construction then and later complied with federal levee height requirements of 7.5 or 7.5 plus feet.

Grill also testified that the money situation was grim during this period. There was little local or state money to build the levees. And, pre-hurricane State funding had been reallocated to build a flood wall along the west side of the U Harvey Canal, a project that had a completion deadline and preempted the work on the levees. Furthermore, her workers were stretched thin. Other than raising the Northern levee in front of the Plaintiffs property, work on that part of the levee was not a top priority, because the road accessing Elmer’s property was narrow and easily sandbagged during high water situations. In addition, the Defendant was planning to construct flood gates at the Elmer property so as not to interfere with the businesses. Since this plan would have been more expensive and complicated then constructing an earthen levee, and since no other commercial establishments were located behind the levees, the work near the Elmer property was delayed. However, that plan was eventually rejected. Under the new plan, an earthen levee with an access road to the Elmer property was to be constructed. Grill pointed out that Elmer never lost access to the property at any time.

Ron Besson, the Defendant’s President from 1980 to 1990, was also administrative assistant to a Parish councilman from 1996 to 2004. During his tenure as President, he attempted more than once to convince the federal government to permit a levee alignment that would include the Elmer property. The Corps refused. Since continued objection to proposed federal alignment “E” would have delayed the critical work, the Defendant acquiesced to the construction of the federally proposed alignment. That alignment excluded the Elmer property from levee protection.

According to Ernest Tassin, former Westwego mayor, alderman and WJLD executive director, the Elmer family took no interest in these negotiations, despite Tassin’s attempt to involve them.

In 1987, the United States Congress authorized the Federal Hurricane Levee Protection System Alignment E from the Harvey Canal on the east to Lake Ca-taoutche on the west. The alignment followed the old levee. According to the 112witnesses, the Defendant, as the local partner in the project, had to move as fast as possible. In order to obtain necessary federal funds and credit for local monetary contributions, the Defendant had to design the system to federal standards. They used the old footprint where possible, and a non-wetlands footprint when it could not. The federal alignment required the West-wego and W-L levees to be constructed on a new footprint behind the original levees for stability. Once the reach of each levee was designed in accordance with the federal criteria for stability and soil conditions, the width of the rights of way were determined, and expropriation proceedings started.

In 1987, the Defendant expropriated land along Lapalco Boulevard adjacent to the Elmer property to construct the interim levees. It did not expropriate the northern portion of the Elmer land, because, according to Geneva Grill, that area was to be addressed later in the project.

In May of 1987, the Defendant notified the Elmer family that the property was left outside of the protection levee because the Environmental Protection Agency (EPA) declared it to be wetlands and would not allow it to be permitted for levee construction.

In April of 1991, unusually heavy spring rains, up to 13.38 inches, fell in the area, causing flooding in the trailer park, but minor, if any, flooding in the areas on the protected side of the reconstructed levees.

Ernest Tassin testified that, when Dr. Elmer sought building permits to establish the trailer park in the 1960’s, the City and the Parish, as the drainage authority, required him to construct a levee around the trailer park to protect it from flooding. Tassin testified that in order to obtain the necessary permits, Dr. Elmer agreed to build and maintain the levee. Tassin admitted that there were no written documents supporting that assertion. Nevertheless, the evidence is |13uncontested that Dr. Elmer did dig a ditch on the west side of the trailer park around that time. According to Tassin, Dr. Elmer built the Elmer levee from the ditch spoils, and that it ran north to south from the Northern levee and continued around the southern boundary of the property. Tassin testified that over time the Elmer levee subsided and deteriorated, as would be expected in swampy land.

Charles Elmer disputed the testimony that his father was required to build a protection levee. He testified that there is no governmental requirement to construct a levee around a commercial enterprise that might be subject to flooding. He insisted that the so-called levee was in reality a spoil bank from the ditch project and was never intended to act as levee protection. Further, he claims that Dr. Elmer did not construct a “hydraulic system” for the protection of the trailer park. Although Elmer admitted that sometime before 1985 someone constructed a culvert through the Northern levee, he denied building the culvert. Nevertheless, it was an illegal construction, and the City routinely closed it and the Victory Drive access gap with sandbags when high water threatened Westwego. The Plaintiff admitted that one time he used dynamite to reopen the culvert after the City officials closed it so that his property could drain again.

Elmer also contended that the Defendant overlooked his property in the expropriation proceedings in 1987 in order to devalue it, and thus, reduce the Defendant’s cost of eventually expropriating it. He pointed to the large amount of money adjacent landowners received in the expropriation of their properties based in part on their location next to Elmer’s commercial enterprises. He referred to a letter written in January of 1995 by Owen Bor-delon, Defendant’s legal counsel at the time, in which Bordelon expressed his concern about the cost of this litigation and the cost of potential severance damages in an expropriation of Elmer’s property, considering its value and history of commercial use.

| uThe Flood Events

Coralee Allen, the wife of the park manager, James Allen, lived there from 1984 until it closed in 1991. She stated that the trailer park never flooded severely prior to the work on the levee system following Hurricane Juan. Rainwater drained quickly, as did the minor flooding of 2.5 feet from Hurricane Juan.

Following the hurricane, the trailer park residents complained to Tassin that the Elmer levee sustained a breach and water was flowing into the trailer park through the gap. Tassin walked the levee, and observed water encroaching on the trailer park. He referred the tenants to Dr. Elmer, and notified the park manager, informing him that Elmer was responsible for repairing and maintaining the levee.

Although the gap in the Elmer levee appeared during or shortly after Hurricane Juan, that breach apparently did not contribute to any significant flooding. However, the Plaintiffs attorney, Frank Zacearía, informed him at some point after the hurricane that the tenants were having difficulty obtaining insurance because of the flooding potential. There was no other evidence that the ebb and flow of the water on the property was more frequent after Hurricane Juan. According to Allen, in the interval between 1985 and 1991 water rose occasionally on the gravel road in the park, but the trailers were never flooded. Mark Gautier, a resident from 1989 to 1991, supported this testimony.

Allen and Gautier stated that when the extraordinary spring rains fell in 1991, the water in the trailer park rose to approximately six feet. The water reached up to the windows of some of the trailers. This was despite the fact that the water level only reached 2.79 feet above sea level on the protected side of the Northern levee. That was two feet less than experienced during Hurricane Juan.

Gautier further testified that in the 1991 event, water poured through a 10 foot breach in the Elmer levee. He and other residents attempted to stop the water 11Bby patching the breach with boards. It worked briefly, but the flooding soon found a way around the boards. This break was approximately 100 yards south of the Northern levee. The water ran from the breach to the Northern levee, where it backed up. He noted that the Elmer levee was overgrown with trees and was not wide enough or high enough to prevent the water from entering the trailer park. Gautier said the water came from the marsh to the west of the trailer park, driven by the winds and the heavy rain. Gautier also said that the Elmer levee sloped downward toward the south, so that there was nothing to keep the water out from that direction, other than debris and rip-rap at the south end of the trailer park. Both he and Allen testified that the water from the 1991 storm came from all directions. When Gautier went back a few years before the trial in this case, he discovered that the trailer park area had reverted to swamp.

The evidence further showed that the area protected by the levees in 1991 did not flood in the heavy rains. Because of that, the governmental entities did not declare an emergency.

Elmer testified that he did not know how often water rose on the property between 1965 and 1985, or between 1985 and 1991. Although he only occasionally visited the park between 1987 and 1991, he noticed more water than before 1985. He did not know how long the water remained, or how often it inundated the airport runway during that time, or before he closed the airport in 1989. Elmer admitted that he did not perform any maintenance, repair or reconstruction work on any portion of the property after the hurricane in 1985. There was no evidence of any regulations that would have prevented the work, but in any event, he never considered the work on the property to be a water protection system.

|1KIn 1991, the culvert going through the Northern levee was ordered closed permanently by the DOTD.

In June of 1991, the Plaintiff closed the trailer park, because he could not prevent the park from continuing to flood. However, he also admitted that the Department of Environmental Quality (DEQ) ordered the closure due to the possible incursion of swamp water into the oxidation system. The property is now inundated with two feet of water. As wetlands, it cannot be used for commercial purposes.

The Plaintiffs expert geologist, Dr. Mark Kulp, testified that he was familiar with the levees in western Louisiana, but has had only informal conversations regarding the role of levees in the southeastern part of the state as water barriers. In conjunction with the litigation, he visited the Elmer property one time. After his investigation into this matter, Dr. Kulp concluded that the Defendant’s levee constructions after 1985 contributed to the flooding in 1991. According to Dr. Kulp, the new levee system formed a triangle from the levees on the west, north and east of the property, with the trailer park at the apex of the triangle located at the northern boundary. He testified that this created a funneling effect which forced rising water onto the Elmer property from the wetlands, and that the higher levees caused the water to back up at the apex of the triangle. Dr. Kulp stated that wind, rain, wave and tidal effect also contributed to the 1991 flooding. However, he did not believe the breach of the Elmer levee caused the flooding at that time, because the levee ran north to south, and the rising water came from the south. Dr. Kulp stated the water would have had to come from east to west for the Elmer levee to have any effect on protecting the property. He did not comment on the testimony of Allen and Gautier who said that the water came in from all directions, in particular from over the Elmer levee to the west of the trailer park. Dr. Kulp 117aIso did not comment on the incursion of water on the land between 1985 and 1991, or between 1991 and the present. Although he indicated that this effect has been seen in another parish in the metropolitan area, other testimony indicated that such a funneling effect has only been observed in Eastern Canada.

Dr. Kulp testified that subsidence was not a factor in this case. In his opinion, any subsidence would have occurred when the property was drained in the 1960’s to construct the airport.

Grill testified that the new levee system greatly enhanced the ability of the people and property on the protected side to survive a storm. She did not believe that Defendant’s levees caused or increased the flooding south of the levee or outside the levee protection system. She felt the flooding that occurred on the Elmer property was due to absence of anything to stop the water coming from the Gulf of Mexico (the Gulf) through the wetlands. She said the rising water in 1991 came from the south and southwest, which means that the property would have been flooded before the water reached the Defendant’s levees. Elmer disputed this. He contended that the winds were from the south. Nevertheless, Grill concluded that water rolling from the Gulf, tidal surge, subsidence and wind caused the Elmer property to flood in 1991. Grill also believed that any owner of property outside the levee system should be responsible for drainage. For this reason, and because Elmer knew that high water events occurred due to its location in the wetlands, and knew that the culvert was closed whenever high water threatened, it was his responsibility to supply drainage for his property.

Grill disagreed with Dr. Kulp about the funneling effect, and with his opinion on subsidence of this land. She discounted the funneling theory, because the water levels measured for the period in question at the various west bank gauges was consistent across the west bank. Since no special dynamics were at |1swork here, as there is in Eastern Canada, there would not have been a funneling effect that would have caused this problem. Furthermore, based on her experience, continual subsidence of the wetlands soil was a contributing factor in this land’s propensity to flood over the years.

Drs. George Castille and Johannes van Beek, expert geographers with Coastal Environments, Inc., also testified to the cause of the flooding on the Elmer property from 1991 onward. Dr. Castille walked the property in 1999. Based on their analysis, they concluded that the property was enclosed by a levee system, which they termed the “Elmer hydraulic system.” Dr. Castille said that the western part of the property is a cypress swamp, with a mean high water mark at +3.6, based on the height of the cypress knees. He noted there were no knees in the trailer park area. He explained the presence of cypress knees indicates the land is swamp that periodically drains. Although the cypress swamp was at, or a little above sea level, the western edge of the trailer park was 1 to 1½ feet lower due to subsidence. Dr. Castille concluded the subsidence in that area occurred when the property was drained by the construction of the Elmer Canal and levee.

Dr. Castille stated that, in 1999, the Elmer levee ranged from 2 to 3.5 feet in height, with gaps lower than 2.5 feet, and that the more easterly portions of the trailer park were higher due to the plateau development from the airport construction. He testified that these land differences created a bowl-like effect within the trailer park. He further testified that once a levee is placed in a wetland area with high organic soil and the land is drained for that purpose, the ground will sink. He said the higher areas were where the spoil was deposited.

Dr. Castille described the eastern side of the trailer park. He said that the spoils deposited when the seaplane canal was dug created a crest on that side. The eastern crest is near the road and was +2.5 feet high, consistent with the Elmer |1fllevee. However, that ridge is thicker, denser, and more stable than the Elmer levee on the west, which was in poor condition. Dr. Castille concluded that in 1999, the Elmer hydraulic system would have protected the trailer park up to +2.5 feet, except for the fact that there were gaps which dipped below 2.5 feet. Dr. Castille visited the area again in 2003. He testified that both times he visited, the land was flooded. Except for the plateau created by the spoils, the flooding appears to be permanent.

Dr. Castille also disagreed with Dr. Kulp about the funneling effect. In Dr. Castille’s opinion, the breach in the Elmer levee caused the problem. He agreed with Grill that the water came from the south and southwest, and flooded the trailer park before the water reached the Defendant’s levees. Dr. Castille said the only effect the Westwego and W-L levees had was to stop the water that flooded the Elmer property from going into the City of West-wego. He and Dr. van Beek further attributed the flooding to the inadequate height of the Elmer levee for the prevailing water level conditions, the use of improper materials for the construction of the Elmer levee, and the lack of maintenance of the Elmer levee and the Elmer hydraulic system.

The trial judge found that the Plaintiff failed to prove that the levee work by the Defendant caused the damages suffered by the Plaintiff. She found instead that the actions of the Plaintiff in failing to maintain, or repair the existing Elmer hydraulic system, and/or natural weather events, subsidence, geography of the wetlands, and Acts of God (Hurricane Juan and the 1991 spring rains) caused the propensity for flooding after Hurricane Juan, the 1991 flood, and the permanent inundation of water from tidal flow and rain thereafter. In reaching this conclusion, she adopted the testimony of the Defendant’s witnesses, rejecting the [^testimony of Dr. Kulp that a tunneling effect was created by the Defendant’s levees. She was particularly impressed by the testimony of Geneva Grill.

A trial court’s findings of fact will not be disturbed unless the record establishes that the finding is clearly wrong or manifestly erroneous. Franklin Southland Printing Co., Inc. v. New Orleans Aviation Bd., 99-60 (La.App. 5th Cir.7/27/99), 739 So.2d 977, 981; Lambert v. State Through Dept. of Transp. & Development, 96-160 (La.App. 5th Cir.10/16/96), 683 So.2d 839, 842; West Jefferson Levee Dist. v. Mayronne, 595 So.2d 672 (La.App. 5th Cir.1992); Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Franklin, 739 So.2d at 981; Stobart, 617 So.2d at 882. Where two reasonable views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Franklin, 739 So.2d at 981; Stobart, 617 So.2d at 882. This standard of review also applies to credibility determinations of expert witnesses. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.1990).

In this case, both views of the evidence presented were reasonable. Thus, the trial judge’s choice between them cannot be manifestly erroneous or clearly wrong. See: Franklin, 739 So.2d at 981, and Stobart, 617 So.2d at 882. Since we find no error in the trial judge’s conclusion that the Plaintiffs damages were caused by factors other than the Defendant’s levee project, the trial judge was not manifestly erroneous in finding that Defendant is not hable.

In light of our finding that the Plaintiff failed to prove that the Defendant caused the damage, we need not address negligence and damages, and pretermit |aithe issue related to the defenses of governmental immunity since’ the Defendant cannot be held liable under any other legal theories in the absence of causation.

AFFIRMATIVE DEFENSE

The Plaintiffs also argue that the trial judge erred in considering the affirmative defense of Act of God.

An affirmative defense, such as Act of God, must be specially pleaded. See: La.C.C.P. art. 1005. However, the failure to plead will not necessarily exclude such evidence since the purpose of pleading a special defense is to give fair and adequate notice of the nature of the defense so that plaintiff is not surprised. See: Webster v. Rushing 316 So.2d 111, 114-115 (La.1975). Pleadings may be enlarged by evidence adduced without objection when such evidence is not pertinent to any other issue raised by the pleadings and, thus, would have been excluded if objected to timely. Id.; see also: Roberson v. Provident House, 576 So.2d 992, 995 (La.1991); Guirard v. Pelican Pub. Co., 04-1085 (La.App. 5th Cir.1/25/05), 895 So.2d 61, 64.

In allowing the pleadings in this case to be enlarged, the trial judge found the affirmative defenses had been addressed sufficiently in memoranda for the prescription issues heard prior to trial to give the Plaintiff notice. After our review of the record, we agree that the Plaintiffs had sufficient notice of the Act of God defense, particularly because it was raised in Essex’s answer to the consolidated suit filed by the trailer park tenants. Nevertheless, even without considering the Acts of God in 1985 and 1991, the Plaintiffs failed to prove more likely than not, [2?that the cause of the damage was the Defendant’s repair, raising and construction of the Federal Westbank Hurricane Protection Levee.

COSTS

The Plaintiffs assert that the trial judge abused her discretion in taxing costs that are not permitted under La.R.S. 13:3666 and 13:4533.

The Plaintiffs first object to the $59,3597.96 awarded for Coastal Environments, Inc. and its principals, Dr. van Beek and Dr. Castille. Coastal submitted invoices for an amount of $65,809.52. Although the trial judge disallowed $10,000, the Plaintiffs argue that the award should be reduced further, because it includes fees for non-testifying “experts” and cannot be taxed. They contend that the Defendant produced bills from Coastal for work performed by approximately 16 Coastal employees, most of whom are not experts with special knowledge and many of whom performed secretarial type services. The Plaintiffs assert that costs attributable to Drs. Castille and van Beek’s assistants should not be included in their costs as they are not experts, did not testify, and mostly performed basic secretarial services. In addition, the Plaintiffs contend that some costs were duplicated, because they were incurred separately for the prescription issue hearings and the trial on the merits; that the amount of time spent preparing, developing and revising the reports was excessive; and that Costal’s costs included work that is not classified as either trial testimony or reasonable trial preparation, such as attending the trial, but not testifying, assisting defense counsel, and travel time. Although Dr. van Beek and Dr. Castille attended nine days of trial, they only testified a total of three days. The Plaintiffs assert that the costs for the other days should not be borne by the Plaintiffs.

133La.R.S. 13:4533 provides that “The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” La.R.S. 13:3666 A provides for costs of expert witnesses that testify in court to be taxed against the party cast in judgment based on the value of the time employed and the degree of learning or skill.

In Yuspeh v. Koch, 02-1179 (La.App. 5th Cir.5/28/03), 848 So.2d 96, 98-99, we stated:

Generally, expert witness fees attributable to trial testimony or depositions introduced as evidence at trial are reeov-erable as costs. Expert witness fees for time spent in preparation for that testimony are also recoverable. However, fees for time spent in consultation and other matters that simply benefit the attorney are not properly taxed as costs. Further, the amount of the expert witness fees must be reasonable. The amount actually charged by the expert does not determine the amount to be taxed as costs. The factors to be considered by the trial judge in setting expert witness fees to be taxed as costs include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of work performed, the knowledge, attainments and skill of the expert, the helpfulness of the expert’s report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and the awards in similar cases. The trial court is afforded great discretion in awarding costs, including expert witness fees, and the costs awarded will not be set aside absent a showing of abuse of that discretion. [Emphasis added.]

The invoices in this matter show that the Coastal experts spent a great deal of time investigating in order to prepare their reports and for trial testimony. They testified at trial. Most of the testimony in this matter consisted of expert testimony, and the issues involved in this matter were detailed and complex. In addition, this case had been ongoing for 16 years, with several hearings requiring preparation, as well as for the trial on the merits. The trial judge disallowed $10,000 of the amount submitted, taking into consideration those items that she found not taxable. | ¡.¿After our review of the record, we find no abuse of discretion in the amount of Coastal’s costs.

The Plaintiffs also argued that costs for the hearings on the prescription issues should be separated and considered waived since the Defendant did not file a Rule to tax those costs timely. The trial judge ruled there was only one trial, noting she altered the order of trial to allow the prescription issue to be tried first, and that she continued the rest of the case pending appellate review of that issue. The prescription issue was addressed in this Court twice, once on appeal, and the other in a writ application. Both times, the matter was remanded. Neither party won, because after the trial of the merits, it was found to be moot. We agree with the trial judge that the merits of the case was simply delayed pending the resolution of the prescription issue. Thus, any costs associated with the prior hearings were attributable to the trial costs.

Also disputed is the award of costs for the surveyor company, J. Dufrene Engineering, Inc. Dufrene testified at the first hearing on prescription issue, but not at trial. Since we agree that the costs associated with the first hearing in 2000 were part of the trial, we find no error in this regard.

Elmer was charged with, and disputes, the costs of the Defendant’s real estate appraiser Henry Tatje for the damages portion of the case. He contends the trial judge abused her discretion in this award, because Tatje failed to consider the most valuable piece of the property, the section with the businesses on it, although the property was expropriated in 1999. The Defendant argued that the appraisal correctly valued the land. The trial judge found the expert’s bill taxable as costs and awarded $8,400. We find no abuse of the trial judge’s discretion in this regard. However, we agree with Elmer that those costs should be reduced by $1,200.

^Generally, only depositions used at trial and introduced and accepted into evidence, are taxable as costs. If a deposition is not used at trial, the cost of the deposition, including deponent’s fee for giving the deposition, may not be taxed as costs. La.R.S. 13:4533; Barrilleaux v. Franklin Foundation Hosp., 96-0343 (La.App. 1st Cir.11/8/96), 683 So.2d 348, 361, writ denied 96-2885 (La.1/24/97, 686 So.2d 864); Lacy v. ABC Ins. Co., 97-1182 (La.App. 4th Cir.4/1/98), 712 So.2d 189, 197.

Tatje’s invoice includes non-taxable items relating to his deposition preparation, his deposition which was not introduced at trial, and a charge related to a meeting with defense counsel. Consequently, we will reduce the amount of costs awarded for Henry Tatje, Inc. from $8,400 to $6,900.

Accordingly, the judgment of the trial court is hereby affirmed in regard to liability. Further, we amend the judgment to reduce the award of court costs from $85,362.54 to $83,862.54.

AFFIRMED AS AMENDED.

      . After this suit was initially filed, the area was officially declared wetlands.

      . This occurred before passage of the Federal Water Pollution Control Act of 1972 and the 1997 amendments, commonly referred to as the "The Clean Water Act.”

      . See: Yates, et al. versus Charles Elmer, et al., No. 417-594 in the 24th Judicial District Court, and 06-CA-75 in this Court, consolidated with this suit.

      . The petition was amended in 1997, and 1998.

      . In 1999, the Defendant filed a petition to expropriate the Plaintiff's property in order to construct the permanent Northern levee now intruding on the property. In 2000, the permanent Northern levee construction commenced. The expropriation is not before the Court in this appeal.

      .Reference is made to the exception of prescription as to the culvert only because it relates to whether the pleadings were enlarged. The exception again and granted in February of 2004. Supervisory writs were taken, and for the second time this Court found the issue premature. We note that the parties stipulated at trial that closing the culvert was not a cause of the Plaintiff’s damages, and we will not address that issue.

      . For the law on taking of private property by a public entity and inverse condemnation, see: La. Const. Art. 6, § 42(A); La.R.S. 38:281(1), 301 through 308; State v. Chambers, 595 So.2d 598 (La.1992); Mitter v. St. John the Baptist Parish, 05-375 (La.App. 5th Cir. 12/27/05) 920 So.2d 263, 266; Lambert v. State Through Dept. of Transp. & Development, 96-160 (La.App. 5th Cir. 10/16/96), 683 So.2d 839, 843.

      . In Elmer v. West Jefferson Levee Dist., 01-249 (La.App. 5th Cir. 111/27/01), 803 So.2d 229, 239, we determined that the Defendant’s actions in raising the Northern levee in 1985-1986 after Hurricane Juan was not a taking, thus was not an expropriation, as the taking of the properly for construction of the levee occurred in the early 1920's with the construction of the four foot "Westwego levee” on the north side of the Elmer property. We find no reason to revisit that decision in this appeal.
      Under the defense of governmental immunity, the public entity is immune from liability for negligence when the acts are discretionary under La. R.S. 9:2798.1, or taken to prepare for an emergency under R.S. 29:735. See; Hontex Enterprises, Inc. v. City of Westwego, 02-506 (La.App. 5th Cir.12/11/02) 833 So.2d 1234, 1240; writ denied, 03-0505, (La.9/5/03), 852 So.2d 1041 and 03-0455 (La.9/5/03), 852 So.2d 1042.

      . Nevertheless, we note that the reasons given by the Defendant for overlooking the Elmer property in the expropriations in 1987 were reasonable. The Northern levee had been raised and construction of the new interim levee there was not as critical to the safety of the public as the adjacent areas It was included in the plan to be addressed at a later date. Furthermore, the evidence shows that the Defendant’s decision in the levee alignment was a discretionary act. Thus, discretionary immunity would relieve it of liability in any event. See: La. R.S. 9:2798.1 and La. R.S. 29:735. For a discussion of governmental immunity, see Hontex Enterprises, Inc. v. City of Westwego, 02-506 (La.App. 5th Cir. 12/11/02) 833 So.2d 1234, 1240; writ denied, 03-0505, (La.9/5/03), 852 So.2d 1041 and 03-0455 (La.9/5/03), 852 So.2d 1042.

      . The Rule to Fix Costs was Bled in April of 2005, heard on December of 2005 and January of 2006, and consolidated with the other two cases for appeal.