author: PITMAN, J.

text:
    George Eric HATFIELD, Hatfield Enterprises, LLC, and Hatfield Development Co., LLC, Plaintiffs-Appellants v. BOSSIER PARISH POLICE JURY, Defendant-Appellee
    No. 52,555-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019 Rehearing Denied May 16, 2019
    SHUEY SMITH, LLC, By: Richard E. Hiller, Shreveport, Counsel for Appellants
    COOK, YANCEY, KING & GALLOWAY, By: Robert Kennedy, Jr., Shreveport, James Ashby Davis, Counsel for Appellee
    Before PITMAN, GARRETT, and BLEICH (Pro Tempore ), JJ.
   PITMAN, J.

Plaintiffs-Appellants George Eric Hatfield; Hatfield Enterprises, LLC; and Hatfield Development Company, LLC; appeal the trial court's denial of their motion for partial summary judgment and the granting of Defendant-Appellee Bossier Parish Police Jury's (the "Police Jury") motion for summary judgment. For the following reasons, we affirm the trial court's denial of Plaintiffs' motion for partial summary judgment, reverse the trial court's granting of the Police Jury's motion for summary judgment and dismissal of Plaintiffs' suit and remand for trial.

FACTS

On April 21, 2014, Plaintiffs filed a petition against the Police Jury alleging that on October 6, 2013, Hatfield Enterprises purchased from Richard Connell for $ 28,000 an airport hangar located at the Downtown Shreveport Airport. Mr. Hatfield agreed to assume all of Mr. Connell's obligations to the Shreveport Airport Authority with respect to the lease agreement covering the hangar. He was aware that property taxes were due to both the City of Shreveport and Bossier Parish because the hangar is located inside the city limits of the City of Shreveport and also within Bossier Parish. In September 2013, he obtained a redemption figure from the revenue department of the City of Shreveport and delivered a check in the amount of $ 2,786.14, representing the redemption of a prior tax adjudication. He also contacted the Bossier Parish Sheriff's Office (the "Sheriff's Office") to obtain the redemption amount for unpaid 2009 Bossier Parish taxes. The Sheriff's Office provided him with a redemption amount, but then advised him that the Police Jury was responsible for handling redemptions that were more than three years old and would provide him with a new redemption amount. He attempted to obtain the new redemption amount from the Police Jury but was never provided with an amount. The Police Jury's policy required Plaintiffs to request that the Police Jury declare the hangar as surplus and have it sold at auction. The auction was conducted on November 2, 2013, and he bid the highest amount, i.e., $ 44,000 plus a 10 percent buyer's premium. He and Hatfield Enterprises obtained a loan with interest to pay the auction price. Plaintiffs alleged that the Police Jury refused to provide them with the redemption amount, that they were entitled to receive this amount and that the refusal resulted in them paying an amount at auction that was substantially more than the amount they were legally required to pay. Plaintiffs argued that the Police Jury failed to follow the provisions of La. R.S. 47:2201 et seq., which govern the sale of adjudicated property by political subdivisions. They contended that the Police Jury failed to follow the notice requirements of La. R.S. 47:2206, which forced them to attend an auction and face the prospect of losing their hangar to the highest bidder. Therefore, they argued that the Police Jury is liable for all amounts over and above the required redemption amount, the interest paid on the loan, reasonable damages, attorney fees and court costs.

On May 19, 2014, the Police Jury filed an answer in which it denied Plaintiffs' allegations and pled affirmative defenses. It argued that Plaintiffs' petition failed to state a cause of action for damages.

On February 26, 2018, Plaintiffs filed a motion for partial summary judgment. They argued that the Police Jury violated the provisions of La. R.S. 47:2246 by failing to provide them with the amount to redeem the adjudicated tax sale and by failing to send the required post-tax sale notices to all interested parties, resulting in an unlawful auction of the hangar.

On May 9, 2018, the Police Jury filed a motion for summary judgment. It argued that Plaintiffs cannot establish that the Police Jury is liable to them and, therefore, that their claims should be dismissed with prejudice. It contended that only Hatfield Enterprises has an interest in the hangar and that the claims of Mr. Hatfield and Hatfield Development Company should be dismissed. It argued that the claims of Hatfield Enterprises should be dismissed because the Police Jury is not the tax collector for Bossier Parish; and, therefore, it cannot be held liable under La. R.S. 47:2241 et seq. It contended that it complied with all applicable state laws in selling Bossier Parish's tax sale title to the hangar. It stated that La. R.S. 47:2206 requires that notice be given when the political subdivision intends to terminate the interest of the tax sale party. It explained that it never intended to terminate the interest of any tax sale party, and the auction resulted in the sale of Bossier Parish's tax sale title. It noted that Hatfield Enterprises had notice and attended the auction. It further contended that Hatfield Enterprises suffered no damages because it acquired full and unburdened ownership of the hangar for less money as a result of the auction. It stated that Hatfield Enterprises originally agreed to pay Mr. Connell $ 198,000, including a $ 170,000 promissory note, for the hangar. As a result of taxes not being paid and the auction, the note was forgiven, and Hatfield Enterprises paid Mr. Connell only $ 28,000. Having gone through the auction, Hatfield Enterprises has full ownership of the hangar and obtained that ownership for $ 76,400 ($ 28,000 to Mr. Connell plus the $ 48,400 auction price), rather than $ 198,000, which is a benefit of $ 121,600.

On July 12, 2018, the trial court filed an opinion. It noted that La. R.S. 47:2243 states that "redemptions shall be made through the tax collector" and that in this case, the Police Jury is not the tax collector. Accordingly, the trial court determined that Plaintiffs cannot establish that the Police Jury is liable to them. It stated that Plaintiffs' claim to redeem tax sale title must be brought against the tax collector for Bossier Parish. Therefore, it found that Plaintiffs could show no genuine issue of material fact. It granted the Police Jury's motion for summary judgment, denied Plaintiffs' motion for partial summary judgment and dismissed Plaintiffs' claims. The trial court filed a final judgment on July 25, 2018.

Plaintiffs appeal.

DISCUSSION

Police Jury's Motion for Summary Judgment

In their first assignment of error, Plaintiffs argue that the trial court erred in finding that their claims must be brought against the tax collector for Bossier Parish and not the Police Jury, resulting in the trial court granting the Police Jury's motion for summary judgment. They note that the trial court relied on La. R.S. 47:2243 and determined that as the Police Jury is not the tax collector for Bossier Parish, then Plaintiffs could not establish that the Police Jury is liable to them. Plaintiffs agree with the trial court's opinion that redemptions must be made through the tax collector of the appropriate political subdivision, which in this case is the Sheriff's Office. They note that the policy in Bossier Parish is that when a tax adjudication is more than three years old, the Sheriff's Office refers all redemption requests to the Police Jury. Thus, Plaintiffs contend that the Police Jury is the proper party defendant at fault in this case. They argue that the Police Jury violated the law that all redemptions shall be made through the tax collector when it took over the redemption duties of the Sheriff's Office regarding the tax adjudication of the hangar. They state that the Sheriff's Office did nothing wrong in this case. Therefore, Plaintiffs argue that the trial court erred when it concluded that the Police Jury cannot be held liable to them because of the argument that the Police Jury is not the tax collector.

The Police Jury emphasizes that, pursuant to La. R.S. 47:2243, redemptions of tax sale title to adjudicated property are made through the tax collector of the appropriate political subdivision, which in Bossier Parish is the Sheriff's Office, not the Police Jury. Therefore, it contends that the Sheriff's Office is the sole entity responsible for redemptions in Bossier Parish, and Plaintiffs have failed to identify any basis for a statutory duty owed by the Police Jury to them.

An appellate court reviews a trial court's granting of summary judgment de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880.

La. R.S. 47:2243 states, in pertinent part, that "[r]edemptions shall be made through the tax collector of the appropriate political subdivision." La. R.S. 47:2246(A) states:

For property adjudicated to a political subdivision, after the expiration of the applicable redemptive period, any person may redeem tax sale title to property in the name of the tax debtor until any of the following shall occur:
(1) The later of sixty days or six months, as applicable, after the notice required by R.S. 47:2206, or the filing of the sale or donation transferring the property from the political subdivision pursuant to R.S. 47:2201 et seq.
(2) The granting of the order of possession pursuant to R.S. 47:2232.
(3) Sixty days or six months, as applicable, after the notice required by R.S. 47:2236.

A 2008 comment to La. R.S. 47:2246 notes:

This Section is new. It codifies current practice. As long as property remains on the adjudicated rolls, and neither a political subdivision nor an acquiring person has obtained full ownership, the property may be redeemed as a matter of statutory right even though the redemptive period under the Louisiana Constitution has expired.

Effective January 1, 2009, the Louisiana Legislature enacted new legislation regarding immovable property taxes, tax sales and redemptions. 2008 La. Acts No. 819; see La. R.S. 47:2121 et seq. The previous legislation stated that redemptions could not occur after three years had lapsed from the time of the tax sale. See Burns v. Harris , 41,881 (La. App. 2 Cir. 5/23/07), 957 So.2d 921, writ denied , 07-1307 (La. 10/5/07), 964 So.2d 940, and writ denied , 07-1403 (La. 10/5/07), 964 So.2d 941 (discussing La. R.S. 47:2221 and 2222, which have since been repealed). The newly enacted La. R.S. 47:2246 contains an exception to this former legislation.

The trial court in this case erred in its reliance solely on La. R.S. 47:2243 and failure to consider the applicability of La. R.S. 47:2246. Considering La. R.S. 47:2246(A), the Police Jury failed to comply with parts (1), (2) or (3), so Plaintiffs have the right to redeem. Plaintiffs were clearly deprived of the right to redeem under this statute, as the property had been adjudicated to the Police Jury. The internal policy dictated by the Police Jury, i.e., requiring that it handle all tax sale adjudications that are past the three-year period of redemption and that the property be sold at auction, resulted in a profit to both the Police Jury and the auction company. The Police Jury's policy also prevents the Police Jury and the Sheriff's Office from complying with the statutes enacted in 2009, including La. R.S. 47:2246. The Police Jury has not been absolved from liability under the circumstances of this case. Therefore, as the trial court erred in its failure to apply La. R.S. 47:2246, it erred in granting the Police Jury's motion for summary judgment and dismissing Plaintiffs' suit. We remand this case for trial as genuine issues of material fact exist as to fault and the calculation of damages.

Accordingly, this assignment of error has merit.

Plaintiffs' Motion for Partial Summary Judgment

In their second assignment of error, Plaintiffs argue that the trial court erred in ruling that they could not establish their claims against the Police Jury, which resulted in the trial court denying their motion for partial summary judgment. They state that pursuant to La. R.S. 47:2246, after the expiration of the applicable redemptive period, any person may redeem tax sale title to property unless that person has received the post-tax sale notice set forth in La. R.S. 47:2206. They contend that they had a right to redeem the Bossier Parish tax adjudication on the hangar from the Sheriff's Office. They state that the Police Jury did not provide the post-tax sale notice required in La. R.S. 47:2206 and failed to comply with La. R.S. 47:2246. Therefore, Plaintiffs argue that there were no genuine issues of fact in dispute and that they were entitled to judgment as a matter of law finding that the Police Jury violated La. R.S. 47:2246.

The Police Jury argues that Plaintiffs sought the wrong form of relief, at the wrong time and from the wrong party. It contends that Plaintiffs have no cause of action against it and that the trial court's dismissal of Plaintiffs' claims should be affirmed. It contends that Hatfield Enterprises could have sought a writ of mandamus against the Sheriff's Office to obtain a redemption amount and force a redemption tax sale title to the hangar. It also contends that Mr. Hatfield and/or Hatfield Enterprises could have requested that the Police Jury not proceed with the auction process that they requested. The Police Jury notes that neither Mr. Hatfield nor Hatfield Development ever owned the hangar, so neither suffered any damages. It alleges that Hatfield Enterprises benefited in the amount of $ 121,600 from the procedures the Police Jury employed and, thus, did not suffer any damages.

As discussed above, the trial court erred in determining that Plaintiff's sole recourse is against the Sheriff's Office as the tax collector. Fault, including that of the Police Jury, shall be determined on remand at a trial on the merits of this case. The Police Jury's arguments that Plaintiffs should have filed an injunction or a mandamus action are more properly addressed when considering fault and calculating damages. Therefore, genuine issues of material fact exist as to fault and damages, and the trial court did not err in denying Plaintiffs' motion for partial summary judgment.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's denial of the motion for partial summary judgment filed by Plaintiffs-Appellants George Eric Hatfield; Hatfield Enterprises, LLC; and Hatfield Development Company, LLC. We reverse the trial court's granting of Defendant-Appellee Bossier Parish Police Jury's motion for summary judgment and dismissal of Plaintiffs' suit, and we remand for trial. Costs of appeal are assessed to the Bossier Parish Police Jury in the amount of $ 2,410.50.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

APPLICATION FOR REHEARING

Felcia Toney Williams, Frances Jones Pitman - Writing, Jeanette Giddens Garrett, Shonda D. Stone, and E. Joseph Bleich.

Rehearing denied.

      Our review of the record demonstrates that only Hatfield Enterprises, LLC, as purchaser of the hangar, has standing in this case.

      The trial court's opinion refers to "La. R.S. 47:2343," but this appears to be an error. The statute quoted by the trial court is La. R.S. 47:2243.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Johnnie CRUMP, Plaintiff-Appellant v. LAKE BRUIN RECREATION AND WATER CONSERVATION DISTRICT, Defendant-Appellee
    No. 52,559-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019
    ANTHONY J. BRUSCATO, Monroe, Counsel for Appellant
    GOLD, WEEMS, BRUSER, SUES & RUNDELL, By: Eugene J. SuesBrandon A. Sues, Alexandria, Counsel for Appellee Lake Bruin Recreation and Water Conservation District
    BLAKE E. RYLAND, LEISA B. LAWSON, ASSISTANT ATTORNEY GENERALS, Counsel for Appellee La. Dept. of Culture, Recreation & Tourism
    Before MOORE, PITMAN, and McCALLUM, JJ.
   MOORE, J.

Johnnie Crump appeals a judgment that sustained two motions for summary judgment and dismissed his personal injury claims. For the reasons expressed, we affirm.

FACTS

In May 2015, Crump went to Lake Bruin State Park, in Tensas Parish, to go fishing. He entered the park, walked out on one of the piers, set down his tackle box, and turned around to get something out of his car. However, on his first step toward the car, his right foot went through a rotten plank. He fell backwards, his right leg going all the way through the hole, and the rest of him trapped on the surface of the pier until EMTs arrived. The incident cut and scraped his right leg, sprained his left wrist, and generally hurt his shoulder, neck and back.

PROCEDURAL HISTORY

Crump filed this suit against the Lake Bruin Recreation & Water Conservation District ("the Conservation District") on May 9, 2016, alleging that it was a political subdivision of the State of Louisiana and was either negligent or strictly liable for his injuries.

The Conservation District filed an exception of no cause of action as to any claim for strict liability; the district court sustained this, based on La. R.S. 9:2800C, and Crump did not seek review of that ruling. The court set trial for September 18, 2017. The State of Louisiana, though not named a defendant, filed an answer denying any liability.

Crump filed a supplemental and amending petition joining as defendant the State Department of Culture, Recreation & Tourism ("the State") on November 21, 2016. This alleged that the State maintained the park premises and failed to inspect or repair the pier. The State answered asserting the Recreational Use Immunity statute, La. R.S. 9:2795.

In April 2017, the Conservation District filed the instant motion for summary judgment asserting that it did not own, maintain, control, or have care or responsibility for the park; rather, the State did. In support, it attached the affidavit of its president, David McEacharn, who attested to these facts and that the Conservation District did not even have any employees at the park. The court set the MSJ for hearing on August 2.

In May 2017, the State filed a motion to substitute counsel. Within a few weeks, new counsel noticed a records deposition to Crump regarding his income for the three preceding years. On June 16, the State asked for a continuance of the trial, set for September 18, since counsel had just enrolled.

On the same date, June 16, the State filed this motion for summary judgment asserting R.S. 9:2795. In support, it attached the deposition of the program director of the Office of State Parks, Gary Ramsey, who asserted that Lake Bruin was a state park, not commercial, and was designed for recreational purposes; and that there had been no other accidents reported on its piers. The court set this MSJ for hearing also on August 2.

A month later, on July 17, the State filed an "unopposed" motion for continuance urging that discovery was not yet complete. The court reset both MSJs for hearing on November 9.

On October 25, Crump filed an opposition to the State's MSJ, arguing chiefly that R.S. 9:2795 provides no immunity for willful failure to warn or for gross negligence. In support he offered his own affidavit, in which he said that after the accident he talked to some park employees, and they told him that "everyone at the park had known for quite awhile [sic ] that pier boards had gotten old and weak" and "work orders had been put in" but the "maintenance work had not been authorized[.]" He also filed a motion for continuance arguing that he had sent discovery requests to the State on August 26, 2016, received no response till July 7, 2017, and he (the plaintiff) needed more time to find "key witnesses." The court continued the hearing on both MSJs without date.

On November 13, 2017, the court set both MSJs for hearing on April 4, 2018. In early March 2018, Crump noticed depositions of five fact witnesses, to be held on March 9, 2018 (26 days before the hearing). Crump's counsel received the transcripts of these depositions on March 29 (6 days before the hearing).

On April 2, 2018 (2 days before the hearing), Crump filed a motion for permission to file supplementary exhibits in opposition to the MSJs - specifically, the five depositions he just took. These, he argued, pointed to the need for additional written discovery. Crump also filed a motion for continuance asserting that discovery "remains incomplete."

The Conservation District and the State opposed both motions.

ACTION OF THE DISTRICT COURT

At the hearing on April 4, 2018, Crump's counsel argued that he had learned about the "work order" only one day before he took the depositions, but the pier was never closed, the work never done, and then Crump fell through it. The court denied Crump's motion to file supplementary exhibits, but allowed counsel to proffer them. The court also denied Crump's motion for continuance, noting that the MSJs had been pending for almost a year.

After hearing argument, the court granted both MSJs, finding no evidence or legal authority that the Conservation District owned Lake Bruin Park, and finding that the Recreational Use Immunity statute barred the claim against the State.

The court rendered one judgment sustaining both MSJs and certifying this action as final. Crump has appealed, raising four assignments of error.

DISCUSSION

Supplementary Opposition and Motion for Continuance

By his first assignment of error, Crump urges the court erred or abused its discretion in denying the plaintiff's motion to file a supplementary summary judgment opposition consisting of the March 9, 2018, depositions and attachments and plaintiff's memorandum containing pinpoint cites to the relevant deposition testimony. By his second assignment, Crump urges the court erred or abused its discretion in denying the plaintiff's motion to continue the hearing date.

Crump concedes that under La. C.C.P. art. 966, a defendant may move for summary judgment at any time; however, Crump considers it a "first strike" MSJ when a defendant files an MSJ shortly after being served and before any discovery has taken place. He contends that both of these MSJs were filed and set for hearing before he received any response to his written discovery requests. Specifically, in July 2017, both motions had been filed, but the plaintiff had just then learned the names of the witnesses, and had no other option than to move for continuance. (Crump suggests that he was being "too courteous" to defense counsel, and should have immediately moved for sanctions when the State failed to answer his discovery.) He also shows that he had difficulties scheduling the depositions: he asked for four deposition dates between July and November 2017, and by the time the State responded, the only available date was March 9, 2018; as the hearing was already set for April 4, this set up an "ambush." (Here, Crump reiterates that he was "too courteous" and should have simply subpoenaed the witnesses.) He concludes that in these circumstances, the denial of these motions was unfair and incentivizes bad and contentious behavior.

Motions for, and oppositions to, summary judgment are regulated by La. C.C.P. art. 966B:

B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.
(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.
(4) If the deadline for filing and serving a motion, an opposition, or a reply memorandum falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday.

A plain reading of this subsection is that summary judgment procedure will usually encompass three filings: a motion, an opposition, and a reply. There is no provision for a surreply or supplementary opposition. Baez v. Hospital Service Dist. No. 3 , 16-951 (La. App. 3 Cir. 4/5/17), 216 So.3d 98. A court may, in its discretion, permit a surreply to allow the opponent to contest matters presented for the first time in the mover's reply, if the surreply is filed within the delays of Art. 966B. Dufour v. Schumacher Group of La. Inc. , 18-20 (La. App. 3 Cir. 8/1/18), 252 So.3d 1023, writ denied , 2018-1456 (La. 11/20/18), 256 So.3d 991. A surreply may not be used to correct an alleged mischaracterization or to reiterate arguments already made. Id. , citing Nix El v. Williams , 174 F.Supp.3d 87 (D.D.C. 2016). Crump's motion for permission to file a supplementary memorandum in opposition to MSJ alleged only that counsel wished to provide pinpoint citations to key testimony and exhibits. There is no assertion that the State raised, in its reply memorandum, new issues requiring a response. Moreover, Crump's motion was filed a mere two days before the scheduled hearing on the MSJs - after the deadline for the filing of final papers under Art. 966B(3) and on the same short notice that was rebuffed in Dufour v. Schumacher Group , supra . On this record, the district court did not abuse its discretion in denying leave of court to file the supplementary memorandum.

A defendant's motion for summary judgment may be filed at any time. La. C.C.P. art. 966A(1). Before the motion can be granted, the law requires an opportunity for adequate discovery. La. C.C.P. art. 966A(3). There is no absolute right to delay action on a motion for summary judgment until discovery is completed; the only requirement is that the parties get a fair opportunity to present their claims. Simoneaux v. E.I. du Pont de Nemours & Co. , 483 So.2d 908 (La. 1986) ; Dean v. State Farm Mut. Auto. Ins. Co. , 51,243 (La. App. 2 Cir. 4/5/17), 217 So.3d 611. The mere contention of an opponent that he lacks sufficient information to defend the motion and needs additional time to conduct discovery is insufficient to defeat the motion. Dean v. State Farm , supra ; Barron v. Webb , 29,707 (La. App. 2 Cir. 8/20/97), 698 So.2d 727, writ denied , 97-2357 (La. 11/26/97), 703 So.2d 651 ; Gorbach v. Tulane Univ. Med. Ctr. , 2011-1575 (La. App. 4 Cir. 4/11/12), 89 So.3d 429, writ denied , 2012-1063 (La. 6/22/12), 91 So.3d 978. The district court has the discretion to render a summary judgment or to require further discovery. Simoneaux v. E.I. du Pont , supra ; Dean v. State Farm , supra .

This accident occurred on May 9, 2015; Crump filed suit against the Conservation District on May 9, 2016; the State answered the suit on July 12, and Crump joined the State as a defendant on November 21, 2016. The Conservation District filed its MSJ on April 27, 2017; the State moved for a continuance and filed its MSJ on June 16, 2017. The hearings were initially set for August 2, 2017 (1 ½ months after the State's MSJ), but the State filed an unopposed motion for continuance on July 17, and the hearings were reset to November 9, 2017 (nearly 5 months after the State's MSJ). On October 26, Crump filed a motion for continuance, and the hearings were reset for April 4, 2018 (9 ½ months after the State's MSJ). This period is not unreasonably short, and is longer than the 6 months we found adequate in Dean v. State Farm , supra , the 5 ½ months found adequate in Williams v. A Day To Remember Invitations LLC , 06-757 (La. App. 5 Cir. 3/13/07), 956 So.2d 30, the 4 months in Sibert v. National Oilwell Varco , 48,789 (La. App. 2 Cir. 2/26/14), 136 So.3d 283, and the 2 ½ months in Petch v. Humble , 41,301 (La. App. 2 Cir. 8/23/06), 939 So.2d 499, writ denied , 2006-2482 (La. 12/15/06), 945 So.2d 692.

We are sensitive to the fact that the State filed two motions for continuance, and apparently delayed responding to discovery requests for over 10 months. We also recognize that when Crump's counsel was finally able to schedule depositions, the first available date was March 9, 2018, and transcripts were not available until March 29, right before the Easter holidays. However, Crump also filed a motion for continuance (October 26, 2017), so the matter was continued three times, for a total of 9 ½ months. The district court did not abuse its discretion in finding this was sufficient time for adequate discovery and in denying the fourth motion for continuance. These assignments of error lack merit.

Recreational Use Immunity Statute

By his third assignment of error, Crump urges the district court erred in granting the State's MSJ. He concedes that the State may assert the Recreational Use Immunity statute, R.S. 9:2795, but contends that the summary judgment evidence creates a genuine issue as to "gross negligence," which is defined as "want of even slight care and diligence" and "want of that diligence which even careless men are accustomed to exercise," Brown v. ANA Ins. Group , 2007-2116 (La. 10/14/08), 994 So.2d 1265, or as "recklessness or reckless disregard," Solow v. Heard McElroy & Vestal LLP , 44,042 (La. App. 2 Cir. 4/8/09), 7 So.3d 1269, writ denied , 2009-1035 (La. 9/4/09), 17 So.3d 961. In support, he quotes from the depositions (which, as noted, were not admitted, but only proffered), and argues that park employees had "actual knowledge" of the dilapidated condition of the pier by May 7, 2015, when the work order was issued, but failed to post warnings of the danger. He concludes that this created a genuine issue that the State was grossly negligent.

The Recreational Use Immunity statute defines "land" and "recreational purposes," La. R.S. 9:2795A(1) and (3), but the parties do not dispute that the pier at Lake Bruin, and Crump's fishing trip on May 9, 2015, satisfied these definitions. The parties also do not dispute the fact that the State may claim the immunity, R.S. 9:2795E(1). The issue concerns the precise application of the immunity provision:

B. (1) Except for a willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land * * * who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Incur liability for injury to any person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
E. * * * (2) (d) The limitation of liability as extended to parks in this Section shall not apply to intentional or grossly negligent acts by an employee of the public entity.

In general, mere knowledge and appreciation of a risk does not constitute intent, and reckless or wanton conduct does not constitute intentional wrongdoing. Stanley v. Airgas-Southwest Inc. , 2015-0274 (La. 4/24/15), 171 So.3d 915 ; Sibert v. National Oilwell Varco , supra . For purposes of R.S. 9:2795, a failure to warn of a dangerous condition connotes a conscious course of action, and is deemed willful or malicious when action is taken or not taken, which would likely cause injury, with conscious indifference to the consequences thereof. Wood v. State , 43,457 (La. App. 2 Cir. 8/13/08), 989 So.2d 280, writ denied , 2008-2192 (La. 11/14/08), 996 So.2d 1094 ; Lambert v. State , 40,170 (La. App. 2 Cir. 9/30/05), 912 So.2d 426, writs denied , 2005-2310, -2311 (La. 4/17/06), 926 So. 2d 509; Robinson v. Jefferson Parish Sch. Bd. , 08-1224 (La. App. 5 Cir. 4/7/09), 9 So.3d 1035, 246 Ed. L. Rep. 497, writ denied , 2009-1187 (La. 9/18/09), 17 So.3d 975. The duty to warn does not extend to a potentially dangerous condition which should have been observed by a person in the exercise of reasonable care or which is just as obvious to the property owner as to a visitor. Wood v. State , supra ; Price v. Exxon Corp. , 95-0392 (La. App. 1 Cir. 11/9/95), 664 So.2d 1273.

Crump's original petition, against the Conservation District, alleged "allowing a ruin, vice, or defect to exist" and "failure to exercise such reasonable care by replacing defective and/or rotten planks on the pier"; the amended petition, joining the State as defendant, alleged failure to "either timely inspect and/or repair the section of the pier" where the accident occurred. This articulates the existence of a dangerous condition, but does not assert any willful or malicious failure to warn against it. R.S. 9:2795B(1).

Further, the affidavit of Gary Ramsey, the program director at the Office of State Parks, stated that "no other accidents or incidents involving piers" at Lake Bruin had occurred before Crump's accident. There was nothing from which the court could charge the State with actual or constructive knowledge that the pier was in such a condition that a person would fall through it. Even if Crump could establish that the State had knowledge and appreciation of the risk, this does not show intentional or grossly negligent conduct. R.S. 9:2795E(2)(d).

In short, Crump did not offer any summary judgment evidence that would create a genuine issue as to whether the Recreational Use Immunity statute applied. The district court did not err in sustaining the State's MSJ, and this assignment of error lacks merit.

Limitation of Liability for Public Bodies

By his fourth assignment of error, Crump urges the district court erred in granting the Conservation District's MSJ. Crump shows that the Conservation District is a political subdivision of the State, La. R.S. 38:3087.93A, has complete control over the supply of fresh water to the lake, R.S. 38:3087.93C, has the authority to prescribe the manner of building piers extending into the lake, R.S. 38:3087.99(3), and has the power to construct all other facilities to accommodate the public, R.S. 38:3087.105. He also cites a recent brochure, provided in response to discovery, which stated that the Conservation District has "a permit process for building new piers or adding to existing piers on the lake." He concludes that in practice , the Conservation District took full responsibility for the condition of the pier, thus creating a genuine issue whether the pier was under its care and custody.

The Conservation District is a political subdivision of the State, La. R.S. 39:3807.93A, thus making it a "public entity" for purposes of limitation of liability, La. R.S. 9:2800G(1). "A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody." La. R.S. 9:2800A. To recover against a public entity for damages due to a defective thing, a plaintiff must prove (1) the thing that caused the damage was in the custody of the public entity, (2) the thing was defective due to a condition creating an unreasonable risk of harm, (3) the entity had actual or constructive knowledge of the condition yet failed to take corrective action within a reasonable time, and (4) the defect was a cause of the plaintiff's harm. Broussard v. State , 2012-1238 (La. 4/5/13), 113 So.3d 175 ; Passon v. Fields , 50,635 (La. App. 2 Cir. 5/18/16), 196 So.3d 645. Failure to prove any one of these elements is fatal to the plaintiff's case. Netecke v. State , 98-1182 (La. 10/19/99), 747 So.2d 489 ; Passon v. Fields , supra .

In support of its MSJ, the Conservation District offered the deposition of its president, David McEacharn, who stated that the Conservation District did not "own, maintain, control or have any responsibility for" the pier on which Crump was injured, but that the State had "ownership, responsibility, and control" thereof. As noted earlier, the deposition of the Office of State Parks' program director, Gary Ramsey, attested that Lake Bruin is a State Park. In short, the summary judgment evidence excludes any genuine issue as to the material fact of ownership. The Conservation District does not have custody of the pier.

We have closely examined the legislation regarding the Conservation District, 1995 La. Acts No. 1045. Crump correctly shows that the Conservation District is a political subdivision of the State, R.S. 38:3087.93A, and has complete control over the supply of fresh water to the lake, R.S. 38:3087.93C. We also find, however, that Act 1045 provides that the Conservation District may make and enforce rules to prescribe the manner of building piers, R.S. 38:3087.99(3), and confers on it the "power to cause to be created and constructed" all facilities to accommodate the public, R.S. 38:3807.105 (consistent with the text of the Lake Bruin brochure). Nothing in Act 1045 gives the Conservation District custody of the pier, although the legislature could have so provided, as it did, for example, in an act granting the New Orleans Levee Board "exclusive jurisdiction, administration and control" over reclaimed lands and "title to those areas reclaimed." See Socorro v. City of New Orleans , 579 So.2d 931 (La. 1991), fn. 6. This court is aware of no jurisprudence conferring on a Water Conservation District the custody of a pier for purposes of R.S. 9:2800.

The summary judgment evidence excludes every genuine issue of material fact, and the applicable law, Act 1045, shows that the Conservation District is entitled to judgment as a matter of law. This assignment of error lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiff, Johnnie Crump.

AFFIRMED .