                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #075


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 6th day of December, 2016, are as follows:



BY KNOLL, J.:


2016-CA-0087      DANA JOHNO v. JOHN DOE, ET AL. (Parish of Plaquemines)

                  Accordingly, we affirm the District Court's finding that La. R.S.
                  Section 9:2800.17 is unconstitutional as applied retroactively,
                  because the plaintiff's causes of action accrued before effective
                  date of the statue.        We remand this matter for further
                  proceedings consistent with this opinion.
                  AFFIRMED AND REMANDED.
12/06/16


                         SUPREME COURT OF LOUISIANA

                                      NO. 2016-CA-0087

                                        DANA JOHNO

                                            VERSUS

                                     JOHN DOE, ET AL.

                         ON APPEAL
        FROM THE TWENTY-FIFTH JUDICIAL DISTRICT COURT
               FOR THE PARISH OF PLAQUEMINES

KNOLL, J.

       In this appeal, the District Court declared the immunity statute at issue, La.

R.S. § 9:2800.17, unconstitutional as applied retroactively to the facts of this case.1

The plaintiff, Dana Johno, filed suit against Plaquemines Parish Government

(“PPG”) and numerous other defendants alleging his house was unlawfully

demolished by PPG and its agents after Hurricane Katrina. The plaintiff

subsequently moved to have La. R.S. § 9:2800.17, which provided retroactive

statutory immunity to the government and its agents for certain actions taken in the

wake of Hurricane Katrina, declared unconstitutional. The District Court granted

the plaintiff’s motion. Significantly, the issue of immunity was never raised or

argued by PPG. Only one of the defendants, Hard Rock Construction, LLC (“Hard

Rock”), one of the contractors for PPG, has appealed the District Court’s ruling.

For the following reasons, we affirm.




1
  Although originally designated as La. R.S. § 9:2800.16, the statute at issue in this case was later
renumbered to La. R.S. § 9:2800.17, and will be referred to as such for the purpose of this
opinion. Additionally, this statute expired in 2008 and the section number has been reassigned to
a different provision. The pertinent text of La. R.S. § 9:2800.17 is contained below on page two.
                        FACTS AND PROCEDURAL HISTORY

         The plaintiff alleges he was the owner of a house located at 183 Foster Lane

in Buras, Louisiana, which house was physically moved by floodwater to 220

Perry Lane, an adjacent lot. He alleges he examined his house, was unable to

remove valuable materials, and placed numerous signs on his house which stated

“Do Not Demolish—Property of Dana Johno” with his phone number on the signs.

The plaintiff alleges, and the defendants do not contest, that this house was

demolished by contractors acting on behalf of PPG before the June 15, 2006

effective date of the act creating the immunity provision found in La. R.S. §

9:2800.17.2 After the plaintiff filed suit for claims related to this demolition,

including negligence, gross negligence, conversion and trespass, one of the

contractor defendants asserted immunity under La. R.S. § 9:2800.17, which

provided in pertinent part:

         A. (1) The state, or any political subdivision thereof, or any public
         entity, meaning and including the state and any of its branches,
         departments,       offices,     agencies,     boards,      commissions,
         instrumentalities, officers, officials, employees, and their agents,
         employees, contractors, volunteers, or representatives engaged in any
         operational decisions or activities in the aftermath of Hurricanes
         Katrina and Rita shall not be civilly liable for the death of, or any
         injury to, any person or damage to property as a result of such
         activity, except in the event of gross negligence or willful misconduct.

The statute’s implementing act, Act 402 of the 2006 Regular Legislative Session,

expressly states this provision applies retroactively:

         Section 2. The provisions of this Act shall have both prospective and
         retroactive application and shall be applied retroactively to August 29,
         2005.

         In turn, the plaintiff submitted a motion to declare La. R.S. § 9:2800.17

unconstitutional, providing notice to the Attorney General as required pursuant to

La. R.S. § 13:4448. Two of the contractor defendants submitted oppositions to

plaintiff’s motion, and the Attorney General filed a memorandum in support of the


2
    The plaintiff alleges he discovered the house had been destroyed on January 11, 2006.
                                                  2
statute’s constitutionality. After oral argument, the District Court took the matter

under advisement. The District Court, quoting at length this Court’s decision in

Burmaster v. Plaquemines Parish Government, 07-2432 (La. 5/21/08), 982 So.2d

795, granted plaintiff’s motion, stating in its Reasons for Judgment:

        Based on the Supreme Court’s reasoning in Burmaster, it would be
        unconstitutional to retroactively apply La. R.S. 9:2800.17 as it existed
        from June 2006 to August 2008 to plaintiff’s claims. Plaintiff’s home
        was demolished prior to the effective date of the statute; thus, his
        cause of action accrued prior to the enactment of the statute. Because
        his cause of action accrued before the statute went into effect, it would
        be unconstitutional to apply the statute retroactively.

Hard Rock, alleged to be the supervising contractor in the demolition, filed

supervisory writs to the Court of Appeal, which properly found it had no

jurisdiction and transferred Hard Rock’s application to this Court pursuant to La.

Const. art. V. § 5(D). No other defendant, including PPG, has joined in this appeal;

neither is the Attorney General appearing before us.

                                    DISCUSSION

        Defending the constitutionality of the retroactive application of La. R.S. §

9:2800.17 to plaintiff’s claims, Hard Rock insists that Burmaster v. Plaquemines

Parish Government, 07-2432 (La. 5/21/08), 982 So.2d 795 is “easily

distinguishable” because it involved a claim regarding failure to maintain a levee

rather than a debris removal issue. Hard Rock avers the statute at issue does not

negate any cause of action the plaintiff may have, but that it merely prescribes the

method of enforcement of plaintiff’s rights. We disagree.

        We affirm the District Court’s finding that this Court’s decision in

Burmaster is directly on point. The statute at issue in that case, designated as La.

R.S. § 9:2800(H) and originating from La. Act 545 of 2006, provided in pertinent

part:

        (1) Notwithstanding any provision of law to the contrary, except
        for gross negligence or willful and wanton misconduct, no person
        shall have a cause of action based solely upon liability imposed for

                                           3
      Civil Code Articles 2317 and 237.1 against a public entity for any
      damages arising from hurricanes Katrina or Rita, including
      aftereffects of either hurricane and post hurricane restoration, repair,
      cleaning, and construction.

Burmaster involved a different plaintiff who filed a suit against PPG, seeking

damages for harm allegedly caused by PPG’s failure to properly maintain the

hurricane protection levees in the parish. After noting that La. Act 454 of 2006

clearly expressed the Legislature’s intent for its provisions to be retroactive, this

Court looked to past precedent, finding:

    When a party acquires a right to assert a cause of action prior to a
    change in the law, that right is a vested property right which is
    protected by the guarantee of due process. Walls v. American Optical
    Corp., 98–0455, p. 8 (La.9/8/99), 740 So.2d 1262, 1268. See also Cole
    [v. Celotex Corp.], 599 So.2d [1058] at 1063 [(La.1992)]; Crier v.
    Whitecloud, 496 So.2d 305, 308 (La.1986); Faucheaux v. Alton
    Ochsner Medical Found. Hosp. & Clinic, 470 So.2d 878, 878–79
    (La.1985); Lott [v. Haley ], 370 So.2d [521]at 524 [(La. 1979)];
    Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387
    (La.1978). Thus, a cause of action, once accrued, cannot be divested by
    subsequent legislation….

      Burmaster v. Plaquemines Par. Gov't, 982 So.2d at 807–08, quoting

Bourgeois v. A.P. Green Indus., Inc., 2000-1528 (La. 4/3/01), 783 So.2d 1251 at

58-59.

      Accordingly, the Court in Burmaster found the plaintiff’s claim for

negligence against PPG had already accrued at the time the immunity statute at

issue was implemented; thus, plaintiff could not be constitutionally divested of its

cause of action through retroactive application of the statute. Although the nature

of defendants’ alleged actions in this case are different from those alleged by the

plaintiffs in Burmaster, this distinction is without a difference. We find the

demolition of the plaintiff’s house falls as squarely under the immunity provisions

of La. R.S. § 9:2800.17 as the alleged failure to properly maintain the levees fell

under the immunity provision applicable in Burmaster. Thus, as in Burmaster, the

plaintiff in this case may not be retroactively deprived of causes of actions which


                                           4
vested when his house was demolished prior to the implementation of the

immunity statute at issue.

      Hard Rock cites to Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331

(La. 1978) in support of its assertion that the statute at issue merely proscribes the

burden of proof for plaintiff’s claim. We find Ardoin is distinguishable from the

present case. In Ardoin, this Court approved the retrospective application of a

statute which further defined the standard of care in medical malpractice cases for

different types of physicians. Id. The plaintiff, representing a decedent who had

passed away after heart by-pass surgery, sued the doctors who performed the

surgery and who had held themselves out as specialists. Subsequent to the surgery,

the Legislature specified that specialists would be held to the degree of care

practiced by other specialists, even if not practicing in the same locality. Finding

the lower courts erred in failing to apply the statute retroactively, this Court found

it to be merely procedural and interpretative, more precisely determining the

standard of care or skill required by certain classes of physicians. Id. at 1339.

      The Burmaster case, which followed this Court’s decision in Ardoin,

declined to extend Ardoin’s holding, addressing at length the argument that the

statute at issue merely heightened the burden of proof to require a showing of gross

negligence or willful misconduct:

      Black's Law Dictionary 209 (8th ed.2004) defines “burden of proof”
      generally as “[a] party's duty to prove a disputed assertion or charge.”
      Black's entry for “burden of proof” also includes this definition of
      “middle burden of proof”: “A party's duty to prove a fact by clear and
      convincing evidence. This standard lies between the preponderance-
      of-the-evidence standard and the beyond-a-reasonable-doubt
      standard.” Id. The following quote also appears in Black's “burden of
      proof” entry:

             The expression “burden of proof” is tricky because it has
             been used by courts and writers to mean various things.
             Strictly speaking, burden of proof denotes the duty of
             establishing by a fair preponderance of the evidence the
             truth of the operative facts upon which the issue at hand
             is made to turn by substantive law. Burden of proof is

                                           5
             sometimes used in a secondary sense to mean the burden
             of going forward with the evidence. In this sense it is
             sometimes said that a party has the burden of countering
             with evidence a prima facie case made against that party.

      Id. (quoting William D. Hawkland, Uniform Commercial Code Series
      § 2A–516:08 (1984)).

      Thus, even though the term “burden of proof” to [sic] is used to refer
      to “various things,” the term technically applies only to the three
      levels of burden of proof that are recognized by courts—i.e., (1)
      preponderance of the evidence, (2) clear and convincing evidence, and
      (3) beyond a reasonable doubt. These are the three levels of burden of
      proof recognized by Louisiana courts. Even though one might
      imprecisely refer to a plaintiff's burden of proving ordinary
      negligence, as opposed to proving gross negligence, as the plaintiff's
      “burden of proof,” that term does not technically apply.

      Burmaster, 982 So.2d at 809.

      The Burmaster Court further concluded:

      The fact that the statute provides an exception in cases where the
      plaintiff can prove gross negligence or willful and wanton misconduct
      does not mean that the only effect of 2006 La. Act 545 was a
      procedural change in the burden of proof under La. Civ.Code arts.
      2317 and 2317.1. Indeed, 2006 La Act 545 established a new rule,
      making it substantive under the definition set forth by this court in
      Manuel [v. La. Sheriff's Risk Mgmt. Fund, 95–0406 (La.11/27/95),
      664 So.2d 81)] and Sudwischer [v. Estate of Hoffpauir, 97–0785
      (La.12/12/97), 705 So.2d 724] Despite the existence of the exception,
      the effect of 2006 La. Act 545 is to eradicate a large portion of the
      liability that could otherwise have been imposed on public entities for
      damages caused by Hurricane Katrina. For the foregoing reasons,
      we find no merit to PPG's argument that 2006 La. Act 545 did not
      divest the plaintiffs of any vested rights, but merely changed the
      plaintiffs' burden of proof.

      Id. at 810 (emphasis supplied).

Applying our analysis in Burmaster to this case, we find retroactive application of

La. R.S. § 9:2800.17 does not merely change the plaintiff’s burden of proof but

clearly deprives the plaintiff of his vested right to bring causes of action beyond

those arising from the defendants’ gross negligence or willful misconduct.

                                     DECREE

      When a party acquires a right to assert a cause of action prior to a change in

the law, that right is a vested property right which is protected by the guarantee of

                                         6
due process. Burmaster, 982 So.2d at 807–08 (citations omitted). Thus, a cause of

action, once accrued, cannot be divested by subsequent legislation. Id.

Accordingly, we affirm the District Court’s finding that La. R.S. § 9:2800.17 is

unconstitutional as applied retroactively, because the plaintiff’s causes of action

accrued before effective date of the statute. We remand this matter for further

proceedings consistent with this opinion.

AFFIRMED AND REMANDED.




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