RICHARD REAL ESTATE PROPERTIES LLC v. CITY OF GRAND ISLE ET AL (2025)

The appellant appeals the trial court's ruling that granted summary judgment in favor of the appellees. We affirm for the following reasons.

PROCEDURAL HISTORY

The plaintiff/appellant, Richard's Real Estate Properties, LLC (“Richard's”) filed a petition against several defendants ¹ at the Twenty-Fourth Judicial District Court on August 26, 2022. The petition alleged that a building (“camp”) improperly constructed at 1954 Highway 1 in Grand Isle, within Jefferson Parish, collapsed during Hurricane Ida ² and fell into Richard's building, completely destroying it. Richard's asserted, in summary, that the neighboring building did not comply with required Grand Isle setbacks and building codes, that the design for the building was flawed because inadequately-sized pilings were used, and the sheer wall was not built to withstand hurricane force winds.

Neko Solutions, LLC and Cheramie Contractors, LLC did not file an answer to Richard's lawsuit. The City of Grand Isle was dismissed after the trial court granted its motion for summary judgment and exceptions of prescription and no cause of action. On July 3, 2024, Richard's filed a motion for partial summary judgment on the issue of strict liability. The appellees, Matthew Ory, Jonathan Boudreaux, and LIGA, filed their own motion for summary judgment on July 8, 2024. The trial court conducted a hearing on both motions for summary judgment on October 24, 2024. In its November 7, 2024 Order, the trial court denied Richard's motion for partial summary judgment and granted the appellees’ motion. The trial court denied Richard's motion for a new trial in a judgment dated January 27, 2025. The instant appeal followed.

ASSIGNMENT OF ERROR

Richard's argues on appeal that the trial court erred in denying its motion for summary judgment and motion for a new trial.

LAW AND ANALYSIS

A court shall grant a motion for summary judgment if the motion, memorandum, and supporting documents show that there is no genuine issue regarding material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The mover's burden on the motion is to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, if the mover does not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment. La. C.C.P. art. 966(D)(1). The adverse party then has to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. Appellate courts review summary judgments de novo, using the same criteria the trial court applies to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. The court must decide a motion for summary judgment referencing the substantive law that applies to the case. Muller v. Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

Richard's alleged in its petition that the appellees were negligent and strictly liable for construction defects in the 1954 Highway 1 building that were known, or should have been known. La. C.C. art. 2317.1 governs negligence claims against the owner or custodian of property, and provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

To impose liability for an unreasonably dangerous defect, a plaintiff must show that: (1) the thing was in the defendant's custody or control, (2) the thing had a vice or defect that presented an unreasonable risk of harm, (3) the defendant knew or should have known of the unreasonable risk of harm, and (4) the damage was caused by the defect. Vail v. Schiro Bros. Shoe Store, Inc., 16-47 (La. App. 5 Cir. 05/12/16), 193 So.3d 342, 347. If the plaintiff fails to prove any one of these elements, the claim fails. Dauzat v. Thompson Const. Co., Inc., 02-989 (La. App. 5 Cir. 01/28/03), 839 So.2d 319, 322.

Knowledge of a defect

The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant's garde. Thibodeaux v. Allstate Insurance Company, 19-458 (La. App. 5 Cir. 3/20/20), 293 So.3d 797, 805, writ denied, 20-515 (La. 6/22/20), 297 So.3d 762. Constructive knowledge can be found if the conditions that caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Id.

The record in this matter shows that the camp at 1954 Highway 1 was built in 2019 using plans stamped by a licensed structural engineer, was properly permitted for construction, and was ultimately issued a certificate of occupancy by the City of Grand Isle upon completion. Aside from issues related to the building's proximity to his property line, Henry Richard testified at his deposition that he did not personally notice any issues with the piles or foundation nor did he observe any defect in the design or construction of the camp before Hurricane Ida.

The appellees, Matthew Ory and Jonathan Boudreaux, purchased the camp after its completion and had no involvement in the design or building process. While there are “as is” clauses and redhibition waivers in the act of sale from Christopher John St. Martin and Sherry Cavitt St. Martin, there is no explicit disclosure or flagging of structural defects by any party at the time of transfer. After their purchase, Richard did not provide Ory and Boudreaux notice of any visible structural problem with their camp that he personally observed.

In his deposition testimony, Ory stated that during his use of the property from acquisition until Hurricane Ida, he was never aware of any issue with the structure or foundation of the camp, nor any deficiencies in the construction of the camp. Ory further stated that he did not observe any unusual movement of the concrete foundation, or any unusual bending, cracking, twisting, or movement of the supporting timber piles or floor framing system prior to Hurricane Ida. He also states that at no time before the hurricane did anyone report any problem, condition, vice, or defect with the camp, nor did any neighbor complain or report issues with location, piles, foundation, or any structural element. Ory affirmed that upon his pre-purchase visual inspection, he did not observe any issues with the foundation or piles, nor did he see any obvious defects visible to a layperson. He did acknowledge his awareness that the camp was tall and built close to the property line, and that he was aware of a dispute about the property line, but those issues related to legal setbacks, not observable structural defects.

Boudreaux testified in his deposition that he visually inspected the camp before purchase, did not observe any problems or damage with the piles or foundation, and did not see anything to suggest he needed another expert or engineer to review the property. He confirmed that he did not experience problems with the structure after taking ownership and before Hurricane Ida.

Richard's introduced reports into evidence by Charles Norman, GIS Engineering, and Keystone that identify purported design and construction defects, including: under-sized and insufficiently braced piles, scouring, insufficient setback, and excessive height. However, GIS and Keystone both conducted their evaluations after Hurricane Ida and base their findings on post-failure observations. In similar cases, this Court has held the identification of a building's potential defect in an expert report, written after the fact, is not sufficient to create a genuine issue of material fact of whether the building's owner had prior knowledge of the defect itself. See Robinson v. Otis Condo. Ass'n, Inc., 20-359 (La. App. 5 Cir. 2/3/21), 315 So.3d 356, 362, writ denied, 21-343 (La. 4/27/21), 314 So.3d 837. In this case, there is no indication in the reports that the defects were, or reasonably should have been, observable by the owners before Hurricane Ida.

Conclusion

Upon our de novo review of the parties’ pleadings and the evidence admitted, we find that the appellees established there is no evidence which showed they had actual or constructive notice of any alleged defect at 1954 Highway 1 before Hurricane Ida. The burden shifted to the appellant to show that the appellees knew or should have known of the alleged defects. We conclude, as the trial court did, that the appellant did not meet its burden. Therefore, we find that appellees were entitled to summary judgment as a matter of law. For these same reasons, we also find no error in the trial court's denial of the appellant's motion for a new trial.³

DECREE

We affirm for the foregoing reasons.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. TRAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 3, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

25-CA-253

CURTIS B. PURSELL CLERK OF COURT

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE NANCY A. MILLER (DISTRICT JUDGE)

MICHAEL L. HEATON (APPELLANT)

CHRISTOPHER R. TESKE (APPELLEE)

JIMMY A. CASTEX, JR. (APPELLEE)

H. MINOR PIPES, III (APPELLEE)

ALEXIS P. JOACHIM (APPELLEE)

JENNIFER S. MARTINEZ (APPELLEE)

MAILED

BRIAN T. CARMOUCHE (APPELLANT)

CAROLINE H. MARTIN (APPELLANT)

DONALD T. CARMOUCHE (APPELLANT)

JOHN H. CARMOUCHE (APPELLANT)

LAWRENCE G. GETTYS (APPELLANT)

ATTORNEYS AT LAW

17405 PERKINS ROAD

BATON ROUGE, LA 70810

JOHN B. ESNARD, III (APPELLEE)

JOHN W. MARTINEZ (APPELLEE)

ATTORNEYS AT LAW

650 POYDRAS STREET

SUITE 2415

NEW ORLEANS, LA 70130

FOOTNOTES

1.   The named defendants were the City of Grand Isle, Matthew Ory, Jonathan Boudreaux, Neko Solutions, LLC and Cheramie Contractors, LLC. Ory and Boudreaux's liability insurer was United Property and Casualty Insurance Company (“UPC”). When United became insolvent, the Louisiana Insurance Guaranty Association (“LIGA”) intervened as United's obligor.

2.   Hurricane Ida made landfall in Grand Isle on August 28, 2021, as a category four storm with sustained winds of 150 miles per hour.

3.   The denial of a motion for new trial is generally considered an interlocutory judgment and is not independently appealable. However, this Court has previously held that the denial of a motion for a new trial is reviewable on appeal as an assignment of error in the unrestricted appeal of the final judgment. Scanlan v. MBF of Metairie, LLC, 21-323 (La. App. 5 Cir. 3/23/22), 337 So.3d 562, 563.

JOHN J. MOLAISON, JR. JUDGE