STATE v. PORTER (2022)

Court of Appeal of Louisiana, Fourth Circuit.

STATE of Louisiana, Division of Administration, Office of Community Development-Disaster Recovery Unit v. Linda Ann PORTER a/k/a Linda Tapp Porter

NO. 2022-CA-0250

Decided: September 19, 2022

(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase)

Mary Catherine Cali, John Carroll Walsh, Caroline M. Tomeny, William J. Wilson, John C. Conine, Jr., Drew D. Lyons, SHOWS CALI & WALSH, LLP, 628 St. Louis Street, P.O. Drawer 4425, Baton Rouge, LA 70821, COUNSEL FOR PLAINTIFF/APPELLANT Christopher H. Szeto, THE LAW OFFICE OF CHRISTOPHER SZETO, 8131 Plum Street, Suite 1, New Orleans, LA 70118, COUNSEL FOR DEFENDANT/APPELLEE

On Application for Rehearing

Appellee, Linda Porter (hereinafter “Ms. Porter”), petitions this Court for a rehearing of our September 7, 2022 decision, which reversed the trial court's judgment granting Ms. Porter's exception of peremption. Ms. Porter contends that this Court erroneously found that La. R.S. 9:2772 is inapplicable because she is not a land surveyor. She maintains that this Court based its conclusion on a factual determination that was not made by the trial court. We grant rehearing solely to clarify our original opinion.

As stated in our original opinion, La. R.S. 9:2772 applies to any person performing land surveying services as defined by La. R.S. 37:682, which defines land surveyor as an individual qualified and licensed to practice land surveying. See La. R.S. 37:682(8). The fact that the basis of the trial court's ruling did not specifically center on whether Ms. Porter was a land surveyor is irrelevant to this court's de novo review, as this Court analyzed the ultimate ruling of the trial court. In reviewing the granting of an exception of peremption, a legal question is raised as it involves the interpretation of a statute. Thrasher Const. v. Gibbs Residential, L.L.C., 2015-0607, p. 6 (La.App. 4 Cir. 6/29/16), 197 So.3d 283, 288-89. Thus, the threshold inquiry for the application of La. R.S. 9:2772 is whether Ms. Porter was a land surveyor. La. R.S. 9:2772 is a specialized statute that specifically applies to land surveyors, not homeowners. Therefore, La. R.S. 9:2772 can only be interpreted to apply to land surveyors as the statute references La. R.S. 37:682 multiple times when discussing the definition of persons performing land surveying services. Before analyzing whether Ms. Porter meets the requirements of La. R.S. 9:2772, we must first determine whether the statute even applies to her. We find that it does not. As clarified herein, the original opinion of this Court is affirmed.

REHEARING GRANTED FOR THE LIMITED PURPOSE OF CLARIFICATION; APPELLATE JUDGMENT OF SEPTEMBER 7, 2022 MAINTAINED

Judge Tiffany Gautier Chase

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