MISITA v. MAUMOULIDES LLC (2022)

Writ application granted. See per curiam.

Writ granted. At the heart of this case is a statement former St. Tammany Parish President Kevin Davis allegedly made to Anthony Misita in 2008 or 2009 that, within thirty days, the St. Tammany Parish Government (“STPG”) would return to his property to resolve its flooding problems by extending a drainage lateral/canal. The plaintiffs allege that they detrimentally relied on Mr. Davis’ statement.

The main issue presented by this case is whether Mr. Davis (and the STPG, on a theory of vicarious liability) is entitled to a dismissal of the claims asserted against him under the discretionary immunity doctrine. At the outset, we note that the court of appeal erred in finding that Mr. Davis and the STPG did not raise the merits of the discretionary immunity defense in their summary judgment motion.¹ Their motion sought summary judgment on several bases, including that the STPG “and its employees are immune from suit for their discretionary decisions under the unambiguous, blackletter law of La. R.S. 9:2798.1, La. R.S. 40:1730(C), La. R.S. 33:101.1, and La. R.S. 33:4771 et seq.”

The doctrine of discretionary immunity is set forth in La. R.S. 9:2798.1 B, which provides that “[l]iability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.” We explained the application of the discretionary act doctine in Cormier v. T.H.E. Ins. Co., 98-2208, pp. 6-7 (La. 9/8/99), 745 So. 2d 1, 6-7:

․ the court must first consider whether the government employee had an element of choice and his course of action was not specifically prescribed by the statute, regulation, or policy. Conduct cannot be discretionary unless it involves an element of judgment or choice. Thus, discretionary immunity will not apply when a specific course of action is prescribed as the employee has no rightful option but to adhere to the directive. On the other hand, when discretion is involved, the court must then determine whether that discretion is the kind shielded by the exception: one grounded in social, economic, or political activity․ If it is, then the doctrine applies and the employee or agency is insulated from liability; if it is not, the employee or agency is liable for any negligence.

(Citations omitted).

Plaintiffs have cited no statute, ordinance, rule, regulation or other authority by which the SPTG was required to extend the drainage lateral and thus, no specific course of action was prescribed in this case. Even assuming Mr. Davis advised the plaintiffs that he would have the STPG extend the lateral within 30 days, given the lack of any requirement that it do so, this would amount to a discretionary act and not an operational decision, for which discretionary immunity would not apply.² The trial court, thus, properly granted summary judgment dismissing all claims against Mr. Davis, including the detrimental reliance claims. Because the STPG would only be vicariously liable for the claims arising out of Mr. Davis’ statement, the STPG is also entitled to a dismissal of those claims, including the detrimental reliance claims, on the basis of discretionary immunity. Based on this finding, we need not address the remaining issues raised in this writ application.

Accordingly, it is ordered that the judgment of the trial court be reinstated. The motion for summary judgment filed by Mr. Davis and the STPG is granted, dismissing all claims related to Mr. Davis’ alleged statement to Mr. Misita, including the claims for detrimental reliance.

FOOTNOTES

1.   To the contrary, the court of appeal found that this issue was raised only in the context of whether it was encompassed in a 2018 judgment, that sustained an exception of prescription, dismissing all claims arising more than a year before suit was filed.

2.   “The immunity statute does not protect operational governmental decisions, but only confers immunity for discretionary decisions ․” Aucoin v. Larpenter, 2020-0792, p. 14 (La. App. 1 Cir. 4/16/21), 324 So. 3d 626, 638, writ denied, 2021-00688 (La. 9/27/21), 324 So. 3d 87.

Hughes, J., dissents. Griffin, J., dissents.