Ursin et al. v. New Orleans Aviation Board
Cite as: 506 So.2d 947


Edward T. URSIN, et al.
NEW ORLEANS AVIATION BOARD and the City of New Orleans

No. 86-C-620

April 15, 1987


Donald A. Hoffman, Robert I. Siegel, Noel L. Delery, Carmouche, Gray & Hoffman, New Orleans, for defendants-relators, N.O. Aviation Bd. and the City of New Orleans.

James J. Donelon, Partee, Leefe, Waldrip, Donelon & Mott, Metairie, Ronald P. Nabonne, Jones, Nabonne & Wilkerson, New Orleans, for defendants-relators.

Henry L. Klein, New Orleans, for plaintiffs, Edward T. Ursin, et al.

Edmund W. Golden, Wiedemann & Fransen, New Orleans, Samuel E. Schudmak, III, Metairie, for plaintiffs.

Michael Fontham, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for Air Transport of America.


CHEHARDY, Chief Judge.

In this suit, residents and property owners of an area surrounding a municipal airport seek damages for nuisance and inverse condemnation. They claim excessive noise from aircraft using the airport has interfered with their property ownership rights and has produced various physical ills and psychological disturbances.

The matter first came before this Court on October 20, 1986, on writ application by the defendants. The district court had denied the defendants' motion to vacate an order that allowed the plaintiffs to add 6,500 additional plaintiffs; the district court had also refused to grant the defendants' motion for partial summary judgment limiting the plaintiffs' cause of action to inverse condemnation.

We denied the application on October 28, 1986, finding no abuse of the trial court's discretion. On January 9, 1987, the Supreme Court granted writs and remanded the matter "for briefing, argument and opinion," 499 So.2d 79. After filing voluminous additional briefs and exhibits, the parties presented oral argument to us on March 11, 1987.

The issues may be divided into two categories: First, who are the proper parties-plaintiff in this suit? Second, what causes of action may these plaintiffs assert?


This suit was originally filed as a class action in August 1980 by six plaintiffs who own property in Jefferson Parish near New Orleans International Airport. The defendants are the airport's managing agency (the New Orleans Aviation Board) and its owner (the City of New Orleans). (The City of Kenner and the Parish of Jefferson also were made defendants, but were dismissed early in the suit.) The plaintiffs sought damages for inverse condemnation of their property and for nuisance resulting from noise caused by aircraft using the airport runways.

The defendants filed a peremptory exception of no cause of action as to the class action. On March 20, 1981, judgment was rendered dismissing the class action but reserving to plaintiffs the right to maintain individual actions. The plaintiffs did not appeal the dismissal of the class action.

(After rendition of the judgment dismissing the class action, the case was transferred to another district judge. The change may account for the discrepant effect of the judgment now at issue before us.)

The original petition was followed by four supplemental and amending petitions, in which the plaintiffs gradually added 37 more plaintiffs (for a total of 43 plaintiffs) and also elaborated their allegations regarding damages.

In early November 1983, plaintiffs filed a motion to notify indispensable parties of the pendency of the suit. On November 22, 1983 the district court rendered judgment granting that motion. The court decreed that all property owners and residents of a target area around the airport known as the "Ldn 65 Noise Contour" are indispensable parties and prescribed a procedure for notifying them of the suit. The defendants did not apply for a new trial on the ruling. Further, they sought neither supervisory nor appellate review at the time.

The procedure authorized by the district court for notification of "indispensable parties" employed newspaper advertisements and mass mailings to advise landowners and residents in the target area they could join in the suit by sending a postcard to plaintiffs' counsel.

In 1984, the defendants filed third-party complaints against certain employees of the Federal Aviation Administration. The third-party defendants removed the state proceeding to the United States District Court for the Eastern District of Louisiana, where it was consolidated with a similar suit between these parties that had been filed in federal court in 1982.

Most of the issues being litigated here were brought up in the federal court. Ultimately, however, the federal judge ruled that state court is the proper forum to determine the parties' rights and liabilities. In February 1985, the federal court issued a stay of the federal proceeding and remanded the state case to the 24th Judicial District Court.

In December 1985, defendants filed a motion for partial summary judgment, in which they argued that plaintiffs' claims for tort damages are preempted by federal law and that plaintiffs' exclusive remedy lies in inverse condemnation.

In March 1986, plaintiffs amended their petition a fifth time, to add approximately 6,500 "postcard plaintiffs" who had responded to the notification approved by the state district court in 1983. That amending petition listed the names and addresses of the postcard plaintiffs and incorporated by reference the allegations of the original petition and the four preceding supplemental and amending petitions, but it did not make an individual statement of material facts for each new plaintiff.

In May 1986, defendants filed a motion to vacate the order that allowed the plaintiffs to add the postcard plaintiffs; the motion was styled, alternatively, an exception of improper joinder. Included in the same pleading was an exception of nonconformity of the petition to the requirements of LSA-C.C.P. art. 891 (in which the defendants complained that the plaintiffs had failed to include individual statements of material facts regarding the postcard plaintiffs) and an exception of lack of procedural capacity.

On July 10, 1986, the district court denied the motion to vacate/exception of improper joinder, denied the other exceptions, and denied the motion for partial summary judgment. Thereafter the defendants filed this application for writs, seeking reversal of that judgment.


Defendants' thesis that the postcard plaintiffs were improperly added includes several arguments: First, that the procedure employed to join the postcard plaintiffs was improper; second, that the postcard plaintiffs should be dismissed for improper cumulation of parties; third, that the amending and supplemental petition by which the 6,500 postcard plaintiffs were added fails to set forth the material facts upon which the cause of action is based.

We find, however, that the parties' tardiness in challenging certain actions of the district court precludes our review of the issue of proper parties- plaintiff.

On one hand, because the plaintiffs did not appeal the 1981 dismissal of the class action, that judgment became final, barring further consideration of the class action aspect.

On the other hand, the 1983 judgment that declared owners and residents of property in the target area to be indispensable parties had the practical effect of circumventing the prior ruling denying a class action. The persons declared to be indispensable parties are the same persons the plaintiffs had designated as members of the proposed class. The defendants, however, failed to seek timely review of the 1983 judgment; they failed even to move for a new trial on the issue of indispensable parties.

In our view, to allow the defendants to overturn that judgment now would cause manifest injustice. We acknowledge that the 1983 judgment was interlocutory; interlocutory judgments usually are not appealable and can be reviewed only by application for supervisory writs. Under LSA-C.C.P. art. 2083, however, an appeal may be taken from an interlocutory judgment which may cause irreparable injury. Considering the import and potential impact of the 1983 judgment, not only on the present plaintiffs and the potential plaintiffs, but also on the defendants, the defendants should have sought review of the judgment, by writ or by appeal, when it was rendered.

Our view is supported by the reasoning in two cases dealing with class actions. In State ex rel. Guste v. General Motors Corp., 354 So.2d 770 (La.App. 4 Cir.1978), affirmed, 370 So.2d 477, the Louisiana attorney general filed a class action suit over defective automobiles. In explaining why the Fourth Circuit decided to hear the appeal of the interlocutory judgment allowing the class action, the court stated, 354 So.2d at 773:

"If a definitive and final judgment is not rendered, initially, on the class action question, irreparable injury may result not only to General Motors but also to the consumer. If it should be determined at a later date (after the matter has been heard on the merits) that no entitlement to a class action exists, the delay resulting to the consumer to file a suit, individually, would make a fair assessment of damages difficult because of the resulting depreciation of the vehicle. Furthermore, from defendant's standpoint, any delays resulting in depreciation of the automobiles could conceivably result in added immeasurable damages to the defendant causing confusion in the proper evaluation of damages. "Though it is generally true that costs entailed in the litigation of a matter have been held not to constitute irreparable damages; nevertheless, in the instant case, the maintenance of plaintiffs' claim as a class action involves the cost of an overwhelming number of notices and court days to be set aside for trial of the matter. If, at a later time, after trial on the merits and review, it is determined that the trial judge erred in permitting the matter to be tried as a class action, immeasurable expense and innumerable wasted court days will have resulted. Furthermore, litigants in other matters will have been needlessly delayed. * * * " [Footnote omitted]
Similarly, in Millet v. Rollins Environmental Serv., Etc., 421 So.2d 935 (La.App. 1 Cir.1982), the court allowed appeal of a judgment denying the defendants' exception of improper use of a class action. The court reasoned that to force the parties to wait for appeal after determination of the merits could cause irreparable injury due to difficulty in assessing damages, plus immeasurable expense and innumerable wasted court days, if the class action were later disallowed.

The defendants have been unable to explain satisfactorily why they waited two-and-a-half years to challenge the ruling on indispensable parties. They contend their motion to vacate was timely because it was directed to the district judge's order allowing the filing of the amending petition that added the postcard plaintiffs. That argument is misleading; it is plain that defendants are attacking the substance of the 1983 judgment. In light of the district judge's prior ruling in that 1983 judgment, he could not have refused to allow the plaintiffs to amend their suit by adding the parties who were declared indispensable. See Updegraff v. Parish of St. Bernard, 433 So.2d 863 (La.App. 4 Cir.1983); LSA-C.C.P. art. 646.

The merit defendants' arguments might have had three years ago is outweighed now by the effects of the 1983 judgment. The notification procedures commanded by the judgment were undertaken, at considerable expense to the original plaintiffs, and thousands of additional persons have become involved in the suit as a result. We construe defendants' failure to challenge the 1983 judgment as an acquiescence that precludes reversal now.

Our conclusion is supported by analogy to a case defendants themselves cite. In Pan Am. World Airways, Inc. v. U.S. Dist. Ct., C.D. Cal., 523 F.2d 1073 (9th Cir.1975), the district court's order commanding notification of potential plaintiffs was reviewed on writ of mandamus. The court of appeals stated that immediate review was required because erroneous notice to potential plaintiffs could not be remedied on appeal after final judgment and the petitioners could not be relieved of the burden of actions filed in response to such notice.

Defendants express concern that they will be exposed to additional claims. They fear that potential plaintiffs who choose not to join in the suit may later be allowed to file separate suits or, alternatively, that those potential plaintiffs will not be barred from asserting their claims by their failure to join in this suit. Their apprehensions are unwarranted. Because the residents and property owners of the target area have been declared indispensable parties, the action cannot proceed without them. As counsel for the present plaintiffs admit, any persons who do not join as plaintiffs will have to be joined as defendants so the case can be adjudicated. See LSA C.C.P. arts. 641, 644.

Defendants' next contention, that the postcard plaintiffs should be dismissed for improper cumulation of parties, is simply another attack on the 1983 judgment, from a different angle. We point out that the only party who may raise the exception of improper joinder of parties is the party who has been improperly joined; the remedy is not available to a party who is properly joined. Krawfish Kitchen Restaurant, Inc. v. Ardoin, 396 So.2d 990 (La.App. 3 Cir.1981).

The defendants' third argument is that the amending petition failed to comply with LSA-C.C.P. art. 891; they claim it does not set forth the material facts upon which the postcard plaintiffs' cause of action is based. Specifically, defendants assert that each plaintiff must plead not only his name and domicile, but also must describe the property allegedly taken and his interest in the property, state the date he acquired the property interest and the date of the alleged taking, and state how the defendants allegedly interfered with the use of the property to such an extent as to substantially deprive him of its use and lower its market value.

The petition by which the postcard plaintiffs were added was actually the fifth supplemental and amending petition in this suit. It realleged and incorporated by reference the causes of action listed in the previous petitions.

The original petition had alleged that the defendants acted in concert with each other "to enact or cause to be enacted" laws that restrict plaintiffs' utilization and enjoyment of their property, in order to facilitate expansion of New Orleans International Airport, to the detriment of plaintiffs and the enrichment of defendants. Specifically, the plaintiffs alleged, the defendants have conspired over a number of years to expand the runways, increase the volume of air traffic, increase the size of aircraft utilizing the airport, reduce the height of landing and takeoff patterns, and diminish noise abatement procedures and devices.

They alleged further that defendants' actions resulted in plaintiffs' inability to use the outdoors due to noise and dust, inability to carry on a normal conversation due to noise, inability to enjoy television and radio due to interference from low-flying aircraft, inability to open windows due to noise and dust, and inability to sleep normally. In addition, plaintiffs alleged they suffered mental anguish due to inverse condemnation and the inability to carry on normal daily activities, and physical injuries consisting of loss of and diminution in hearing ability.

The original petition was followed by three supplemental and amending petitions that added more plaintiffs, then by a fourth supplemental and amending petition that elaborated on plaintiffs' injuries as follows: mental anguish and emotional distress; physical pain and suffering; loss of and diminution in hearing ability; aggravation, inconvenience, anger, frustration, and psychiatric and psychological neuroses; shortened life expectancy; increased likelihood of death from heart attack, stroke, suicide and violent crime; and increased risk of death from stress-related illnesses.

The fifth supplemental and amending petition, by which the postcard plaintiffs were added, restated the plaintiffs' claims as follows: inverse condemnation; servitude for use of "superadjacent air space"; breach of limitations on use, depriving plaintiffs of "the liberty of enjoying their own property," violating the restrictions under LSA-C.C. art. 667; nuisance, by maintaining "inherently unacceptable noise levels and pollutant emissions"; incompatible land use; tortious interference with property rights; and "any other causes of action under which plaintiffs may be entitled to recover."

We conclude these allegations, although many are redundant, sufficiently comply with the requirements of C.C.P. art. 891 in their statements of material facts. Defendants may obtain through the discovery process any additional information they require to present their defenses.


The second major issue concerns the causes of actions the plaintiffs are entitled to assert. A property owner's right to be justly compensated if his property is taken or damaged for public purposes is constitutionally protected. La. Const. Art. 1, Secs. 2, 14; U.S. Const., Amends. 5, 14.

"Since a taking or damaging of property may in fact occur without expropriation proceedings by a public body through oversight or lack of foresight, there must be some proceeding whereby an owner may seek redress when his property is damaged or taken without the proper exercise or eminent domain. Such an action is often referred to as 'inverse condemnation' * * *." Reymond v. State, Department of Highways, 255 La. 425, 231 So.2d 375, 383 (La.1970).

Continued in Part Two