C&W Developers, L.L.C. and Venture Wireless, LLC v. Bossier Parish, Louisiana
CourtLouisiana Court of Appeal
Date FiledSeptember 30, 2026
Docket57,074-CA
JudgePitman
StatusPublished
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Full Opinion
Judgment rendered September 30, 2026.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 57,074-CA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
C&W DEVELOPERS, L.L.C. Plaintiffs-Appellants
AND VENTURE WIRELESS,
LLC
versus
BOSSIER PARISH, LOUISIANA Defendant-Appellee
*****
Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 150,215
Honorable Charles A. Smith, Judge
*****
AYRES, SHELTON, WILLIAMS, Counsel for Appellants
BENSON & PAINE, LLC
By: Alexandra E. Vozzella
Lee H. Ayres
Kevin W. Hammond
DEUTSCH KERRIGAN, LLP Counsel for Appellee
By: Raymond C. Lewis
K. Chance Carter
COOK, YANCEY, KING & GALLOWAY
By: Robert Kennedy, Jr.
*****
Before PITMAN, STEPHENS, and HUNTER, JJ.
HUNTER, J., dissenting with written reasons.
PITMAN, C. J.
Plaintiffs-Appellants C&W Developers, L.L.C. (“C&W”) and Venture
Wireless, LLC (“Venture”) appeal the trial court’s judgment in favor of
Defendant-Appellee Bossier Parish, Louisiana (the “Parish”). The Parish
appeals the trial court’s denial of its exception of prescription. For the
following reasons, we affirm the judgments of the trial court.
FACTS
On June 7, 2016, Plaintiffs filed a petition against the Parish. They
purchased Unit 2 and Unit 4 (collectively, the “Properties”) in the River
Bluff Subdivision, located along the Red River in Bossier Parish, with the
intent to develop them for residential construction. They obtained a
development permit from the Parish, which required construction to be one
foot above the established base flood elevation (“BFE”). On June 7, 2015,
the Red River flooded above the BFE. Plaintiffs alleged that the Properties
were inundated by floodwaters, and their development activities were
damaged or destroyed. They argued that the Parish knew or should have
known that the BFE was inadequate to provide protection from flooding.
They stated that as a result of their reliance on the BFE provided by the
Parish, the Properties were unfit for residential development and virtually
worthless. They also argued that the Parish’s moratorium on building
permits and raising of the BFE constituted illegal takings of their property.
On September 22, 2016, the Parish filed an answer and raised
affirmative defenses. On October 3, 2016, it filed an amended answer and
raised additional affirmative defenses, including discretionary immunity.
On June 9, 2023, Plaintiffs filed an amended petition. They argued
that they developed the Properties based on the Parish’s requirements and
obtained approval at each step in the process. They stated that by May 2015,
the only requirement remaining before they could begin selling lots was for
the Parish to accept Unit 2’s streets and drainage into the Parish road system
(the “System”). They alleged that in the June 2015 flood, the Properties did
not sustain any appreciable or permanent damage. They stated that at a June
17, 2015 meeting, the Bossier Parish Police Jury (the “Police Jury”) placed a
90-day moratorium on all new construction for three subdivisions on the
river side of the levee, which included the Properties, and twice extended
this moratorium. They stated that at its July 1, 2015 meeting, the Police Jury
tabled their request to accept Unit 2’s streets and drainage into the System;
and at subsequent meetings, it took no action on the acceptance. They stated
that on September 22, 2015, the Bossier Parish Tax Assessor devalued all
property and non-flooded homes in the River Bluff Subdivision by
50 percent and devalued all flooded homes in the Subdivision by 75 percent.
They stated that at a March 16, 2016 meeting, the Police Jury adopted a new
advisory BFE (the “ABFE”), which raised the previous BFE over five feet.
Plaintiffs stated that the Police Jury never voted to accept or reject Unit 2’s
streets and drainage into the System. They contended that as they built the
streets and drainage to the Parish’s specifications, the Police Jury was
required by ordinance to accept them into the System. They argued that the
Police Jury arbitrarily and capriciously failed to accept the streets and
drainage into the System, placed a moratorium on building permits,
devalued the Properties and adopted the ABFE. They contended that the
Parish’s actions prevented them from developing and selling lots and
rendered their investment almost worthless. They argued that the Parish is
liable for all damages caused by their arbitrary and capricious actions,
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including all costs and expenses incurred by Plaintiffs to develop the
Properties to the Parish’s specifications and requirements, the total amount
of the diminished value of the Properties and all other damages or relief
deemed proper. In the alternative, Plaintiffs argued that the Parish’s actions
constituted illegal takings of their property pursuant to La. Const. art. I, § 4,
and entitled them to just compensation.
On September 14, 2023, the Parish filed an answer to the amended
petition and raised affirmative defenses.
On August 5, 2024, the parties filed a joint motion for separate trials
on the issues of liability and damages. The trial court signed an order for
separate trials.
On March 14, 2025, Plaintiffs filed a second amended petition to
identify the claims they would continue to pursue and to exclude any
remaining claims. They argued that the following actions by the Police Jury
were arbitrary and capricious: the failure to accept Unit 2’s streets and
drainage into the System, the moratorium on the issuance of building
permits, the devaluation of the Properties and the adoption of the ABFE.
Plaintiffs contended that these actions prevented them from selling lots on
the Properties, diminished the value of the Properties and rendered their
investment in and development of the Properties virtually worthless.
On April 25, 2025, the Parish filed an answer and raised affirmative
defenses.
A bench trial on the issue of liability was held on September 4 and 5,
2025. In lieu of testimony, the parties stipulated that Mike Ervin was a
subdivision inspector in Bossier Parish; that prior to the 2015 flood, he
personally inspected the streets and drainage of Unit 2; that he confirmed
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that the streets and drainage satisfied all of the construction requirements
and specifications of the Parish; and that he approved of same.
Henry Warren Cantrell, Jr. testified that he is a land developer and has
developed three subdivisions in the Parish. He, Jeff Wyatt and their fathers
founded C&W, which purchased Unit 4 in April 2010 and continues to own
it. He and Mr. Wyatt also founded Venture, which purchased Unit 2 in
November 2012 and continues to own it. He explained that the River Bluff
Subdivision has four units and that Units 1 and 3 were already developed
when they purchased Units 2 and 4. He stated that C&W did everything the
Parish asked when designing, constructing and developing Unit 4 and that
Venture did everything the Parish asked when designing, constructing and
developing Unit 2. Mr. Cantrell testified that Unit 4’s streets and drainage
were built in accordance with the Parish’s requirements and that it was his
understanding that the Parish accepted Unit 4’s streets and drainage in the
System. He testified about the development of Unit 2, which included
dredging the Red River to fill a hole with hydraulic fill, attending meetings
to learn of development requirements and obtaining approvals from
governmental agencies. He detailed the materials used to construct Unit 2’s
streets and drainage and noted that they used the more expensive materials
for appearances and longevity. He stated that the streets were built at the
BFE, and the lots were built higher than that level for drainage purposes. He
stated that prior to the June 2015 flood, Unit 2’s streets and drainage were
substantially complete and had been inspected by the Parish. He testified
that Venture has not sold any lots in Unit 2 because the Police Jury has not
accepted the streets and drainage into the System. He stated that this has
also affected the development of Unit 4 because they did not receive the
4
income they expected from Unit 2 to use to develop Unit 4. Mr. Cantrell
testified that on June 15, 2015, the Police Jury placed a moratorium on new
building permits on the river side of the levee while waiting for guidance
from the Federal Emergency Management Agency (“FEMA”). He stated
that despite the moratorium, the Parish allowed houses in Unit 1 to be
repaired, completed and rebuilt. He stated that after the Police Jury lifted the
moratorium and adopted the ABFE, it still refused to vote on the streets and
drainage because it thought the streets were damaged and needed to be
replaced or repaired. He stated that no repairs have been made and
explained that, as of the day before trial, there were no defects other than
they are ten-year-old streets.
On cross-examination, Mr. Cantrell testified that Venture did not
agree to pay 25 percent of the costs to repair the streets because there was no
proof that they had been damaged. He stated that the acceptance of the
roads was removed from the Police Jury’s agenda because Venture refused
to contribute any funds to the repair of the roads. He clarified that the Police
Jury’s moratorium applied to all new construction and that C&W and
Venture were not singled out.
Jeff Wyatt testified that he is a realtor and a member of C&W and
Venture. He stated that they planned to use profits from developing Unit 2
to develop Unit 4. He noted that lots in Unit 1 sold quickly, so he thought
the same would happen with Unit 2 as they both had lots on the river and
interior lots. Following the 2015 flood, he researched houses that might be
marketable at a higher BFE. He stated that he went to Unit 2 several days
before trial and observed that the streets looked “perfect” and ready for use.
He explained that Venture did not pay to have the streets repaired because
5
there were no problems with them. On cross-examination, he agreed that it
was reasonable for the Police Jury to enact a moratorium following the
flood, but he stated that it should have ended as quickly as possible so they
could move forward.
Joe E. Ford, Jr. testified that from January 2003 until January 2022, he
served as Parish engineer, and from his appointment in January 2022 until
his retirement in 2025, he served as Parish administrator. His duties as
Parish engineer included issuing building permits, reviewing subdivision
plans and plots, attending Police Jury meetings, making recommendations to
the Police Jury and serving as the floodplain manager. He testified that he
ensured the Properties complied with Parish ordinances during their
approval processes. He stated that on November 5, 2010, he notified
C&W’s engineer that Unit 4’s plans met current regulations with the
exception of a drainage easement, which C&W subsequently added. He
noted that C&W also constructed an emergency entrance and exit in Unit 4
as required by the Police Jury. He signed the plat for Unit 4 on June 30,
2014, which signified the Parish’s approval. He testified that due to an
error, the Police Jury did not formally accept Unit 4’s streets and drainage
into the System. He stated that on March 5, 2014, the Police Jury considered
the approval of the Unit 2 plat and advised that no lots could be sold in any
subdivision until the Police Jury approved the streets and drainage. He
stated that on April 16, 2014, the Police Jury approved the Unit 2 plat
subject to two conditions, i.e., the completion of emergency access and the
inclusion of 15-foot levee setbacks. Mr. Ford testified that both conditions,
as well as requested changes to the outfall structure, were satisfied. In a
February 4, 2015 letter, Mr. Ford advised Venture’s engineer that the Parish
6
reviewed the plans for Unit 2; the plans met the subdivision regulations; the
Parish required a three percent inspection fee prior to construction; the
Parish required a two-year maintenance bond before the streets were
accepted into the System; and he needed to coordinate an inspection with the
subdivision inspector. Mr. Ford testified that he signed the Unit 2 plat on
February 4, 2015, which signified the Police Jury’s approval. He stated that
the Parish received the maintenance bond and the inspection fee and that the
streets passed the Parish’s inspection prior to the June 2015 flood. He noted
that the only remaining requirement before Venture could begin selling lots
in Unit 2 was for the Police Jury to accept the streets and drainage into the
System. Mr. Ford testified that the Police Jury did not vote to accept
Unit 2’s streets following the 2015 flood because the streets were damaged,
sand was covering them and pipes were sticking out of the ground. He
stated that the Parish did not engage in any testing to determine if the streets
in Unit 2 were actually damaged.
Larry Bartlett Little testified that in 2023, he was interested in
purchasing Unit 2 for a homesite and development. While determining
whether to purchase the property, he met with Mr. Ford, who advised him
that the site, including the roads, would have to be raised above the ABFE.
He stated that he did not purchase Unit 2 because it did not “work”
financially. On cross-examination, he clarified that if he were to purchase
Unit 2 solely to build his own house, the roads could remain at their current
height as private streets, but they would have to be raised if he wanted to sell
lots. When the Parish asked if the streets could remain at the current
elevation if he repaired them rather than replaced them, he said that was not
his understanding from his meeting with Mr. Ford.
7
Travis Ryan Estess, a civil engineer and land surveyor, testified that
he was the designer and project manager of Unit 2. He detailed its
development and stated that Venture received every approval and addressed
all the concerns of the Police Jury and Mr. Ford. He noted that Venture
followed the recommendations of geotechnical engineers when constructing
Unit 2’s streets and detailed the materials used to build them. He stated that
the streets were built in accordance with the plans approved by Mr. Ford and
that they passed the Parish’s inspection. He identified the certificate of
substantial completion dated May 12, 2015, and testified that prior to the
2015 flood, nothing remained unfinished except the vote to accept the streets
and drainage into the System. He testified that he went to Unit 2 two days
before trial and observed a general lack of maintenance of the streets but
described their integrity as “holding up fine.” He noted that the flood
occurred ten years prior to trial, that he was not aware of any repairs in that
time and that he had not seen any of the roads caved in, buckling or broken.
On cross-examination, Mr. Estess testified that Venture never
performed testing to determine if the streets were damaged by the
2015 flood. He did not recall if the roads had been cleared of sand when he
attended the July 1, 2015 Police Jury meeting and asked it to accept the
roads into the System. He was aware that FEMA agreed to pay 75 percent
of the cost to repair the roads in Unit 2. He stated that Venture intended to
repair the outfall pipes and sweep the streets but did not do so following the
moratorium put in place by the Police Jury.
Plaintiffs rested their case, and the Parish presented its witnesses.
Mr. Ford testified about the Parish’s flood damage prevention ordinance,
which is based on FEMA regulations. He stated that the purpose of the
8
ordinance is to protect human life and minimize property damage. He
explained that the Army Corps of Engineers (the “Corps”) established the
BFE for the River Bluff Subdivision in 2004. He stated that when he
approved the plans for the Properties, he was under the belief that this BFE
was accurate but learned during the 2015 flood that it was not. Mr. Ford
testified that when the Parish accepts roads into the System, it does not
become completely liable for them; rather, the contractor provides a
two-year maintenance bond. He explained that prior to the end of the two
years, the Parish inspects the streets for defects and requests that the
contractor make any necessary changes or repairs. He noted the importance
of the inspection because it is costly to repair streets that were not
constructed properly or were damaged before acceptance. He testified that
the Police Jury never accepted Unit 4’s streets and drainage into the System
because C&W did not provide a certificate of substantial completion, a valid
no-lien certificate or a maintenance bond. He stated that the Parish has not
been maintaining Unit 4’s roads but mistakenly repaired a cul-de-sac
following the 2015 flood. He testified that at the July 1, 2015 Police Jury
meeting, he noted that three feet of water covered the River Bluff
Subdivision during the flood and requested that the Police Jury table the
acceptance of Unit 2’s streets and drainage to allow time for the water to
recede and to determine if there were damages. He stated that at the April 6,
2016 meeting, he informed the Police Jury that FEMA agreed to pay
75 percent of the total cost of $64,845 to repair Unit 2’s roads. He stated
that Venture declined to pay the remaining 25 percent and explained that the
Parish did not pay this portion because it does not spend public funds on
anything private. Mr. Ford discussed the Legacy Subdivision where he
9
discovered damage to the streets after they were substantially completed but
before they were accepted. He stated that in that subdivision the Parish
required the developers to repair the damages before the Police Jury
accepted the roads and drainage into the System. He testified that after the
2015 flood, he asked the Police Jury to place the moratorium on new
building permits until more information was learned about the river. He
noted that during the moratorium, those who already had building permits
could continue building and those whose houses were damaged could repair
them. He met with the Parish, the City of Bossier, Caddo Parish, the City of
Shreveport, FEMA, the Corps and the National Weather Service to decide
how to move forward. He stated that the Parish worked with the City of
Bossier, the City of Shreveport and Caddo Parish to draft an ordinance, that
FEMA approved the ordinance and that all the agencies adopted the
ordinance with a new ABFE of the high-water mark plus 18 inches on the
river side of the levee and 12 inches on the protected side of the levee. He
stated that once the Police Jury adopted the ordinance, it lifted the building
moratorium. Mr. Ford stated that he drove through Unit 2 the day before his
testimony and observed that the roads were damaged, cracked and deformed.
Toby Fruge was qualified as an expert professional engineer
specializing in hydrology and hydraulics, with a focus on storm water and
floodplain management. He testified that he is the president of a consulting
engineering firm; that the Police Jury had been a client for 18 years; and that
most of its work was floodplain-related, including reviewing new
subdivisions. He noted that he was not involved in the Parish’s adoption of
the moratorium, the ABFE or the new floodplain development ordinance and
testified that he was first exposed to these matters when consulting on this
10
lawsuit. He stated that it was wise for the Police Jury to put in place the
moratorium on new building permits to protect residents from building in an
area that recently experienced three feet of water. He noted that the length
of the moratorium was not out of the ordinary because it takes time for
government agencies to coordinate their efforts and collect data. He opined
that the Police Jury’s decision to adopt the ABFE was not unlawful, arbitrary
or capricious but rather was consistent with FEMA guidance and reflective
of responsible and reasonable floodplain management. He disagreed with
Plaintiffs’ claim that the ABFE rendered Units 2 and 4 almost unbuildable
and detailed building techniques that could be used in flood-prone areas. He
noted that BFEs change frequently, which is the nature of living in a
floodplain. He contended that the Parish acted prudently by observing high-
water marks from the 2015 flood, which provided a more accurate and site-
specific representation of flood risks than older, less precise theoretical
models. He opined that using the outdated BFE would have been
irresponsible, particularly on the unprotected side of a major river. He stated
that the 2015 flood produced credible evidence of flood behavior directly
adjacent to the River Bluff Subdivision and that ignoring such evidence and
allowing construction with the original BFE would have been poor
floodplain management and a significant increase to public safety risk. He
contended that the Parish’s adoption of the ABFE and the 18-inch freeboard
reflects proactive and sound floodplain management to better safeguard life
and property while promoting long-term resiliency by reducing flood risk to
the River Bluff Subdivision. On cross-examination, Mr. Fruge stated that he
had not formed an opinion as to whether the Parish should have accepted the
11
streets and drainage of Unit 2 into the System. He stated that water standing
or running on a road can greatly deteriorate it.
The parties stipulated that if Bobby Edmiston, the Bossier Parish Tax
Assessor, were called to testify he would state that he did not devalue any
properties in Unit 2 or Unit 4 but did devalue properties in Unit 1 and Unit 3
as a result of the 2015 flood.
Richard Brontoli, a civil engineer and former executive director of the
Red River Valley Association, testified that he chaired the Flood Technical
Committee following the 2015 flood. This committee included the Parish,
Caddo Parish, the City of Bossier, the City of Shreveport, the Port and the
Red River Waterway Commission. He stated that its purpose was to
determine “what happened” with the 2015 flood. He detailed the process of
determining the ABFE.
The Parish rested, and Plaintiffs recalled Mr. Cantrell. He testified
that Mr. Ford told him that Venture would have to replace all the roads in
Unit 2, not just the portions FEMA approved for reimbursement if repairs
were made. He also stated that he and Mr. Ford discussed the 25-75 percent
split of costs with FEMA but did not discuss the actual cost of repairs.
On September 9, 2025, the Parish filed an exception of prescription.
It argued that Plaintiffs’ claim that the Police Jury was arbitrary and
capricious for refusing to accept the streets and drainage into the System
prescribed on its face because they did not assert it in their original petition.
On December 5, 2025, the trial court presented its ruling in open
court. It denied the Parish’s exception of prescription. It explained that
Louisiana is a fact-pleading state and that Plaintiffs alleged the same facts in
their original petition as they did in their amended petitions. The court then
12
addressed Plaintiffs’ claims. Regarding C&W, the trial court found that the
Police Jury accepted Unit 4’s streets into the System. Regarding Venture,
the trial court stated that the Parish did not accept Unit 2’s streets and
drainage into the System. It found that the Parish was not arbitrary and
capricious, was correct in not accepting Unit 2’s streets and drainage and
was not required to accept Unit 2’s streets and drainage into the System.
On December 29, 2025, the trial court filed a final judgment. It
denied the Parish’s peremptory exception of prescription. It rendered
judgment in favor of the Parish and against C&W, dismissing with prejudice
C&W’s claims against the Parish. It rendered judgment in favor of the
Parish and against Venture, dismissing with prejudice Venture’s claims
against the Parish. Accordingly, the trial court determined that the issue of
damages need not be addressed in further proceedings.
Plaintiffs appeal, and the Parish filed an answer to the appeal.
DISCUSSION
Standard of Review
In their first assignment of error, Plaintiffs argue that the trial court
erred in failing to decide the primary issue presented at trial, i.e., whether the
Parish had a duty to accept Unit 2’s streets and drainage into the System.
They contend that as the trial court made no factual findings on this issue,
this court on appeal should apply a de novo standard of review.
The Parish argues that the trial court expressly decided the central
issue and that its factual findings were fully supported by the record. It
contends that Plaintiffs’ request for de novo review is unwarranted.
13
It is well settled that a court of appeal may not set aside a trial court’s
finding of fact in the absence of manifest error or unless it is clearly wrong.
Rosell v. ESCO, 549 So. 2d 840 (La. 1989).
In all appealable contested cases, other than those tried by a jury, the
court when requested to do so by a party shall give in writing its findings of
fact and reasons for judgment, provided the request is made not later than
ten days after the mailing of the notice of the signing of the judgment. La.
C.C.P. art. 1917(A).
Plaintiffs’ argument that the trial court failed to make a factual finding
regarding the Parish’s duty is incorrect. The trial court directly addressed
Plaintiffs’ claim when it found that the Parish was not required to accept
Unit 2’s streets into the System. Although the trial court did not detail its
finding of fact with reasons for judgment, it presided over the two-day trial,
heard the testimony of the witnesses, reviewed documentary evidence and
considered the parties’ post-trial memoranda. Pursuant to La. C.C.P.
art. 1917(A), Plaintiffs had the opportunity to request written findings of fact
and reasons for judgment but did not do so.
Accordingly, manifest error is the appropriate standard of review in
this case, and this assignment of error lacks merit.
Duty to Accept the Streets
In their second assignment of error, Plaintiffs argue that the trial court
erred in failing to find that the Parish had a mandatory duty to accept
Unit 2’s streets and drainage into the System. They contend that as the
streets and drainage were built to the Parish’s specifications and were
inspected and approved prior to the 2015 flood, the Parish was required to
accept them into the System. They argue that the Parish’s refusal violates
14
Ordinance 110-121(d). They contend that the word “will” in the ordinance
makes the Parish’s acceptance of the streets and drainage into the System
mandatory, not discretionary. They further argue that the record contains no
proof that the Unit 2 streets were damaged.
The Parish argues that the trial court correctly found that its
acceptance of Unit 2’s streets and drainage was discretionary, not
mandatory. It contends that Venture did not prove compliance with several
of the prerequisites for approval, including resolving the flood-related
damage. It argues that the record contains extensive evidence that Unit 2’s
streets and drainage were damaged in the flood, including FEMA reports,
testimony from Mr. Ford and admissions from Mr. Estess. It contends that
Venture’s refusal to acknowledge that its property sustained flood damage
coupled with its refusal to pay for repairs necessary to remedy that damage
left the Parish with no choice but to decline acceptance of the damaged and
unrepaired streets and drainage into the System. It states that its decision not
to accept Unit 2’s streets and drainage because of the damage sustained in
the flood is a discretionary decision grounded in economic policy and
protection of the taxpayers.
A local governmental subdivision may adopt regulations for land use
and zoning. La. Const. art. VI, § 17. Bossier Parish Ordinance 110-121(d),
which was in effect at the time of the 2015 flood, states in part:
Upon final completion of any project, the owner or developer
will present to the police jury a written application to accept the
completed sections of roads and/or streets to be incorporated in
the parish road system, and, after inspection of such roads
and/or streets, the police jury will, upon satisfactory completion
and resolution, accept the roads and/or streets into the parish
road system for permanent maintenance.
15
The trial court was not manifestly erroneous in determining that the
Parish was not required to accept Unit 2’s streets and drainage into the
System.1 Plaintiffs incorrectly focus on the mandatory nature of Ordinance
110-121(d) and its use of the word “will.” The relevant portion of
Ordinance 110-121(d) is the requirement of “satisfactory completion and
resolution.” Plaintiffs’ argument also refuses to acknowledge the
significance of the 2015 flood and its effect on properties in the floodplain.
Although the Parish inspected Unit 2’s streets and drainage and confirmed
that they satisfied its requirements, this inspection occurred before the
June 2015 flood. The record shows that in the weeks following the flood,
Unit 2’s streets were covered by floodwater and sand. After their July 1,
2015 meeting, the Police Jury tabled the acceptance of Unit 2’s streets and
drainage to determine if they were damaged following the flood. As
Plaintiffs never proved the streets were undamaged by the flood or
contributed to the FEMA-identified repairs as requested by the Parish, they
did not meet the ordinance’s requirement of “satisfactory completion and
resolution.” Therefore, the Parish was not mandated by Ordinance 110-
121(d) to accept Unit 2’s streets and drainage into the System.
Accordingly, this assignment of error lacks merit.
Arbitrary and Capricious
In their third assignment of error, Plaintiffs argue that the trial court
erred in failing to find that the Parish’s actions were arbitrary and capricious.
They state that the only reason the Police Jury refused to accept the streets
1
Both parties reference discretionary immunity in their briefs. La. R.S. 9:2798.1.
As the trial court did not err in determining that the Parish was not required to accept
Unit 2’s streets and drainage into the System, we need not address immunity on appeal.
16
and drainage was its allegation that the 2015 flood damaged the
streets. They contend that the Parish’s refusal to act in accordance with its
own ordinance, supported only by an unproven concern of damaged streets,
is the definition of willful and unreasoning action in disregard of the facts.
They also note that the Parish’s treatment of other properties on the river
side of the levee demonstrates the arbitrary and capricious nature of the
Parish’s treatment of Unit 2.
The Parish argues that the trial court properly rejected Plaintiffs’
claim that it acted arbitrarily and capriciously. It states that it acted within
its police powers based upon flood damage to Unit 2’s streets and
drainage. It contends that its refusal to accept damaged, unrepaired streets
was rationally related to protecting the public fisc. It states that it presented
evidence-based reasons for its decision, including FEMA’s findings,
engineering testimony and its obligation to avoid assuming permanent
responsibility for defective infrastructure. It contends that it exercised and
applied its valid zoning authority evenhandedly and held Plaintiffs to the
same standards as any other owner or developer.
The terms “arbitrary and capricious” mean willful and unreasoning
action, absent consideration and in disregard of the facts and circumstances
of the case. Toups v. City of Shreveport, 10-1559 (La. 3/15/11), 60 So. 3d
1215. However, when there is room for two opinions, an action is not
arbitrary or capricious when exercised honestly and upon due consideration,
even though it may be believed an erroneous conclusion has been reached.
Id. Generally, the action of a governmental body is arbitrary and capricious
and unreasonable if it bears no relation to the health, safety or general
welfare of the public. Id.
17
The trial court did not err in determining that the Parish’s actions were
not arbitrary and capricious. It was reasonable for the Police Jury to table
approval of Unit 2’s streets and drainage because it could not confirm that
the streets were undamaged, as accepting them into the System obligates
public funds for maintenance and repairs. Mr. Ford’s testimony regarding
the acceptance of Redwood Place’s streets and drainage into the System
demonstrates that the Parish similarly applied Ordinance 110-121(d) to
Unit 2’s streets and drainage.
The record, notably through Mr. Fruge’s testimony, demonstrates that
the Parish was prudent in its temporary placement of a moratorium on new
building permits for three subdivisions on the river side of the levee
following the 2015 flood. This decision was directly related to the health,
safety and general welfare of the public as these areas were covered in three
feet of floodwater and the Parish sought information about how to prevent
future damage from flooding. Nothing in the record suggests that the
Properties were treated differently than the other two subdivisions affected
by this moratorium. Plaintiffs’ attempt to equate new building projects in
Units 2 and 4 with rebuilding and repairs in Units 1 and 3 is misplaced.
Accordingly, this assignment of error lacks merit.
Takings
In their fourth assignment of error, Plaintiffs argue that the trial court
erred in failing to rule on their alternative claim and to find that the Parish’s
refusal to accept Unit 2’s streets and drainage into the System constituted an
illegal taking under La. Const. art. I, § 4.
18
The Parish argues that Plaintiffs have waived this claim because they
provide no argument, no record citations and no authority regarding this
assignment of error.
As the trial court addressed Plaintiffs’ primary claim and determined
that the Parish was not required to accept Unit 2’s streets and drainage into
the System, it did not err in not ruling on Plaintiffs’ alternative claim.
Accordingly, this assignment of error lacks merit.
Exception of Prescription
The Parish filed an answer to the appeal and argues that the trial court
erred in denying its exception of prescription. It contends that Plaintiffs’
original petition contains no factual connexity to the claims asserted seven
years later in their amended petition concerning the Parish’s refusal to accept
Unit 2’s streets and drainage. It argues that as the amended claim elaborates
on facts not previously alleged, it cannot relate back pursuant to La. C.C.P.
art. 1153; it is prescribed and should have been dismissed.
Plaintiffs argue that the trial court correctly denied the exception of
prescription. They note that Louisiana is a fact-pleading state and that the
petitions alleged the same facts. They contend that the amendment relates
back because only the legal theory changed.
When the action or defense asserted in the amended petition arises out
of the conduct, transaction or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to the date of
filing the original pleading. La. C.C.P. art. 1153. The purpose of La. C.C.P.
art. 1153 is to allow amendment of pleadings despite technical prescriptive
bars when the original pleading gives the parties fair notice of the general
fact situation out of which the amended claim or defense arises. Bryant v.
19
Tokio Marine HCC, 54,771 (La. App. 2 Cir. 11/16/22), 351 So. 3d 837. The
doctrine of relation back of amended pleadings should be liberally applied,
particularly in the absence of prejudice. Gamble v. Gamble, 54,595 (La.
App. 2 Cir. 1/18/23), 354 So. 3d 864.
The trial court did not err in denying the Parish’s exception of
prescription. The allegations in both petitions arise from the same conduct,
transaction or occurrence, i.e., how the Parish’s actions following the
2015 flood affected Plaintiffs’ development of Units 2 and 4. Plaintiffs’
original petition addresses the Parish’s flood damage prevention ordinances,
required permits and approvals, the BFE and ABFE and the building
moratorium. A liberal application of this doctrine confirms that Plaintiffs’
amended petitions related back to their original petition.
Accordingly, this assignment of error lacks merit.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment
dismissing the claims of Plaintiffs-Appellants C&W Developers, L.L.C. and
Venture Wireless, LLC. We also affirm the trial court’s denial of
Defendant-Appellee Bossier Parish, Louisiana’s exception of prescription.
Costs of this appeal are assessed to Plaintiffs-Appellants C&W Developers,
L.L.C. and Venture Wireless, LLC.
AFFIRMED.
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HUNTER, J., dissenting.
While I do not agree the Parish was mandated to approve the streets,
and I am mindful of the manifest error/clearly wrong standard of review, I
would reverse the trial court’s judgment for the following reasons.
The evidence established that the Police Jury approved the streets,
subject to two conditions – (1) the completion of the emergency access, and
(2) the inclusion of 15-foot setbacks. Both conditions were satisfied, and the
Parish engineer signed off on the plat in February 2015, which, as Mr. Ford
testified, signified the Police Jury’s approval. Further, the streets passed the
Parish’s inspection prior to the flood. It appears that the plaintiff completed
each task an