Recent Victories

Port of St. Bernard Defeats Constitutional Challenge to Expropriation

Sher Garner represents the St. Bernard Port, Harbor and Terminal District in an expropriation case in which the Port has expropriated approximately 70 acres of land with improvements along the Mississippi River in St. Bernard Parish. The Port's maritime operations are at capacity, and the Port needed additional land and river frontage to conduct cargo operations. The property, owned by a single landowner, was expropriated in December 2010, pursuant to Article I, s 4 of the Louisiana Constitution, which identifies public ports as a public purpose for expropriation. The landowners challenged the Port's ability to take the property under the Constitution. On February 1, 2012, the district court conducted an evidentiary hearing and ruled in favor of the Port, upholding the expropriation.

After the expropriation was upheld, the parties spent twenty-four days in trial to determine the value of the expropriated property. Upon expropriating the property, the Port had deposited $16,000,000 in the Registry of the Court as just compensation. The landowner countered that the property was worth approximately $60,000,000 based upon a future proposed development. On July 31, 2016, district court ruled that the just compensation for the property was $16,000,000. The landowner appealed both the decision on the constitutionality of the expropriation and the value of the property. The Louisiana Fourth Circuit Court of Appeal upheld both decisions in the Port’s favor on December 14, 2016.


Sher Garner obtains Supreme Court stay of judgment, avoiding house arrest for City Mayor Mitch Landrieu

On behalf of the City of New Orleans, its Mayor, and its City Council members, the Firm successfully obtained from the Louisiana Supreme Court a stay of a judgment of contempt that would have placed City Mayor Mitch Landrieu under house arrest for not having paid a $75 million ($142 million with interest) judgment in favor of a class of New Orleans firefighters. The class action suit relates to back pay for firefighters mandated by state law and has been pending for several decades. The City administration under Mayor Landrieu has taken numerous steps to address a consent judgment inherited from prior administrations: obtaining approval from the state legislature to propose a millage to taxpayers, establishing a task force to analyze firefighter pension and pay issues, and supporting several proposals to pay the judgment. The plaintiff class filed a motion for contempt against the City, the City Council members, and the Mayor. The district court granted the motion, found the Mayor in contempt, and ordered that if he did not resolve the issue of paying the underlying judgment within one week, he would be placed under house arrest every weekend from 5:00 p.m. on Friday to 5:00 p.m. on Sunday.

The Firm filed numerous pleadings to protect the Mayor and the Council members from the effects of the contempt judgment. The same day that the contempt judgment issued, the Firm filed two notices of intent to seek supervisory writs of review in the appellate courts, two petitions for suspensive appeal of the judgment, and a motion to stay the judgment pending appellate review.

A round of briefing in the district court ensued, after which the district court declined to rule on any of the City’s filings, leaving the Mayor with an inability to pay the underlying judgment and facing house arrest. With a 5:00 p.m. house arrest looming, on Friday, September 11, 2015, the Firm filed on behalf of the City defendants, in both the Louisiana Fourth Circuit Court of Appeal and the Louisiana Supreme Court, applications for writs of mandamus and related motions to stay, seeking a writ of mandamus directing the district court to rule on the City’s requests for a stay and a suspensive appeal of the contempt judgment. That same day, a rapid-fire round of oppositions and replies in both appellate courts ensued, after which the Fourth Circuit, late Friday afternoon in a 2-1 decision, denied mandamus relief. To protect the Mayor and the Council, the Firm proceeded to file additional writ applications on the merits of the contempt judgment and related motions to stay after 4:30 p.m. Shortly after 4:50 p.m., and with only minutes to spare before the 5:00 p.m. house arrest deadline, the Supreme Court granted the writ of mandamus, reversed the Fourth Circuit’s decision, stayed the entire contempt judgment (including the house arrest sanction), and ordered the district court to grant the City an appeal that suspends all effects of the contempt judgment.


Sher Garner wins $6.8 million jury verdict in Hotel Investors, LLC v. State of Louisiana, Department of Development and Transportation.

The Firm successfully obtained a $6.8 million jury verdict for Hotel Investors, LLC, in the 24th Judicial District Court for the Parish of Jefferson, Louisiana, in Hotel Investors, LLC v. State of Louisiana, Department of Development and Transportation. Hotel Investors owns the Hampton Inn located at 2730 North Causeway Boulevard in Metairie, Louisiana. The Louisiana Department of Development and Transportation ("DOTD") recently completed a multi-year construction project in the
I-10/Causeway Boulevard/Veterans Boulevard interchange, which was designed to alleviate traffic congestion in the area. As part of the project, the DOTD constructed an elevated fly-over bridge within ten yards of the hotel. The DOTD also shut down a U-turn that had allowed guests exiting
I-10 at Causeway Boulevard to reach the hotel without having to cross Veterans Boulevard.

Hotel Investors sued the DOTD for inverse condemnation, contending that the DOTD's road construction project, including the fly-over bridge, had "taken" its property without just compensation as required under the Louisiana Constitution. The testimony at trial demonstrated that the

construction of the project and fly-over bridge, which involved pile driving near the hotel, had caused physical damage to the Hampton Inn, producing cracks in an interior stairwell, the pool, and a parking lot. The road construction project also diminished access to the Hampton Inn due to the closure of the U-turn and made the hotel less visible to guests coming to the hotel because of the fly-over bridge. In addition, the fly-over bridge and modifications to the adjacent service road increased the traffic noise in the vicinity of the hotel and negatively impacted hotel guests' views from the rooms facing Causeway Boulevard, replacing views of the New Orleans skyline with views of steel girders and passing 18-wheelers.

After a three-week trial, the jury found that the DOTD's road construction project had constitutionally taken Hotel Investors' property, resulting in an inverse condemnation. The jury awarded Hotel Investors: $132,980 for the physical damage the construction caused to the Hampton Inn, $1,250,000 for the economic losses the hotel suffered during the construction project, and $5,491,666 for the hotel's loss in value due to the permanent impact of the project and the fly-over bridge on the hotel. The jury's verdict totaled $6,874,646.


Court rules in favor of Whitney-Cecile Home Owner Improvements Association Inc.

The Firm successfully represented the interests of a local homeowners group, the Whitney-Cecile Homeowners Association in Oscar J. Tolmas v. Parish of Jefferson. Plaintiff, Morning Park, LLC, was denied a commercial construction permit for property along Veterans Blvd. in Jefferson Parish, Louisiana, because the property was zoned residential. Morning Park then petitioned the district court to overrule the zoning decision to deny a permit. It sought to enforce a 1963 judgment obtained by Oscar J. Tolmas to permit him to place shells on the driveway that served as a means of ingress and egress from his commercial property at the time. Mr. Tolmas’ use of the property for commercial purposes pre-dated the Jefferson Parish Comprehensive Zoning Ordinance ("CZO"). The continued commercial use was permitted because the CZO allowed preexisting nonconforming use to continue under certain circumstances.

Morning Park argued to the district court that the 1963 judgment permanently allowed commercial use of the Tolmas property and sought to enforce the 1963 judgment. Jefferson Parish argued that the non-conforming use of the property as commercial property had been lost under the CZO, which provided that nonconforming use could be lost if the property was vacant for one year or discontinuing the commercial use of the property. The district court held that the 1963 judgment should be enforced. Jefferson Parish appealed. At that time, the Homeowners Association became aware of the district court decision and retained the Firm to represent its interests and enforce the CZO on appeal.

The Homeowners were concerned that commercial use of the property would adversely impact the value of their homes and their quality of life. The Firm filed amicus briefs on behalf of the Homeowners Association and argued to the appellate court that the CZO designation of the property as residential should be enforced. The Firm further argued that pursuant to the CZO, the non-conforming use enjoyed until 2004 was lost when Mr. Tolmas demolished the building on the property. Thereafter, Morning Park purchased the property. In 2010, at least 5 years after the property had ceased to be used for commercial purposes, Morning Park sought a permit for commercial construction, which was properly denied.

On appeal, the court agreed with the Homeowners Association and Jefferson Parish and reversed the district court’s decision. The appellate court held that the 1963 judgment did not concern zoning issues and related only to a dispute between Mr. Tolmas and Jefferson Parish regarding ingress and egress to his property. It did not give Mr. Tolmas or his successors the unlimited right in perpetuity to use the property in any way he might choose. The appellate court further held that upon the 2004 demolition of the building on the Tolmas property, the non-conforming use of the property as commercial property was lost.


Sher Garner Attorneys Defend Against Injunction in New Orleans Taxicab Reform Case

In Dennis Melancon, Inc. et al. v. City of New Orleans, No. 2:12-cv-1337, Sher Garner trial attorneys (including James Garner, Debra Fischman, and Howard Boyd) defended the City of New Orleans in a two-day preliminary injunction trial. Trial occurred on August 14 and 15, 2012 in the United States District Court for the Eastern District of Louisiana before the Honorable Eldon Fallon. During the trial, taxicab stakeholders sought to preliminarily enjoin the City of New Orleans from enforcing regulations designed to improve the local taxicab industry. In support of the request for a preliminary injunction, the taxicab stakeholders alleged that the City's recently-passed taxi reform ordinances were unconstitutional.

On August 20, 2012, the Honorable Eldon Fallon issued a 35-page opinion denying the taxicab stakeholders' request to preliminarily enjoin the enforcement of various reforms. Specifically, the Court refused to enjoin the City from imposing maximum vehicle age requirements on taxis and also refused to enjoin the City from requiring taxicabs to be equipped with credit card machines, security cameras, and global positioning systems.

Following an expedited briefing on appeal, on December 18, 2012, the United States Court of Appeals for the Fifth Circuit affirmed Judge Fallon's order insofar as it denied a preliminary injunction. On appeal, Sher Garner attorneys also obtained a reversal of the district court order insofar as it granted the taxicab stakeholders' request for a preliminary injunction. The Court of Appeals reversed the district court's ruling that had enjoined the enforcement of City ordinances stating that taxicab certificates of public necessity and convenience (CPNCs) are not property rights and that the transfer of CPNCs is discretionary. Sher Garner attorney James Garner successfully argued to the Court of Appeals during oral argument that taxicab CPNCs are privileges granted by the City rather than a constitutionally protected form of property.


Implicit Oil & Gas, L.P. v. GoMex Energy Offshore, Ltd. and GoMex Energy, LLC

The firm successfully represented Implicit Oil & Gas, L.P., a Dallas-based oil and gas exploration and development company, in a lawsuit arising out of a federal offshore oil and gas lease. Implicit originally entered into the lease with Energy Resource Technology GOM ("ERT"), with ERT serving as the Operator under the parties' Joint Operating Agreement. Problems arose, however, after ERT, a publically-traded company with a wealth of experience in the oil and gas industry, assigned its 60% working interest to GoMex and designated GoMex as Operator of the block.

Implicit filed suit against GoMex in the United States District Court for the Northern District of Texas, Dallas Division, seeking, among other things, an accounting, various damages, and an order removing GoMex as Operator. Litigation between the parties stretched on for nearly two years until, in January 2012, Implicit retained Sher Garner as lead counsel.

With Sher Garner as counsel, Implicit was able to plan and prepare a winning trial strategy. Just days before the scheduled trial in late February 2012, Sher Garner, working closely with Implicit, was able to strike a favorable settlement after an 8.5-hour settlement conference presided over by a United States Magistrate Judge. When GoMex refused to perform under the signed settlement agreement, however, Sher Garner guided Implicit through numerous negotiations and settlement conferences and engaged in intense motion practice. As a result of those efforts, in late July 2012, Implicit was able to secure a final settlement that was significantly more beneficial than the initial February 2012 settlement.


Port of St. Bernard Defeats Constitutional Challenge to Expropriation

Sher Garner represents the St. Bernard Port, Harbor and Terminal District in an expropriation case in which the Port has expropriated approximately 70 acres of land with improvements along the Mississippi River in St. Bernard Parish. The Port's maritime operations are at capacity, and the Port needed additional land and river frontage to conduct cargo operations. The property, owned by a single landowner, was expropriated in December 2010, pursuant to Article I, s 4 of the Louisiana Constitution, which identifies public ports as a public purpose for expropriation. The landowners challenged the Port's ability to take the property under the Constitution. On February 1, 2012, the district court conducted an evidentiary hearing and ruled in favor of the Port, upholding the expropriation. The landowners sought supervisory writs with the Louisiana Fourth Circuit Court of Appeal and the Louisiana Supreme Court, both of which were denied.


Rain CII Carbon LLC v. ConocoPhillips Company:

The firm successfully represented Rain CII Carbon LLC in an international commercial arbitration, which we tried to conclusion in a three-day final arbitration hearing. ConocoPhillips and its UK affiliate asserted a claim for declaratory relief alleging that Rain CII agreed to change the price term contained in a ten-year supply contract for green anode grade coke and, in the alternative, to invoke "final offer"/"baseball" arbitration to select the new price term proposed by ConocoPhillips. Rain CII denied that it had agreed to a new price term, asserted the existing price term as its "baseball" arbitration position, and counter-claimed for amounts Rain CII paid under protest in response to invoices in which Conoco unilaterally invoiced Rain CII at the alleged changed price term. Rain CII prevailed at the final hearing and was awarded the full amount of its counter-claim -- $17,702,585.33. In addition, the arbitrator selected Rain CII's "baseball" position -- the existing contract price term. ConocoPhillips moved in the United States District Court for the Eastern District of Louisiana to vacate the award, and Rain CII filed a cross-motion to confirm the arbitrator's award. The Court denied ConocoPhillips' motion and granted Rain CII's motion, confirming the arbitrator's award. Rain CII Carbon LLC v. ConocoPhillips Co., 09-4169, 2011 WL 2565345 (E.D. La. Jun. 27, 2011). The United States Court of Appeals for the Fifth Circuit affirmed the District Court's decision to confirm the award. Rain CII Carbon LLC v. ConocoPhillips Co., 11-30669, 2012 WL 753263 (5th Cir. Mar. 9, 2012).

When certain district court decisions were appealed to the United States Fifth Circuit Court of Appeals in the litigation against the United States Army Corps of Engineers arising from the levee failures after Hurricane Katrina, our firm was enlisted to file an amici curiae brief on behalf of the State of Louisiana, the Parish of St. Bernard, corporate clients such as Rain CII Carbon LLC and United Health Services, Inc., and a slew of environmental and community organizations.

The firm was on the successful side of the appeal with regard to plaintiffs located in St. Bernard Parish and the Lower Ninth Ward of New Orleans, as the Fifth Circuit affirmed damages awards in favor of the trial plaintiffs in those areas arising from the levee breaches along the Mississippi River-Gulf Outlet. The Fifth Circuit affirmed that the United States Government is not immune to those claims.

The Government had tried to argue that it was immune under the Flood Control Act of 1928, which grants immunity to the Government for damage from flood waters arising from flood control projects. The Fifth Circuit rejected this argument, finding that the Corps's decision to dredge the MRGO instead of implementing foreshore protection along its banks was not flood control activity qualifying for immunity under the Act. The Fifth Circuit adopted the district court's analogy of a Navy vessel crashing into a levee and causing a flood — Government negligence unrelated to the flood control activity — which prevents application of immunity.
The Government also asserted that it was immune under a second theory known as the discretionary function exception, which shields governmental action that is left to the discretion of a governmental agency, as opposed to being dictated by statute or regulation, and that also is the sort of discretionary action that is rooted in considerations of public policy. The Fifth Circuit rejected this immunity argument as well, finding that policy played no role in the Government's decision to delay armoring the MRGO, and thus the Corps's negligent decisions rested on flawed applications of objective scientific principles rather than policy.
On issues unrelated to our firm's amicus brief, the Fifth Circuit unfortunately affirmed decisions (1) denying recovery to plaintiffs in New Orleans East based on causation issues, and (2) granting immunity to the Government for its negligence with regard to the breaches of the 17th Street, Orleans Avenue, and London Avenue canals, which flooded other parts of New Orleans and Metairie after Hurricane Katrina. The Fifth Circuit's decision is reported at In re Katrina Canal Breaches Litigation, --- F.3d ----, 2012 WL 678135 (5th Cir. 2012).