APPELLATE BRIEFS FILED IN SELA CASE
Briefs have been filed at the Fourth Circuit Court of Appeals in the NOSWB’s appeal of the trial court’s favorable ruling to plaintiffs. Appellee Brief – Group A- FINAL (2-5-19)f. Sewell.SWB.Original.Appellate.Brief.190116 (1). Several noteworthy points:
1) The Trial Court Judge, Nakisha Ervin-Knott, based her ruling on the Holzenthal decision as legal precedent.
Nowhere in the NOSWB Brief is the Holzenthal case even mentioned or discussed.
2) The NOSWB wants the Court to find the contractors at fault, but it didn’t put on any evidence of the Contractor’s negligence. The NOSWB has the burden of proof on this and has failed to meet their burden by not putting on any evidence.
3) Plaintiffs continue to obtain judgments against the NOSWB, and awards for attorneys fees and costs as the prevailing party. Most of these awards are not subject to federal credits, and continuing to incur them makes no economic sense.
Jan. 28, 2019, NOLA.com: S&WB upheld evidence in uptown canal lawsuit, attorneys claim
Jan. 28, 2019, WWL-TV: Judge won’t hold SWB in contempt of court over data
Jan. 18, 2019, N.O. Advocate Letters: How much will SW&B Litigation Cost Taxpayers?
Dec. 24, 2018, N.O. Advocate Letters: Sewerage & Water Board outrage shows why reform is needed
Nov. 29, 2018, Uptown Messenger – Judge holds Sewerage & Water Board liable for $500,000 in damages to 11 homes near drainage projects
Nov. 29, 2018, nola.com – Court rules again for Uptown homeowners in canal construction damage lawsuit against S&WB
SECOND TRIAL CONCLUDES AFTER FOUR DAYS – Oct. 19, 2018 – Evidence and testimony concluded yesterday before Judge Nakisha Ervin-Knott as 10 homeowners presented their claims for damages after a four day trial. The judge listened intently to homeowners as they testified to the substantial damage to their homes and disruption to their lives as a result of the years of industrial construction that has taken place so close to their homes because of the drainage project. And still, the New Orleans Sewerage and Water Board refuses to settle or mediate these claims, instead opting to pay million of dollars in attorneys fees to try each of these 300 cases in Civil District Court. The court ordered NOSWB to pay over a half million dollars after the first trial of 5 claims in April, 2018.
Sept. 18, 2018 – An Open Letter to the New Orleans City Council from over 100 plaintiffs in the SELA Uptown Drainage Lawsuit:
We … are your constituents and property owners who have been damaged by construction of the SWB’s SELA drainage project. We have listened with great interest to your recent meetings regarding the SWB’s role with this project and the disastrous effect the project has had on our homes and lives for years on end. We thank you for your concern – it seems like no one else at City Hall is listening to us.
The purpose of this letter is to request that you schedule a special City Council session to question the SWB about the SELA project. We would like to know about the millions of dollars that have been expended in defending, rather than resolving, our claims. We also would like to know why the SWB refuses to resolve our claims in the face of abundant evidence that the SWB is responsible for the SELA project and that this project has caused damages to our homes and lives, as confirmed by a judgment issued by a court of this State and Parish.
We ask that you please give this matter your urgent attention. This is of utmost importance to us personally and to the City as a whole. Thank you for your time and attention.
Court Awards Over Half Million in Attorney’s Fees
Judge Nakisha Ervin-Knott of the Civil District Court ordered the New Orleans Sewerage & Water Board to pay $577,000 in attorney’s fees and costs in the first five SELA cases litigated before the court in April.
The court verified the amount of fees using a 10-point analysis.”We submitted voluminous time records, cost records, invoices and data,” said Attorney Michael Whitaker. “We were forced to hire a geotechnical engineer, a civil engineer and a real estate expert to prove our damages. The New Orleans Sewerage & Water Board has refused our repeated efforts to mediate or settle these claims and is wasting taxpayer dollars by having to engage their own expert witnesses as we continue to try these cases in court, a long, slow and expensive process.” The award applies to only the first 5 cases. The next trial of ten cases is set for October. A total of 300 cases were set for trial.
Aug. 23, 2018, nola.com, Sewerage & Water Board absent at drainage task force meeting
Aug. 22, 2018, nola.com, Sewerage & Water Board interim director replaced again; 3 deputy directors resign
Aug. 16, 2018, nola.com, Top Sewerage & Water Board officials get salary hikes amid utility’s financial strain
August, 12, 2018, New Orleans Advocate –As legal fees mount, New Orleans City Council members push for S&WB to settle Uptown damage claims
April 25, 2018 -COURT FINDS NOSWB LIABLE; AWARDS DAMAGES
Read the judgment
Judge Nakisha Ervin-Knott of the Civil District Court for the Parish of Orleans issued a judgment finding the New Orleans Sewerage & Water Board responsible for property damage to 5 residences near the construction site, and awarded compensation for the homeowners’ loss of use and enjoyment. The Court rendered a judgment totaling over half a million dollars to compensate for the varying levels of damage at each of the homes.
Trial attorney Joseph M. Bruno stated: “We are pleased to report that the Court issued a judgment in the first group of trials regarding residents’ claims for damages resulting from the uptown drainage project.” Co-counsel for plaintiffs attorney Michael Whitaker said: “We tried for three and a half years to resolve these claims with the Sewerage and Water Board and they refused, so we were forced to go to trial and we are happy that justice has been served,” he said.
These five cases were the first of more than 300 that have yet to be litigated in court. The second flight of trials will be scheduled by the court in the near future
April 26, 2018 – New Orleans Advocate, Judge rules S&WB owes $500,000 to uptown homeowners
Sept. 13, 2017 – The New Orleans Sewerage and Water Board (NOSWB) suffered more legal setbacks in court on Sept. 13 as it defends against the claims of over 275 uptown property owners suing for damages from the massive SELA uptown drainage project.
Federal Judge Kurt Engelhardt rejected NOSWB’s second attempt to lay blame on government contractors, which are immune from suit. Just a couple of weeks ago, an appellate court upheld their dismissal. Engelhardt also rejected NOSWB’s attempt to move the case from state to federal court. NOSWB unsuccessfully argued that the addition of 56 new plaintiffs justified their failed strategies.
The ruling virtually assures that trial will go forward in Civil District Court for an initial group of five plaintiffs before Judge Nakisha Ervin-Knott.
Oct. 6, 2017, Uptown Messenger, Candidates pledge support for uptown homeowners
Sept. 13, 2017, nola.com, New Orleans Sewerage & Water Board can’t blame contractors for drainage damage
5th CIRCUIT REJECTS NOSWB DEFENSE
Aug. 28, 2017 -The United States Fifth Circuit Court of Appeal rejected an attempt by the New Orleans Sewerage and Water Board to shift blame to private contractors working on the SELA Uptown Drainage Project, which has significantly damaged hundreds of uptown homes and businesses. The ruling clears the way for homeowner trials to proceed in Civil District Court.
“The Fifth Circuit’s ruling is correct under the longstanding legal principle of government contractor immunity,” said Michael Whitaker, attorney for 275 property owners in the case. “It is a significant blow to the Sewerage and Water Board’s strategy to delay this case in an attempt to discourage the plaintiffs from pursuing the damages that are owed to them. Worse yet, NOSWB has $115 million set aside to pay these claims. Meanwhile the damage to plaintiffs’ homes and businesses is worsening over time. This case is over two years old and the plaintiffs deserve their day in court. We view this ruling as a very positive step for the plaintiffs.” Whitaker said. 5th Circuit ruling Affirming Dismissal 8-29-17
Aug. 30, 2017, nola.com: Court won’t let Sewerage and Water Board shift blame from uptown drainage projects
MORE DELAY TACTICS FROM NOSWB
Aug. 9, 2017: The New Orleans Sewerage and Water Board continues its use of delay tactics to keep plaintiffs from receiving long overdue
settlements for the homes and businesses that have been damaged by the SELA drainage project.
NOSWB initially agreed to mediation and now refuses to mediate these claims.
They object to the addition of 56 new plaintiffs seeking to join the lawsuit. Why now?
They filed a third-party claim against contractors that the federal court already rejected. Read: Motion to Sever 8-9-17
They have answered our lawsuit with denials, a slap in the face to residents unable to repair their homes and businesses until these claims are resolved.
Fact: NOWSB sits on $115 million in reserves set aside to pay these claims.
RULINGS PAVE WAY FOR TRIAL
July 5, 2017: Hon. Nakisha Ervin-Knott has paved the way for trials to proceed against the New Orleans Sewerage and Water Board for damage to uptown homes and business as part of the SELA Drainage Project. In several rulings on Friday in favor of plaintiffs, the court refused attempts by the NOSWB to delay the litigation. The court also allowed the addition of 50 plaintiffs to the lawsuit. Judge Ervin-Knott has ordered that discovery to conclude this September on five cases, scheduling the claims of older plaintiffs (70+) first. “Given the proposed timeline as I view it, the first cases should come up for trial in October or November,” said Attorney Michael Whitaker. “There is light at the end of the tunnel for plaintiffs whose lives have been upended by the massive SELA construction project.”
HEARING SET FOR JUNE 30, 2017
June 27, 2017: Judge Nakisha Ervin-Knott will hear several motions in the uptown drainage lawsuit on Friday, June 30 at 11 a.m. in her Division D courtroom. NOSWB has filed several baseless motions which we feel are merely delay tactics, including: that we have cumulated too many claims into the lawsuit; that we should not be allowed to add plaintiffs in the case; that we should not be allowed to prioritize scheduling of claims brought by older plaintiffs; that we have not sufficiently pled the facts of our case. We will also be filing a case management order with the court so that we can finally begin scheduling trials in this case. For more: MIO Exception of Vagueness Ambiguity 6-22-17 MIO Exception of Improper Cumulation 6-22-17
May 31, 2017: Following the recent judicial election, our case has been assigned to the Hon. Nakisha Ervin-Knott in Division “D” of the Civil District Court for Orleans Parish. On May 15th, Judge Knott took the bench of her new section and, pursuant to the Motion for Status Conference we filed, immediately set a scheduling conference for May 30th at 9:00 am. We anticipate that Judge Knott will set hearing dates for our pending motions for trial preference and to supplement the petition, as well as set pretrial and trial dates that will move the case towards conclusion.
We will give an update on the case at a meeting on Wednesday, May 31 at 7:00 p.m. at The Columns Hotel, 3811 St. Charles Ave. Also invited to the meeting are any property owners who attempted to resolve their claims with the SWB under its unwritten and undefined “claims process” and have recently received form denial letters for these claims from the SWB.
May 2, 2017: Plaintiffs move for trial: Nakisha Ervin-Knott was recently elected Judge of Division “D” of the Civil District Court and will preside over the Uptown Drainage Lawsuits. Attorney Michael Whitaker immediately moved to schedule the Sewell cases for trial and asked the court for preferential treatment given that the plaintiffs are over 70 years of age and their homes and property have sustained significant damages. 2017-5-2 Motion for Trial Preference (1).
April 14, 2017: Fox8 TV:Drainage construction Uptown blamed for water bill spikes
Feb. 7, 2017: New Orleans Advocate: Frustrating, controversial Napoleon Avenue drainage project finally complete — more or less
Jan. 5, 2017 – Order Remanding Case to State Court
Dec. 29, 2016, 2016: Court Dismisses Gov’t Contractors; SWB Remains A Defendant: This dismissal is consistent with legal precedent and has no effect on the claims home and business owners are bringing against the Sewerage & Water Board for damage caused by the construction. Suing the contractors was an attempt by the SWB to evade its written agreement to pay for these damages, and the Court appropriately denied this effort. The Sewerage and Water Board remains a defendant, and Plaintiffs are confident that it will be held responsible for the significant damages inflicted by the construction project. Trial is set for the Spring and Summer of 2017. O&R – Denying Motion to Sever & Remand
Dec. 29, 2016: Nola.com: Judge dismisses lawsuit blaming contractors for Uptown drainage project damage
Dec. 7, 2016: New Orleans Advocate: S&WB seeks to block mediation over Uptown SELA damage suits
Dec. 6, 2016: Just mere days before the mediations for the Group 1 plaintiffs are set to begin, the SWB has refused to appear, in direct violation of the Court’s Discovery Scheduling Order, which set the Group 1 mediations to start December 6. We are vigorously challenging the SWB’s last minute withdrawal from mediations.
Oct. 12, 2016: Denial of motion for summary judgment; Court urges settlement Of significance: the Court observed that the SWB’s substantive role with the SELA Drainage Project remains unchanged from Holzenthal to the present. The Court also stated that as a result of the SWB’s role the case should be settled.
September 6, 2016: Plaintiffs ask court to find NOSWB liable for Inverse Condemndation
July 26, 2016, Uptown Messenger: Mediation to begin in lawsuits over property damage from SELA drainage projects
July 26, 2016: nola.com: $86 million Uptown drainage lawsuit heads to mediation
July 25, 2013 MEDIATION PROCESS BEGINS IN UPTOWN SELA DRAINAGE LITIGATION
June 28, 2016 Scheduling Order signed by U.S. Magistrate Judge Daniel E. Knowles III
June 27, 2016: Court Enters Scheduling Order as Proposed by Whitaker Law Firm Containing Accelerated Case Timeline and Requiring Mediation
March 17, 2015: More merchants could join suit against Southeast Louisiana Drainage Project
February 2, 2016: Letters to Councilwomen Cantrell and Guidry seeking urgent assistance for Homeowners
January 26, 2016: New Orleans residents’ suit for damages caused by development echoes earlier court case
JANUARY, 13 2016: TRANSCRIPT OF HEARING
December 29, 2016: UPTOWN PROPERTY OWNERS FED UP WITH DAMAGES T FILE CLASS ACTION LAWSUIT AGAINST ARMY CORPS OF ENGINEERS TO HALT CONSTRUCTION AND TO IMPLEMENT MITIGATION PLAN
DECEMBER, 18 2015: TRO COMPLAINT
October, 1 2015: Prytania residents decry “water torture” as completion date for construction delayed again to February
September, 19 2015: REPLY TO CONTRACTORS’ oPP; Case 2:15-cv-03117-KDE-DEK Document 27 Filed 09/14/15
September, 14 2015: REPLY TO Sewage & Water Board of New Orleans oPP; Case 2:15-cv-03117-KDE-DEK Document 26 Filed 09/14/15
September, 04 2015: OPPOSITION OF THE SEWERAGE AND WATER BOARD OF NEW ORLEANS TO PLAINTIFFS’ MOTION TO SEVER AND REMAND
MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION TO SEVER AND REMAND
AUGUST 20 2015: More Uptown residents join lawsuit against S&WB as agency casts blame on contractors
August, 14 2015: Notice of Neighborhood Meeting – August 19th at The Columns Hotel
Click here for more information
June 30, 2015: Notice of Neighborhood Meeting – July 9th at St. Matthews Church
June 10, 2015: WDSU-TV, Uptown residents file lawsuit against Sewerage & Water Board over construction damages
June 10, 2015: WWL-TV, More residents join suit over drainage work
June 10, 2015: Nola.com: Dozens join lawsuit against New Orleans Sewerage & Water Board over SELA canal projects
June 10, 2015: Uptown Messenger: Dozens more Uptown residents join lawsuit over damage from drainage work
6/10/2015: HOMEOWNERS AND BUSINESSES FILE SUIT AGAINST THE NEW ORLEANS SEWERAGE AND WATER BOARD FOR DAMAGES FROM MASSIVE UPTOWN SELA DRAINAGE CONSTRUCTION PROJECT
June 10, 2015, New Orleans, LA – An additional 71 Uptown residents and business owners whose homes and property have been shaken to the core for months by heavy machinery working on the Southeast Louisiana Drainage Project joined the litigation against the New Orleans Sewerage and Water Board (“SWB”) for repairs and damages.
The additional plaintiffs were added today to the suit filed in New Orleans Civil District Court by Attorneys Michael Whitaker and Joseph M. Bruno. At a news conference, Whitaker pointed out extensive cracking and deterioration to a property on Napoleon Avenue as a result of vibration. The building’s raised concrete foundation was built after Katrina, and had been engineer-designed and city-approved as code compliant.
On May 11, 2015, three Uptown homeowners were the first to file suit against the SWB for structural damage, alleging that pile driving, continuous vibration and other activities constitute an inverse condemnation of their property for which they are owed damages. The 71 new plaintiffs adopt and make these same allegations. The lawsuit does not seek to stop the drainage construction from proceeding. Rather, the property owners seek the cost of repairs for the damage to their homes and businesses.
“Today’s addition of 71 property owners reflects the widespread, serious damage being caused by the heavy industrial activity adjacent to private properties and businesses. The claimants are experiencing major settlement and vibration damage directly resulting from dewatering, steel sheet pile driving, and timber pile driving. Movement of heavy equipment including 70-ton cranes, pile driving hammers, excavation equipment, trucks, tractors and other heavy machinery is causing the damage,” said Attorney Michael T. Whitaker. While residents are willing to tolerate some inconvenience for the greater good, as the project purports to achieve, the plaintiffs “should not have to sacrifice the structural stability of their homes and businesses, nor the quality of their lives,” Whitaker said.
“These residents are being forced to put up with constant, seismic-level vibrations right outside their doors for months on end. The homes were not meant to withstand these forces. Their foundations are failing,” Whitaker said.
Owners have reported broken foundation piers, sinking floors, cracked interior and exterior walls, and doors and windows that no longer operate due to building movement. Second-story floors shudder and buckle in response to relentless pounding of pile drivers. Three-story tall cement silos have been placed directly in front of other homes, bellowing unknown chemicals, Whitaker said. “The noise is indescribable,” he continued. “It is so loud that the construction workers are required to wear ear protection, but nothing is being done to protect the residents. The noise and house-shaking vibrations last all day long, from early morning. The residents have no place to escape the constant intrusion on their daily lives.” Efforts to seek relief from SWB have been unsuccessful, necessitating the filing of this lawsuit. As an independent juridical agency, SWB is subject to suit. Additional residents and businesses who have been similarly damaged are expected to join the suit. Additional damages sought include emotional distress, reduced property values and loss of income. For more information visit noladrainageproject.com.