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Richard Grant [and
other Class Action Plaintiffs], Individually and on Behalf of All Others
Similarly Situated |
NO.: DIVISION: 22ND
JUDICIAL DISTRICT COURT PARISH OF STATE OF |
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Versus |
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SUN CONSTRUCTION, L.L.C.,
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FILED:__________________________ |
_____________________________ DEPUTY CLERK |
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CLASS ACTION PETITION FOR DAMAGES
The petition of RICHARD GRANT [AND OTHER CLASS ACTION
PLAINTIFFS], all persons of the full age of majority and all residents and domiciliaries of St. Tammany Parish,
Plaintiffs bring this action in negligence, strict liability, and nuisance under Louisiana Civil Code Articles 2315, 2316, 2317, 2317.1, 2322 and 669, and invoke the doctrine of res ipsa loquitur because of the drainage problems enumerated hereinafter.
PARTIES
1.
Made defendants herein are:
A) SUN
CONSTRUCTION, L.L.C. (“Sun”), a limited liability
company organized under the laws of the State of
B) SUNRISE CONSTRUCTION AND DEVELOPMENT, LLC (“Sunrise”), a limited liability company organized under the laws of Louisiana doing business in the Parish of St. Tammany, State of Louisiana; Sunrise Construction and Development is the successor to Sunrise Homes and Sunrise Construction;
C) PENN MILL LAKES, L.L.C. (“Penn Mill”), a limited liability company organized under the laws of Louisiana doing business in the Parish of St. Tammany, State of Louisiana; and
D) COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEER-ING CORPORATION (“Cooper”), a Louisiana corporation licensed and doing business in the Parish of St. Tammany, State of Louisiana.
2.
The plaintiffs are all homeowners in the Penn Mill Lakes Subdivision
(“the subdivision”), located in St. Tammany Parish,
STATEMENT
3.
4.
Sun Construction, L.L.C. was the general
contractor/builder on the construction of the subdivision and was responsible
for the design and construction and installation of portions of the drainage
system that included the drainage pipes, drain lines, sewers, retention ponds,
drainage ditches, culverts, driveways and front yards of the plaintiffs’
properties and other offsite improvements.
5.
Cooper Engineering, Inc., a Professional Engineering Corporation, at all
relevant times herein was responsible for the Drainage, Paving, Sewer and Water
Profile and Detail Plans for Penn Mill Lakes Subdivision, St. Tammany Parish,
Louisiana, which it completed and filed in the official records of the Clerk of
Court for St. Tammany Parish, Louisiana.
6.
The drainage system utilized throughout the subdivision includes a system
of swales, catch basins, drainage pipes, drainage lines, culverts, drainage
ditches, sewers, and retention ponds.
7.
Large portions of the drainage system, including the retention ponds,
ditches/swales, culverts, catch basins, and other offsite improvements are
common areas and are under the exclusive control of the subdivision.
8.
The drainage system throughout the subdivision is defective in design and
also defective as constructed and installed.
9.
Inadequacies and defects in the design, construction, and installation of
drainage system components include, but are not limited to the following:
a. The
drainage system is improperly graded and improperly designed so that water does
not drain at a fast enough rate from the subdivision to prevent foreseeable
flooding;
b. Many
of the drainage pipes and drain lines were not properly installed and were not
properly fitted together and sealed, so that there are leaks in various lines;
c. The
water retention ponds were improperly designed and placed at points in the
subdivision which resulted in inadequate drainage;
d. The
drainage ditches were improperly designed and improperly constructed, so that
water does not drain properly;
e. Some
drainage ditches are essentially nonexistent, being little more than a two-inch
wide by one-inch deep trench, so that water does not drain properly through
them;
f. The
drainage system improperly incorporates many of the plaintiffs’ driveways, and
the water flow and/or standing water blocks ingress and egress from many of the
subdivision properties;
g. Culverts
were improperly installed and/or were omitted in many places where culverts
were necessary for proper drainage;
h. The
catch basins which capture and divert surface waters into the retention
ponds are improperly placed and/or insufficient in number to keep the driveway
aprons from flooding or holding water impeding the sole access in and out of
the residences;
i. The
sewers were improperly designed and installed and do not allow for the free
flow of water causing periodic unsanitary backups;
j. The
drainage for homes that were constructed in later phases is even more
inadequate than that of the earlier phases and has aggravated an already
overburdened system;
k. Some
of the streets, e.g.,
10.
As additional lots have been
prepared and sold, the drainage has become more inadequate with more obvious
and substantial problems. Earlier issues have become more substantial and have
been transformed, in many cases, from a nuisance to a serious problem.
Moreover, notice of serious and pervasive drainage problems and flooding were
discovered for the first time for many class members on account of wet weather
during the summer of 2007.
11.
On account of the
increasingly adverse impact of runoff from recently sold lots on drainage
problems in the subdivision, the location and configuration of the new phases,
and the failure of defendants to modify the poor drainage design and
installation, plaintiffs are informed and believe and therefore allege that the
drainage for the additional phases under construction will have a further
adverse impact on the drainage for the existing homes, including those of
plaintiffs and of other members of the class and will substantially damage
them.
12.
Despite notice of these inadequacies and defects, written acknowledgment
of drainage inadequacies and defects, and appointments to repair said defects,
the defendants have failed and refused to complete all of the requested repairs
and/or have made many repairs improperly. Defendants have failed to alleviate
the flooding of plaintiffs’ driveways during inclement conditions so that many
plaintiffs must park in the street, wade to their home, and cannot use the
provided driveways to access and egress their garages because of standing water
which routinely collects between their homes and the street due to poor
drainage. Many plaintiffs must wade through water to collect their mail and
access garbage pick-up.
13.
Defendants, Sun Construction, L.L.C., Sunrise
Construction and Development, LLC, Penn Mill Lakes, L.L.C.
and/or Cooper Engineering, a Professional Engineering Corporation, have
breached the contractual and other obligations and warranties due plaintiffs,
have failed to disclose their knowledge of the inadequate and defective
drainage, and have failed to remedy the defective and inadequate drainage
despite knowledge of the consequences on plaintiffs and other present and
future home purchasers.
14.
The lots purchased by the
plaintiffs and the members of the class were undertaken and built for a certain
stipulated price and included labor and material under circumstances in which
the drainage problems are causing them to “fall into ruin” on account of
badness of design and/or workmanship and also failure to do the work that was
contracted to be done.
15.
Defendant, Sun Construction, L.L.C., acquired
much of the subject land from defendant,
16.
The design and installation of the drainage system and offsite
improvements are not in compliance with the ST. TAMMANY PARISH CODE OF
ORDINANCES, including CHAPTER 40 of that Code and including ORDINANCE NO. 499, nor, upon information and belief, with the committments
made by defendants in the engineering submissions made to the St. Tammany
Planning Commission and approved thereby.
17.
Cooper Engineering, Inc. is responsible unto plaintiffs under LSA-C.C.
Arts. 2315-2317 and
18.
Cooper knew or should have known that the furnishing of inadequate
drainage plans and specifications to a builder/owner could impair the normal
use of the lots such that third party purchasers, like the plaintiffs, would
suffer damages should they purchase a poorly drained lot which impeded
accessibility.
19.
Additionally, agents of Sun represented to some plaintiffs that Sun, who
was the seller of those properties to the plaintiffs, would furnish culverts
for the purchased properties. Although these representations induced many of
the plaintiffs to purchase the properties, said culverts were not provided, and
the defendants’ false inducements vis-ŕ-vis the drainage system also subjects
them to liability not only to the landowners whose properties are without culverts,
but to all landowners as a result of the adverse impact the absence of culverts
has on the drainage system as a whole.
SPECIFIC PERFORMANCE AND
REPAIR TO DRAINAGE SYSTEM
20.
The flooding of the petitioners’ streets and driveways
during normal or expected rainfall in southeast
21.
Plaintiffs request that the
defendants be compelled to redesign and refit the drainage system in the
subdivision to bring said drainage system into compliance with the Parish Code,
proper design specifications and practices, and the engineering representations
made by the developer defendants so that the flooding in the subdivision may be
alleviated and in order to allow for proper drainage within the subdivision.
INJUNCTIVE RELIEF
22.
Although petitioners and
others similarly situated may be entitled to monetary compensation for their
special and general damages in an amount determined just in the premises by
this Honorable Court on account of present and future damages, petitioners and
others similarly situated continue to suffer irreparable harm and injury from
the effect of the illegal and intentional actions of the defendants that is not
compensable in money, so that the plaintiffs and other persons similarly
situated are entitled to injunctive relief.
23.
As the subdivision,
including present and future phases, is still in
development, defendants continue to design, construct, and install the
components of the drainage system and offsite improvements in a knowingly
inadequate manner, causing additional drainage problems for the existing
residents and for new and potential residents.
24.
Petitioners seek mandatory
and prohibitory permanent injunctions enjoining the defendants from continuing
in the improper design, maintenance, construction, and installation of the
components of the drainage system, including the following:
a. Enjoining
the defendants from incorporating any additional driveways as opposed to
culverts into the drainage system;
b. Enjoining
the defendants from improperly grading the drainage areas within the drainage
system;
c. Enjoining
the defendants from improperly installing drainage lines and drain
pipes;
d. Compelling
the defendants to use only proper components, such as proper culverts, drainage
ditches, and other components in the design, maintenance, construction, and
installation of the drainage system components;
e. Preventing
and prohibiting defendants from paving any further areas that constitute the
natural drains for plaintiffs’ properties and/or which would increase the
runoff and thereby the likelihood of flooding of the properties of plaintiffs
and that of members of the class; and
f. Compelling
the defendants to have the existing and future drainage system components
inspected by court-approved experts prior to any additional work being
performed.
BREACH
OF ACTUAL AND IMPLIED WARRANTIES
25.
Defendants are liable to the
plaintiffs for breaches of warranties both actual and implied for the defects
in the premises.
FRAUD AND CONSPIRACY TO
DEFRAUD
26.
The defendants’ failure to
advise some homeowners that their driveways were components of the
subdivision’s drainage system and were incorporated into the drainage system as
swales amounted to fraud, as that term is defined in the Louisiana Civil Code,
LSA-C.C. art. 1953, et seq.
27.
After many of the plaintiffs
and class members contacted the defendants to inform them of the problems with
the drainage system, the defendants acknowledged the problem and repeatedly promised
to repair both the system and the portions of the system that most immediately
impacted each plaintiff; however, the defendants never made the needed repairs
and their letters to the plaintiffs and class members were false and misleading
and were sent with an intent to defraud the plaintiffs and to discourage the
prompt exercise of their rights.
28.
The plaintiffs allege that
the defendants conspired together to commit this fraud to their mutual
enrichment and to the detriment of all of the plaintiffs and members of the
class.
29.
Plaintiffs and the members
of the class are further entitled to attorney’s fees, pursuant to the
provisions of LSA-C.C. art. 1958.
ACTUAL DAMAGES
30.
Defendants are responsible
to petitioners and other persons similarly situated for the actual damages
caused by their actions in an amount deemed by the Court to be reasonable in
the premises.
31.
The actual damages suffered
by petitioners include, among others to be shown at the trial of the case:
a. Loss
of use of the plaintiffs’ properties during times of flooding caused by the
defective drainage system and offsite improvements;
b. Loss
of value of the plaintiffs’ properties from lack of appreciation and/or
depreciation due to poor drainage;
c. Damages
for loss of enjoyment of the plaintiffs’ properties;
d. Non-pecuniary
losses and emotional distress;
e. Consequential
damage to personal property; and
f. Out
of pocket expenses incurred by the plaintiffs.
CLASS ACTION ALLEGATIONS
32.
Plaintiffs bring this action
on behalf of themselves and all others similarly situated, in accordance with
the Louisiana Code of Civil Procedure Articles 591, et.
seq.
33.
The class is defined as
those individuals who are homeowners in the Penn Mill Lakes Subdivision in St.
Tammany Parish,
34.
The members of the Class are
so numerous that joinder of all members is impracticable. Plaintiffs do not
know the exact number of Class members, but are informed and believe that the
number of members of the Class exceeds several hundred, assuming one to two
homeowners per lot sold in the subdivision.
35.
There are common questions
of law and fact affecting the Class members, including but not limited to:
a. Whether
the acts and/or omissions of the defendants amounted to a breach of warranties
made by the defendants;
b. Whether
the defendants failed to comply with good practices of engineering,
construction and design, as well as the St. Tammany Code in the design,
construction, and installation of the drainage system components;
c. Whether
the defendants committed fraud and intentional delicts
with regard to statements made to the plaintiffs about the drainage system and
offsite components with the full knowledge that said statements where wholly
false and misleading, with the intent to enrich themselves jointly at the
expense of the plaintiffs;
d. Whether
the defendants conspired with each other to defraud the plaintiffs;
e. Whether
the defendants are liable for damages and attorney’s fees under LSA-C.C. art.
1958;
f. Whether
the defendants are liable for actual damages done to members of the class;
g. Whether
the defendants’ actions amount to negligence;
h. Whether
the defendants should be enjoined from continuing their practices;
i. Whether
the defects in the premises, including poor drainage, can be remedied or
improved by further construction at defendants’ expense.
36.
The claims of the representative plaintiffs, all of whom are homeowners
in the subdivision and members of the proposed class, are typical of the claims
of the Class as a whole and plaintiffs have each, and all suffered harm due to
the acts and/or omissions of the defendants.
37.
The representative plaintiffs will fairly and adequately protect the
interests of the Class. The interests of the representative plaintiffs are
consistent with and not antagonistic to the interests of the Class. The named
plaintiffs have retained counsel experienced in the handling and prosecution of
class actions.
38.
The prosecution of separate actions by individual members of the Class
would create the risk that inconsistent or varying adjudications with respect
to individual members of the Class could occur and would substantially impair
or impede the interests of the other members of the Class to protect their
interests.
39.
This Class Action is superior to other available methods for the fair and
efficient adjudication of the controversy between the parties. Plaintiffs are
informed and believe and, upon such information and belief, allege that the
interests of the members of the Class in individually controlling the
prosecution of separate actions is low, in that most Class members would be
unable to individually prosecute any action at all. Plaintiffs are informed and
believe and, upon such information and belief, allege that the amounts at stake
for many individual Class Members may be relatively small and that for most or
all Class members separate suits would be impracticable, and also most members
of the Class would be unable to find competent counsel to represent them.
Plaintiffs are further informed and believe and, upon such information and
belief, allege that it is desirable to consolidate all litigation into one
forum because it will promote judicial efficiency to resolve the common
questions of law and fact in one forum, rather than in multiple courts over
varying periods of time.
40.
Individual litigation also presents a potential for inconsistent and/or
contradictory judgments. By contrast, the Class Action device presents far
fewer management difficulties, allows the hearing of claims that might otherwise
not be addressed because of the relative expense of bringing individual
lawsuits, and provides the benefits of single adjudication, economies of scale,
and comprehensive supervision by a single Court.
41.
As the proposed Class consists entirely of homeowners in the Penn Mill
Lakes Subdivision, nearly all (if not all) Class members also reside in that
same subdivision, such that identifying, locating, and contacting all Class
Members is an achievable goal; furthermore, to the extent that any homeowners
may not live the subdivision, plaintiffs are informed and believe that the
records and files of defendants contain, in computer and/or otherwise readable
format, identifying information for all Class Members, and information
necessary and convenient to locate and identify Class Members, determine their
damages and prosecute this case expeditiously as a Class Action.
WHEREFORE, plaintiffs, individually and on behalf of
all others similarly situated, pray that the defendants, SUN CONSTRUCTION, L.L.C.,
RESPECTFULLY
SUBMITTED:
Le
Gardeur, Ltd.
_____________________________________
Maurice Le Gardeur (#8274)
Phone:
(985) 892-1420
Fax:
(985) 892-1797
Co-Counsel
for the plaintiffs
AND:
______________________________________
ADAM S. LAMBERT (#25134)
Tel.: (504) 433-0289
Fax: (504) 433-0840
Email: LSULawyer@aol.com
URL: http://www.Lambert-Law.com
Co-Counsel for the plaintiffs
AND:
KOERNER LAW FIRM
By: _________________________________
Louis
R. Koerner, Jr.
Louisiana Bar 7817
Telephone: 985-580-0350
Telecopier: 985-580-0980
Cellular: 985-232-7547
e-mail: koerner@koerner-law.com
URL:
http://www.koerner-law.com
Co-Counsel for the
plaintiffs
AND:
________________________________
EMERY NORTON VOORHIES (#13124)
Telephone: (985) 898-0940
Facsimile:
(985) 893-2184
Co-counsel for plaintiffs
PLEASE SERVE with copies of Interrogatories,
Requests for Admission,
and Requests for Production on:
Sun Construction, L.L.C.
through its registered agent for service of process:
David C. Loeb
through its registered agent for service of process:
David C. Loeb
through its registered agent for service of process:
David C. Loeb
Cooper Engineering, Inc, A
Professional Engineering Corporation
through its registered agent for service of process:
Leroy J. Cooper