S. Lafourche Levee Dist. v. Jarreau

• Decision Date: 30 March 2016
• Docket Number: No. 2015 CA 0328.,2015 CA 0328.
• Citation: 192 So.3d 214
• Parties: SOUTH LAFOURCHE LEVEE DISTRICT v. Chad M. JARREAU.
• Court: Court of Appeal of Louisiana — District of US

192 So.3d 214

SOUTH LAFOURCHE LEVEE DISTRICT

v.Chad M. JARREAU.

No. 2015 CA 0328.

Court of Appeal of Louisiana, First Circuit.

March 30, 2016.

Loulan J. Pitre, Jr., Aimee Williams Hebert, Jane A. Jackson, New Orleans, LA, and Bryce Autin, Cut Off, LA, for Plaintiff–Appellant, South Lafourche Levee District.

Randall A. Smith, L. Tiffany Hawkins, Mary Nell Bennett, New Orleans, LA, for Defendants–Appellees, Chad M. Jarreau and Bayou Construction & Trucking, L.L.C.

Before GUIDRY, PETTIGREW, HIGGINBOTHAM, CRAIN, and DRAKE, JJ.

HIGGINBOTHAM, J.

The issue to be resolved in this case is the amount of compensation due to a Louisiana landowner and business when a portion of property, including soil from beneath the surface of the property, is effectively appropriated pursuant to a permanent levee servitude for the purpose of constructing, operating, and maintaining a levee for a hurricane protection project. The issue involves a res nova application of the limiting effects, if any, of the 2006 constitutional amendments to La. Const. art. VI, § 42, and La. Const. art. I, § 4, purportedly conforming Louisiana takings law with federal law when property is taken for levee and hurricane protection purposes.

FACTS AND PROCEDURAL HISTORY

The parties do not dispute that on January 10, 2011, the Board of Commissioners of the South Lafourche Levee District (“Levee District”) adopted Resolution 11–01 (the “Resolution”), appropriating a permanent levee servitude affecting certain tracts of land located on the west bank of Bayou Lafourche, which the Levee District had determined was an area that was susceptible to storm surge and flooding events. The purpose of the appropriation was to upgrade and increase the size of the existing permanent levee servitude for flood protection in the Larose to Golden Meadow, Louisiana, Hurricane Protection Project area. The Resolution gave the Levee District the right to “construct, operate and maintain levees, berms, drainage or borrow canals or ditches and other flood control works including the right to cut away, dredge or remove spoil or earth therefrom and for the deposit of same as may be necessary[.]”

Landowners that were affected by the appropriation of the permanent servitude were notified by letter dated the same date that the Levee District passed the Resolution. In the letter, the landowners were advised that the Levee District would soon begin the process of “removing earthen material” from the appropriated property and demanded that all landowners “immediately cease and desist performing any and all activities upon the property appropriated.” The letter further explained that, as required by state law, the Levee District would pay each affected landowner the fair market value for the appropriated property, as soon as that amount was determined.

One of the landowners to receive the Levee District's letter was Chad M. Jarreau, from Cutoff, Louisiana. Mr. Jarreau owns a 17.1 acre tract of land (Tract 288, hereafter referred to as the “Jarreau tract”) that was located partially within the Levee District's permanent servitude that had been appropriated pursuant to the Resolution. Mr. Jarreau and his wife live in a residence near Highway 3235 at the front portion of the Jarreau tract. He operates a dirt excavation and hauling business known as Bayou Construction & Trucking Co., L.L.C. (“Bayou Construction”) over the remainder of the Jarreau tract, which backs up to an industrial water canal. Only the rear portion of the Jarreau tract, adjacent to the canal and measuring slightly under one acre at .913 acres, was within the Levee District's appropriated permanent servitude.

It is undisputed that in order to fulfill contract obligations for Bayou Construction, Mr. Jarreau excavated dirt from the appropriated area both before and after he received the Levee District's letter. It is also undisputed that when the Levee District tendered a check totaling $1,326.69 for the appropriated Jarreau tract, Mr. Jarreau and his wife rejected the offer. Because Mr. Jarreau did not cease his excavating activities on the appropriated land, the Levee District filed a petition on May 19, 2011, seeking to enjoin Mr. Jarreau from further excavation or removal of dirt from the appropriated permanent servitude on the Jarreau tract. The Levee District also sought monetary damages for Mr. Jarreau's “wrongful” excavation. Mr. Jarreau answered the lawsuit and filed a reconventional demand against the Levee District, seeking just compensation for the full extent of his loss of the Jarreau tract that had been taken by the Levee District. While Mr. Jarreau never disputed the Levee District's authority to appropriate the Jarreau tract, he specifically sought compensation for severance damages, economic/business losses, general damages for mental anguish, loss of use, inconvenience, and loss of enjoyment, costs, and statutory attorney fees. Bayou Construction intervened in the lawsuit, joining in Mr. Jarreau's reconventional demand against the Levee District.¹

The trial court signed an order on June 27, 2011, issuing a preliminary injunction that prohibited Mr. Jarreau from further removal of dirt on the appropriated levee servitude across the Jarreau tract.² On September 9 and 10, 2014, a bench trial was held on the merits of the Levee District's main demand for damages, as well as Mr. Jarreau and Bayou Construction's reconventional demand for just compensation and damages. Several expert witnesses testified regarding the value of the Jarreau tract and the value of the dirt taken from the Jarreau tract. After the parties submitted post-trial briefs, the trial court rendered judgment on December 1, 2014. As to the main demand, the trial court awarded damages to the Levee District in the amount of $16,956.00 for the dirt that Mr. Jarreau excavated after the Jarreau tract had been appropriated. The trial court awarded Mr. Jarreau $11,869.00 as just compensation for the Jarreau tract taken by the Levee District's permanent levee servitude.³ The trial court further awarded Mr. Jarreau and Bayou Construction $164,705.40 for economic and business losses related to the taken Jarreau tract, along with attorney fees of $43,811.85, expert witness fees, costs, and interest.

The Levee District appealed, maintaining that the trial court erred in concluding that any compensation was owed for appropriation of property needed for a hurricane protection project, citing the 2006 amendments to La. Const. art. I, § 4 (G). Alternatively, the Levee District argues that the trial court erred in failing to apply the current statutory definitions of “fair market value” and “full extent of the loss” pursuant to La. R.S. 38:301 and 38:281(3) and (4), asserting that just compensation does not include economic loss. The Levee District also urges, for the first time in this court, a peremptory exception raising the objection of no cause of action, submitting that the law extends no remedy to Mr. Jarreau or Bayou Construction for the appropriated property. Mr. Jarreau and Bayou Construction answered the Levee District's appeal, seeking reversal of the damage award to the Levee District, as well as an increase in the attorney fees awarded by the trial court and additional attorney fees for this appeal.

PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

Under La.Code Civ. P. art. 2163, an appellate court has the discretion to decide whether to consider a peremptory exception filed for the first time at the appellate level, as long as the exception is pleaded prior to submission of the case for a decision and proof of the ground of the exception appears of record. Furthermore, an appellate court may notice sua sponte, on its own motion, that a party has failed to state a cause of action. La.Code Civ. P. art. 927(B). However, our review of the Levee District's exception of no cause of action filed in this court reveals that it presents the very same question of law as raised on the merits of the Levee District's appeal—i.e., whether the law extends a remedy for compensation when a landowner's property is appropriated pursuant to a permanent levee servitude for the purpose of a hurricane protection project. Because the exception involves the same issue as presented on the merits, it is unnecessary to discuss the exception separately. See Allen v. Shreveport Theatre Corp., 218 La. 1008, 51 So.2d 607, 609 (1951).

STANDARD OF REVIEW

In this action regarding just compensation for appropriated property and for damages, the trial court's factual determinations as to the value of property and entitlement to any type of damages will not be disturbed on review in the absence of manifest error. West Jefferson Levee District v. Coast Quality Const. Corp., 93–1718 (La.5/23/94), 640 So.2d 1258, 1277, cert. denied, 513 U.S. 1083, 115 S.Ct. 736, 130 L.Ed.2d 639. Similarly, where the testimony of experts and witnesses is contradictory and the trial court decides to give more or less weight to the testimony of certain experts and witnesses, the trial court's findings cannot be overturned unless manifest error appears in the record. Id. Opinions of experts regarding valuation are advisory and are used only to assist the trial court in determining the amount of compensation due. The weight to be given to expert testimony is determined by the trier of fact based on the professional qualifications and experience of the expert, the facts and studies upon which the opinion is based, the familiarity with the locality of the property involved, and the possible bias of the witness in favor of the side for whom he testifies. Id. Where the experts disagree as to the value of the land taken, the trial court has much discretion in evaluating and determining the weight to be given to each expert. Id.

Furthermore, those factual findings made by the trial court that do not directly involve the valuation of the property or the credibility of the appraisers are also entitled to deference, in accordance with...