95-845 La.App. 3 Cir. 10/9/96, Louisiana Farms v. Louisiana Dept. of Wildlife and Fisheries

• Citation: 685 So.2d 1086
• Parties: 95-845 La.App. 3 Cir
• Decision Date: 09 October 1996
• Court: Court of Appeal of Louisiana (US)

Page 1086

685 So.2d 1086

95-845 La.App. 3 Cir. 10/9/96

LOUISIANA FARMS a/k/a Bartmess Farms, et al. Plaintiffs-Appellees, v. LOUISIANA DEPARTMENT OF WILDLIFE AND FISHERIES, et al Defendants-Appellants.

No. 95-845.

Court of Appeal of Louisiana, Third Circuit.

Oct. 9, 1996.

Rehearing Denied Jan. 27, 1997.

Writs denied April 4, 1997.

Robert Ray Earle, Farmerville, for Louisiana Farms, a/k/a Bartmess Farms et al.

Kenneth LeVergene Ross, Thomas Jay Seale III, Mark E. Seamster, Russell Weeks Rudolph, Hammond, for Louisiana Department of Wildlife & Fisheries.

Before KNOLL, THIBODEAUX, COOKS, SAUNDERS and AMY, JJ.

[95-845 La.App. 3 Cir. 1] AMY, Judge.

This appeal arises from the Louisiana Department of Wildlife & Fisheries' [DWF] constructive seizure of George Bartmess' alligator/catfish farm in Franklin Parish, Louisiana. The plaintiffs, Louisiana Farms, a/k/a Bartmess Farms, George and Helen Bartmess filed suit against DWF and three of its agents, Clinton Eubanks, Emmett Bonner, and Johnny Ferrington. The plaintiffs alleged the impropriety of the constructive seizure under the United States Constitution, 42 U.S.C. § 1983, the Louisiana Constitution, and La.Civ.Code art. 2315. The trial court found that the seizure was unreasonable and unconstitutional and assessed $4,600,000.00 in compensatory damages and $3,000,000.00 in punitive damages against DWF and its three agents. The trial court held that Agents Eubanks and Ferrington were liable in their official capacity only; whereas, Bonner was found liable in both his individual and official capacity. Additionally, all defendants were cast for attorney's fees under 42 U.S.C.1988(b). Defendants appeal from that judgment. For the following reasons, we (1) reverse the trial court's award of punitive damages and attorney's fees against DWF and its three agents; (2) reverse the trial court's finding of liability for [95-845 La.App. 3 Cir. 2] the compensatory damage awards against Agents Eubanks, Bonner, and Ferrington; (3) reverse the $2,250,000.00 compensatory award for future lost profits on Bartmess' catfish operations; and (4) affirm the trial court's remaining compensatory damage awards of $2,350,000.00 against DWF.

DISCUSSION OF THE RECORD

In 1989, undercover agents for the United States Fish & Wildlife Service [USFWS] began to investigate potential Lacey Act, 16 U.S.C. § 3371-3378, violations arising in the transport of alligators and alligator hides from Texas to Louisiana. Vern "Skip" Stuckman informed agents that Texas hides were being skinned in accordance with Louisiana regulations and imported by an undisclosed Louisiana farmer. Stuckman disclosed characteristics about his customer that enabled federal agents to develop a profile of the suspect. This profile suggested that a north Louisiana alligator farmer who also farmed catfish and conducted operations adjacent to a fish processing plant was the culprit. The federal agents bolstered their profile by obtaining telephone records revealing calls placed to the Bartmess residence from a Texas bar frequented by Stuckman. As a result, George Bartmess became the prime suspect. The USFWS subsequently obtained two federal search warrants, one for the Bartmess residence in Winnsboro, Louisiana, and the other one for the Bartmess alligator/catfish farm near Wisner, Louisiana.

The federal agents then contacted Colonel Winston Vidrine at DWF headquarters in Baton Rouge to request assistance in executing the warrants. Colonel Vidrine agreed and assigned the following DWF agents to assist the federal agents: Emmett Bonner, Clinton Eubanks, and Johnny Ferrington. A joint task force, comprised of federal and state agents, was formed to execute both federal search warrants.

[95-845 La.App. 3 Cir. 3] On the morning of August 10, 1991, the task force split in two. One group, led by federal agent Monroe, proceeded to the Bartmess residence in Winnsboro. DWF agents Emmett Bonner and Clinton Eubanks accompanied this group. The agents searched the Bartmess residence, but made no seizures. DWF agents Bonner and Eubanks then went to Bartmess' alligator/catfish farm. The second group proceeded to the Bartmess farm near Wisner with an intent to recover seven to nine alligator hides that were specially marked by the USFWS and sold to Skip Stuckman at an earlier date. The federal agents identified and seized two of the marked alligator hides and issued Bartmess a citation for the alleged violation of the Lacey Act.

Also, during the search, DWF agents inspected Bartmess' freezers and discovered almost 80 untagged alligator hides and nearly 100 untagged alligator carcasses, an apparent violation of DWF's "Alligator Regulations." Further, DWF agents found that Bartmess had wild deer enclosed in pens without a DWF permit. DWF agent Johnny Ferrington issued Bartmess two citations: (1) possession of alligator hides and carcasses without tags; and (2) possessing wild game quadrupeds without a license.

On the eve of their departure, DWF agents were faced with a problem: DWF was not immediately equipped to store the alligator hides and carcasses seized from Bartmess' farm. At that point, DWF agent Eubanks contacted Don Puckett, an attorney for DWF in Baton Rouge, seeking advice on how to protect the state's interests concerning the hides and other potential violations. Puckett advised Eubanks that DWF agents should constructively seize the entire Bartmess farm operation. Accordingly, DWF agents issued Bartmess a seizure order, which in effect, created a constructive seizure over his farm. Under the terms of this seizure, Bartmess could physically possess his farm, which encompassed about 7,200 [95-845 La.App. 3 Cir. 4] alligators and several ponds of catfish; however, he could not remove anything from his farm. Specifically, the seizure order stated: "All live alligators placed under constructive seizure and nothing will be moved from these premises until notified by La. Dept. Of Wildlife & Fisheries."

On the next day, August 11, 1991, DWF agents returned to the Bartmess farm and confiscated unused alligator tags and business records related to Bartmess' alligator operations. Two days later, on August 13, 1991, DWF agents, again, went to the Bartmess farm to collect the untagged alligator hides and carcasses. These items were transported to the DWF headquarters in Baton Rouge, where they remained at the time of trial.

On August 22, 1991, Bartmess applied for a game breeders license that would have authorized him to pen wild deer on his farm. However, DWF denied this application. Bartmess also had a substantial catfish farm in Catahoula Parish, Louisiana. Bartmess did not own the land on which he conducted this catfish farm; he leased this land from B.E. Quinn & Sons. DWF asserts that this farm was never under the constructive seizure. On the other hand, Bartmess insisted that he believed that his Catahoula farm was also seized. On September 10, 1991, Bartmess made a formal written demand upon DWF to lift its constructive seizure on his farm operations. By a letter dated September 19, 1991, DWF informed Bartmess that the seizure did not affect his catfish operations, but that his alligator farming permit was suspended pending the completion of the federal and state investigations. Bartmess then applied for a permit reauthorizing ¹ his farm in Wisner to receive alligator [95-845 La.App. 3 Cir. 5] hatchlings. But, DWF denied his application. By a letter dated October 9, 1991, DWF informed Bartmess that his alligator license had been revoked. ²

Both DWF citations that were issued to Bartmess on August 10, 1991 were originally set for a hearing on September 25, 1991 in the Fifth Judicial District Court of Franklin Parish. However, all DWF proceedings were held in abeyance pending the conclusion of the USFWS proceedings. Bartmess was eventually acquitted of the federal charges on September 17, 1992 after a jury trial in the United States District Court for the Eastern District of Texas, Beaumont Division. However, the state failed to prosecute Bartmess under the two citations that DWF agents had issued to him, and the time limit for prosecution had expired.

As a result of the constructive seizure, Bartmess could not remove anything from his alligator/catfish farm in Wisner. Prior to the DWF seizure, Bartmess had exchanged catfish for feed with his supplier, Wisner Minnow Hatchery, Inc. But, DWF's seizure order temporarily put an end to this arrangement because Bartmess could not remove catfish from his ponds and deliver them to his supplier in exchange for feed for his farming operations. Bartmess' catfish began to lose weight. The record substantiates that Bartmess' catfish lost a total of 250,000 pounds and that such a loss should be valued at forty-six cents per pound, resulting in a $115,000.00 loss to Bartmess.

Additionally, Bartmess began to experience problems with his alligator herd. Because Bartmess could not remove anything from his farm, the alligators' growth exceeded the space allotted to them in their heated, controlled environment. The [95-845 La.App. 3 Cir. 6] alligators began to fight among themselves, which increased their stress level. Finally, diseases began to develop in the alligators which resulted in a deterioration of their skin quality.

Because of the seizure, Bartmess began to suffer extreme financial problems. As a result, in April 1992, Bartmess was given permission by DWF to liquidate his 7,200 alligator herd. DWF also agreed to lift its constructive seizure once the sale of his alligators was final. In June 1992, Bartmess sold his herd for $300,000.00 to Robert Ferrington. The record substantiates that a reasonable value of Bartmess' alligator herd, at the time of sale, was $520,000.00. However, despite this sale, Bartmess' financial condition steadily declined and, in August 1993, Bartmess filed for bankruptcy.

On November 8, 1991, Bartmess and his wife, Helen, filed suit against DWF, and...