Magee v. W. Jefferson Levee Dist.

• Decision Date: 13 December 2017
• Docket Number: NO. 17–CA–294,17–CA–294
• Citation: 235 So.3d 1230
• Parties: Angela D., Wife of/and Mark L. MAGEE v. WEST JEFFERSON LEVEE DISTRICT and Southeast Louisiana Flood Protection Authority–West
• Court: Court of Appeal of Louisiana — District of US

235 So.3d 1230

Angela D., Wife of/and Mark L. MAGEE
v.
WEST JEFFERSON LEVEE DISTRICT and Southeast Louisiana Flood Protection Authority–West

NO. 17–CA–294

Court of Appeal of Louisiana, Fifth Circuit.

December 13, 2017

COUNSEL FOR PLAINTIFF/APPELLANT, ANGELA D. WIFE OF/AND MARK L. MAGEE, Jordan N. Teich, Randolph J. Waits

COUNSEL FOR DEFENDANT/APPELLEE, WEST JEFFERSON LEVEE DISTRICT AND SOUTHEAST LOUISIANA FLOOD PROTECTION AUTHORITY–WEST, Kenneth E. Pickering, W. Patrick Baker

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg

CHEHARDY, C.J.

Plaintiffs, Angela and Mark Magee, appeal the 24th Judicial District Court's judgment of January 17, 2017 awarding plaintiffs supplemental compensation for the appropriation of their property by defendant, the West Jefferson Levee District. The plaintiffs also appeal the district court's March 6, 2017 judgment awarding attorneys' fees. For the reasons that follow, we amend in part and affirm as amended the court's January 17, 2017 judgment, and affirm the court's March 6, 2017 judgment.

FACTUAL AND PROCEDURAL HISTORY

In 1998, plaintiffs purchased a tract of property on Walker Road in Belle Chasse, Louisiana. The approximate 6–acre property fronts on the Hero Canal and is protected by an earthen levee. At the time of the purchase, the property was encumbered by a levee servitude, as well as railroad and utility servitudes.

In 2000, a levee-heightening project commenced along the Hero Canal that affected plaintiffs' property. Plaintiffs granted Plaquemines Parish a servitude over their property for the project. In addition to cash consideration for this servitude, a gravel road that was built over the levee for the project was to be left in place after its completion for plaintiffs' use.

After the levee heightening was completed, plaintiffs began construction of their "dream home" in 2004. The custom-built approximate 4,000–square-foot raised home was constructed out of concrete and steel to withstand hurricane force winds—indeed, it survived Hurricane Katrina. The house included an approximate 3,000–square-foot wraparound covered porch and other select features, such as double-insulated windows, a custom kitchen, and an elevator. The first floor was fourteen feet above the concrete slab. On the slab level was covered parking space and an enclosed workshop out of which Mr. Magee performed marine construction and repairs. Plaintiffs also constructed a dock on the Hero Canal that was accessed by the gravel road and where Mr. Magee moored

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his boat. The house was completed and certified for occupancy on June 15, 2005.

Almost four years later, in a letter dated February 6, 2009, plaintiffs learned of another impending levee enhancement project. In that letter, the West Jefferson Levee District ("the Levee District") advised plaintiffs that a variety of surveys, assessments, and tests would be performed on or around their property in connection with the U.S. Army Corps of Engineers West Bank and Vicinity Hurricane Protection Project. Subsequently, in a letter dated December 22, 2009, plaintiffs were advised that "[s]hould a portion of your property be required for the construction of this levee upgrade, and should you be displaced by the project, you may be eligible for Relocation Assistance Benefits."

Then, in a letter dated January 27, 2010, plaintiffs were notified that a portion of their property had been appropriated for the project. This letter advised:

[O]n January 25, 2010, the Board of Commissioners for the Southeast Louisiana Flood Protection Authority–West, convened in a Regular Monthly Meeting, for and on behalf of the West Jefferson Levee District, appropriated land owned by Mr. Mark L. and Mrs. Angela D. Magee, determined by the U.S. Army Corps of Engineers to be necessary for construction of the Hero Canal Reach One, Second Lift Levee Enlargement, West Bank and Vicinity Hurricane Protection Project.

Attached to this letter was a copy of the appropriation resolution as well as surveys and maps. The resolution specified by reference to the attached maps that a certain portion of the land would be subject to a permanent servitude and another portion would be subject to a temporary servitude. The temporary servitude would be effective for three years "or until completion of construction, whichever occurs later." However, about nine months later, in a letter dated October 6, 2010, the Levee District advised plaintiffs that pursuant to the U.S. Army Corps of Engineers' determination that the three-year temporary servitude was no longer necessary, the Board of Commissioners for the Southeast Louisiana Flood

Protection Authority–West convened on September 28, 2010 and terminated the temporary servitude.

Thereafter, the property was appraised by five experts to determine its market value before and after the appropriation for purposes of calculating the just compensation owed to plaintiffs. The experts explained there are three methods to assess market value: the income approach, the cost approach, and the comparable approach. The income approach is utilized in scenarios where the property generates income, typically in the form of rents. None of the experts found the income approach applicable and so none of the five appraisals utilized it in this case. The cost approach is generally defined as the estimated replacement cost of the property less depreciation plus land value as if it were vacant. And, in the comparable approach, the subject property is compared to the most recent, similar, and proximate market sales. The Louisiana Supreme Court has recognized, in the expropriation context, that "[t]he jurisprudence has generally held that the 'market approach,' or the use of comparable sales in the vicinity of the land sought to be expropriated, is the primary tool of analysis of fair market value because it is, in most cases, likely to produce more accurate results." Exxon Pipeline Co. v. Hill , 00-2535 (La. 5/15/01), 788 So.2d 1154, 1163.

Henry W. Tatje, III was retained by the Levee District to appraise the property in 2010. He exclusively employed the comparable approach in his appraisal. Utilizing January 25, 2010 as the effective date, he

235 So.3d 1235

estimated the value of the property before the appropriation at $595,000 and the value after at $102,000. Accounting for the loss of value from the terminated three-year temporary servitude at $4,800, Mr. Tatje concluded the just compensation owed to plaintiffs was $497,800.

Wayne Sandoz was also retained by the Levee District to appraise the property in 2010. Though he performed both the cost approach analysis and the comparable approach analysis, Mr. Sandoz explained that he gave "almost exclusive weight" to the comparable approach in his appraisal of the property. Utilizing January 25, 2010 as the effective date, he estimated the value of the property before at $545,000, the value after at $98,700, and the value of the terminated three-year temporary servitude at $2,700.¹ Mr. Sandoz concluded the just compensation owed to plaintiffs was $446,300.

Richard Murphy was retained by the Louisiana Property Acquisition Company, LLC ("LaPAC")² to appraise the property in 2010. Similar to Mr. Sandoz, though Mr. Murphy performed both the cost approach analysis and the comparable approach analysis, he gave "full weight" to the comparable approach in his appraisal of the property. Utilizing January 25, 2010 as the effective date, he estimated the value of the property before at $644,745, the value after at $105,528, and the value of the terminated three-year temporary servitude at $3,237.³ Mr. Murphy concluded the just compensation owed to plaintiffs was $539,217.

Byron Keith Core was retained by the Louisiana Office of Coastal Protection and Restoration Authority to appraise the property in 2010. He employed both the cost approach and the comparable approach in his appraisal. Utilizing January 25, 2010 as the effective date, he estimated the value of the property before at $720,000 and the value after at $139,688. Accounting for the loss of value from the terminated three-year temporary servitude at $3,660, Mr. Tatje concluded the just compensation owed to plaintiffs was $583,972.

Mr. Core's appraisal was adopted as the official appraisal of the property, and in a letter dated February 11, 2011, LaPAC advised plaintiffs that the just compensation due them was $583,972. Enclosed in the letter was a check from the Louisiana Department of the Treasury dated February 11, 2011 in the amount of $583,372 and a check from LaPAC dated February 11, 2011 in the amount of $600, made payable to plaintiffs.⁴ This letter further advised plaintiffs: "[W]e ask that you please sign the Check Receipts acknowledging receipt of the referenced checks and return them to us in the self addressed postage paid envelope. Execution of these receipts will not impair your right to contest the amount of just compensation."

235 So.3d 1236

On April 18, 2011, plaintiffs executed a Statement of Abandonment, in which they "disclaim[ed], waive[d] and abandon[ed] any and all right, title and interest in and to any and all personal property, located or about street address 719 Walker Road, Belle Chasse, Louisiana[.]" Plaintiffs' home was demolished sometime in May of 2011. On December 12, 2011, plaintiffs filed suit, contesting the amount of just compensation.

As the litigation progressed, plaintiffs retained expert Dr. Wade Ragas to appraise the property in 2014. He employed both the cost approach and the comparable approach in his appraisal. Utilizing April 18, 2011 as the effective date, he estimated the value of the property before at $1,325,000 and the value after at $149,600. Accounting for the loss of value from the terminated three-year temporary servitude at $4,109, Dr. Ragas concluded the just compensation owed to plaintiffs was $1,179,509.

Plaintiffs accordingly amended their petition seeking $595,537 (the difference...