Board of Commissioners for the Pontchatrain Levee District Versus Nature Land Co., LLC ( 2021 )

BOARD OF COMMISSIONERS FOR THE NO. 21-C-717 PONTCHATRAIN LEVEE DISTRICT FIFTH CIRCUIT VERSUS COURT OF APPEAL NATURE LAND CO., LLC STATE OF LOUISIANA December 20, 2021 Susan Buchholz First Deputy Clerk IN RE BOARD OF COMMISSIONERS FOR THE PONTCHATRAIN LEVEE DISTRICT APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE VERCELL FIFFIE, DIVISION "A", NUMBER 77,291 Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg WRIT GRANTED In its writ application, plaintiff, Board of Commissioners for the Pontchartrain Levee District (the “Board), seeks review of the trial court’s denial of its request to issue an order of expropriation following its filing of a petition for expropriation of immovable property in accordance with La. R.S. 38:351, et. seq.1 For reasons stated more fully below, we grant the Board’s writ application and remand to the trial court to enter an order of expropriation in accordance with La. R.S. 38:354. On November 5, 2021, the Board filed a Petition for Expropriation pursuant to La. R.S. 38:351, et. seq., seeking to expropriate land owned by defendant Nature Land Co., LLC (“Nature Land”) for levee purposes. Instead of entering an order of expropriation in accordance with La. R.S. 38:354, the trial court issued an order setting the matter for a hearing on whether the matter should be consolidated with a prior proceeding filed by Nature Land. The Board then filed an ex parte motion asking the trial court to execute the order of expropriation, which the trial court denied on November 24, 2021, stating that the record did not contain evidence that 1 La. R.S. 38:351 permits the expropriation of property needed for levee purposes prior to judgment as follows: Notwithstanding any other law to the contrary, and in addition to the methods and procedures for acquisition or utilization of servitudes for levee and related purposes by levee districts and levee and drainage districts, whenever any levee district or levee and drainage district cannot appropriate or amicably acquire immovable property needed for levee purposes, including but not limited to flooding and hurricane protection purposes, or integrated coastal protection projects, the levee district or levee and drainage district may acquire the property by expropriation prior to judgment in accordance with the provisions of this Part. The method of expropriation provided by this Part shall be authorized for corporeal property and servitudes and for both riparian and nonriparian property. the Board attempted to negotiate or reach an agreement on the compensation it would pay for the immovable property subject to expropriation. La. R.S. 38:354 provides that once a party presents a petition for expropriation for levee purposes, the trial court shall issue an order of expropriation as follows: Upon presentation of the petition, the court shall issue an order directing that the amount of the estimate be deposited in the registry of the court and declaring that the property described in the petition has been expropriated for levee purposes at the time of the deposit. [Emphasis added.] Furthermore, the Board’s petition attached copies of letters it forwarded to Nature Land with its offer to purchase the property at issue and the Board alleged that it received no response to the letters from Nature Land. La. R.S. 38:352, which sets forth the requirements for the petition of expropriation, does not require evidence of negotiations to be included in the petition: The rights of expropriation of property granted by this Part shall be exercised in the following manner: (1) A petition shall be filed by the governing authority of the levee district or levee and drainage district in the district court of the parish in which the property to be expropriated is situated. Where the property to be expropriated extends into two or more parishes and the owner of the property resides in one of them, the petition shall be filed in the district court of the parish where the owner resides, but if the owner does not reside in any one of the parishes into which the property extends, the petition may be filed in any one of the parishes. In all such cases, the court wherein the petition is filed shall have jurisdiction to adjudicate as to all the property involved. (2) The petition shall contain a statement of the purpose for which the property is to be expropriated describing the property necessary therefor and the reasons for the necessity, with a plan of the same, a description of the improvements thereon, if any, and the name of the owner, if known. (3) The petition shall have annexed thereto the following: (a) A certified copy of a resolution adopted by the governing authority of the levee district or levee and drainage district, with the concurrence of not less than two-thirds of a quorum, declaring that the expropriation is necessary or useful for the purposes of this Part. (b) An itemized statement of the amount of money estimated to be the full extent of the owner's loss for the expropriation or the damage, or both, as the case may be. It shall be signed by those who made the estimate, showing the capacity in which they acted and the date on which it was made. After careful review of the applicable law, as well as arguments and exhibits provided by the parties with their briefs, we find that the trial court erred by failing to execute an ex parte order of expropriation in accordance with La. R.S. 38:354. Accordingly, we grant the writ application filed by the Board of Commissioners for the Pontchartrain Levee District and remand to the trial court to enter an order of expropriation in accordance with La. R.S. 38:354 prior to December 23, 2021. Gretna, Louisiana, this 20th day of December, 2021. HJL FHW MEJ SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 12/20/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: 21-C-717 E-NOTIFIED 40th District Court (Clerk) Honorable Vercell Fiffie (DISTRICT JUDGE) Gordon D. Bush (Respondent) James L. Bradford, III (Relator) D. Stephen Brouillette, Jr. (Relator) MAILED Dwight D. Poirrier (Relator) Katherine M. Kliebert (Respondent) Attorney at Law Attorney at Law 1420 South Burnside Avenue Kliebert Law, PLLC Gonzales, LA 70737 1300 Baxter Street Suite 153 Charlotte, NC 28204