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

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