State of Louisiana, Coastal Protection and Restoration Authority Versus Ernest Henry Amann, Tirza Mastainich Burghoffer, Scott A. Mastainich, Daron M. Mastainich, and Succession of Erna Amann Theriot

STATE OF LOUISIANA, COASTAL NO. 23-C-593
PROTECTION AND RESTORATION
AUTHORITY FIFTH CIRCUIT

VERSUS COURT OF APPEAL

ERNEST HENRY AMANN, ET AL STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE FORTIETH
JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 80,829, DIVISION "A"
HONORABLE VERCELL FIFFIE, JUDGE PRESIDING

December 27, 2023

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Stephen J. Windhorst,
John J. Molaison, Jr., and Scott U. Schlegel

ORDER VACATED; REMANDED
SJW
JJM
SUS

COUNSEL FOR PLAINTIFF/RELATOR,
STATE OF LOUISIANA, COASTAL PROTECTION AND RESTORATION
AUTHORITY
James L. Bradford, III
D. Stephen Brouillette, Jr.
Jamie P. Gomez
David A. Peterson
J. Ryan Vivian

COUNSEL FOR DEFENDANT/RESPONDENT,
HON. VERCELL FIFFIE
Vercell Fiffie
Goldie Rainey
Eliana Defrancesch

WINDHORST, J.

Petitioner, State of Louisiana, Coastal Protection and Restoration Authority

(“CPRA”) seeks review of the trial court’s sua sponte November 21, 2023 order

setting this matter for trial on January 3, 2024. For the following reasons, we vacate

the trial court’s sua sponte November 21, 2023 order and remand this matter for

further proceedings.

PROCEDURAL HISTORY and FACTS

CPRA filed a petition for expropriation seeking to expropriate various

properties held by landowners in St. John the Baptist Parish as part of the Maurepas

Swamp Project. CPRA filed an ex parte motion for execution of the order of

expropriate, six weeks after filing the expropriation petitions explaining the trial

court’s mandatory obligation to issue the order of expropriation pursuant to La. R.S.

19:144.

Because the trial court failed to issue an order of expropriation, CPRA filed a

writ of mandamus with this court. On November 8, 2023, CPRA applied for, and

this court granted, a writ of mandamus for the limited purpose of ordering the trial

court to take action on CPRA’s petition for expropriation by 4:00 P.M. on November

9, 2023, by either issuing the order of expropriation or, if it found any deficiencies

in the petition or other valid grounds for denial of the order of expropriation, to

provide written reasons stating the grounds for the denial. State of Louisiana,

Coastal Protection and Restoration Authority v. Amann, 23-516 (La. App. 5 Cir.

11/08/23)(unpublished writ disposition). The trial court requested an extension of

time to respond and was given until 4:00 P.M. on November 13, 2023 to take action

on CPRA’s petition.

On November 12, 2023, the trial court, citing La. R.S. 38:354 and La. R.S.

38:351, concluded that “the expropriation as prayed for does not comply with the

mandatory language of the statute, and the expropriation does not meet the

23-C-593 1

requirements mandating a denial of the request to take private property.”

Accordingly, the trial court denied CPRA’s order of expropriation. CPRA filed a

notice of intent to seek supervisory review from this court, which was signed by the

trial court on November 20, 2023, with a return date of December 12, 2023.

As these events were ongoing, on November 21, 2023 (the day after granting

CPRA’s notice of intent to seek supervisory review of the expropriation denial), the

trial court signed a sua sponte order setting this case for trial on the merits at 9:30

A.M. on January 3, 2024. This trial order was executed while the writ application

was pending and the petition for expropriation had been denied and was therefore

no longer pending. Service on the order was withheld by the court.

On December 4, 2023, this court vacated the trial court’s November 12, 2023

order denying expropriation and ordered the trial court to enter an order of

expropriation before December 8, 2023. State of Louisiana, Coastal Protection and

Restoration Authority v. Amann, 23-547 (La. App. 5 Cir. 12/04/23)(unpublished

writ disposition).

The trial court granted the order of expropriation on December 8, 2023. The

trial court sua sponte amended the order of expropriation submitted by CPRA,

ordering that “All previously set hearing dates are to be maintained,” an apparent

reference to the November 21, 2023 sua sponte order setting the case for trial on the

merits prior to service of notice, and other required procedures.

On December 5, 2023, the trial court’s order setting the matter for trial was

issued to all parties. On December 12, 2023, the Clerk of Court prepared the

necessary citations to the landowners, which included the notice of expropriation,

the petition for expropriation, the order of expropriation and the receipt for service.

The citations were to landowners in Louisiana and in other states. As of the filing

of the writ application, CPRA contends that no returns have been placed in the record

of this proceeding.

23-C-593 2

LAW and ANALYSIS

The CPRA challenges the trial court’s November 21, 2023 sua sponte order

setting this matter for trial. CPRA contends that the trial court’s sua sponte

November 21, 2023 order setting this proceeding for trial on January 3, 2024 is

reversible legal error because it violates the quick-take expropriation procedures set

forth in La. R.S. 19:141, et seq., denies CPRA’s right to a jury trial, and violates the

defendant landowners’ right to due process. We agree.

CPRA also contends that the trial date is for a bench trial and not a jury trial,

which CPRA previously requested, if a trial is necessary. To the extent the order set

the matter for a bench trial, the trial court erred in setting the matter as a bench trial

when CPRA clearly and properly requested a jury trial as to the issue of just

compensation. La. R.S. 19:154; La. R.S. 19:4.

Initially, we find that the November 21, 2023 order setting the trial for January

3, 2023 was improperly ordered after the trial court denied the order of expropriation.

At the time the order was signed, the matter was clearly not in a procedural posture

to set for trial for several reasons. The trial court set the matter for trial at a time

when the petition had been denied and was no longer pending, and before the parties

have been served with the order of expropriation as required by La. R.S. 19:146.

Further, the parties have not appeared or filed an answer to the petition for

expropriation, and consequently, no party has challenged either the public purpose

for the taking or the amount of just compensation. The twenty days in which to do

so as provided in La. R.S. 19:147 clearly has not elapsed, even since the December

12, 2023 issuance of citations and petitions. Thus, the requirements set forth in La.

R.S. 19:147 and La. R.S. 19:151 have been disregarded.

According to the quick-take procedures in La. R.S. 19:141, et seq., the

landowners are not required to answer the petition; instead, they may withdraw the

amount of just compensation deposited into the registry of the court and not oppose

23-C-593 3

either the taking or the just compensation. La. R.S. 19:149. Furthermore, the trial

court improperly held the order setting the matter for trial for two weeks after it was

signed without issuing the order to the parties.

We also find that the trial court’s sua sponte order prematurely setting a trial

date violates the quick-take procedures set forth in La. R.S. 19:141, et seq. and the

landowners right to due process under the law, and therefore, the trial court erred in

ordering the trial to be set on January 3, 2024. La. R.S. 19:151 requires an answer

to be filed prior to the setting of a trial date. In the instant case, the trial court erred

by setting the matter for trial without permitting the landowners to be served and to

file responsive pleadings. Any judgment obtained in violation of the quick-take

procedures as stated herein would result in the judgment being null and void.

DECREE

Accordingly, for the above stated reasons, we grant CPRA’s writ application,

vacate the trial court’s sua sponte November 21, 2023 order, and remand this matter

for further proceedings.

ORDER VACATED; REMANDED

23-C-593 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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 JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-C-593
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE VERCELL FIFFIE (DISTRICT JUDGE)
D. STEPHEN BROUILLETTE, JR. (RELATOR) JAMES L. BRADFORD, III (RELATOR) VERCELL FIFFIE (RESPONDENT)

MAILED
DAVID A. PETERSON (RELATOR) JAMIE P. GOMEZ (RELATOR) ELIANA DEFRANCESCH (RESPONDENT)
J. RYAN VIVIAN (RELATOR) ATTORNEY AT LAW 40TH JUDICIAL DISTRICT COURT
ATTORNEYS AT LAW 227 HIGHWAY 21 2393 HIGHWAY 18, SUITE 100
150 TERRACE AVENUE MADISONVILLE, LA 70447 EDGARD, LA 70049
BATON ROUGE, LA 70802

GOLDIE RAINEY (RESPONDENT)
40TH JUDICIAL DISTRICT COURT,
DIVISION A
2393 HIGHWAY 18, SUITE 100
EDGARD, LA 70049