Lafayette City-Parish Consolidated Government v. James L. Clause and Connie Guillory Clause

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-273 consolidated with 24-274, 24-275, 24-276, 24-277

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT

VERSUS

JAMES L. CLAUSE AND CONNIE GUILLORY CLAUSE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2022-6477 C/W 2023-0326,
2023-0413, 2023-0414, 2023-0898
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Charles G. Fitzgerald,
Judges.

MOTIONS FOR LEAVE OF COURT TO FILE
AMICUS CURIAE BRIEFS GRANTED.
JUDGMENT AFFIRMED.

Lawrence E. Marino
Paige Casselman Beyt
Oats & Marino
100 E. Vermilion Street, Suite 400
Lafayette, LA 70501
(337) 233-1100
COUNSEL FOR PLAINTIFF/APPELLANT:
Lafayette City-Parish ConsolidatedGovernment

Gary McGoffin
John S. Cook
Durio, McGoffin, Stagg & Guidry
220 Heymann Boulevard
Lafayette, La 70503
(337) 233-0300
COUNSEL FOR DEFENDANTS/APPELLEES:
James L. Clause
Connie Guillory Clause

Patrick M. Wartelle
Leake & Anderson, L.L.P.
600 Jefferson Street, Suite 600
Lafayette, LA 70501
(337) 233-7430
COUNSEL FOR AMICUS CURIAE:
Louisiana Energy and Power Authority

Sean D. Moore
Brett P. Fenasci
Entergy Services
639 Loyola Avenue, 26th Floor
New Orleans, LA 70113
(504) 576-7048
COUNSEL FOR AMICUS CURIAE:
Entergy Louisiana, LLC
Entergy New Orleans, LLC

GREMILLION, Judge.

In this expropriation case, consolidated with cases involving the neighbors of the

defendants/appellees, James L. and Connie Guillory Clause, the Lafayette City-Parish

Consolidated Government (LCP) appeals the award of severance damages and attorney

fees and seeks repayment of damages and fees in excess of what this court finds

appropriate.

Further, Entergy Louisiana, LLC, Entergy New Orleans, LLC (collectively,

“Entergy”) and the Louisiana Energy and Power Authority (the Authority) have each

sought permission to file amicus curiae briefs.

For the reasons that follow, we grant the motions to file amicus curiae briefs and

affirm the judgment of the trial court.

FACTS

Defendants own property on Butcher Switch Road in Lafayette Parish. LCP was

attempting to upgrade its electrical service in the area. LCP offered the Clauses

$2,522.00. This offer was rejected. LCP sued to acquire the utility servitude across the

street side of defendants’ property, and that of their neighbors on Butcher Switch Road,

to replace existing wood poles with galvanized steel poles.

The matter proceeded to trial on August 30, 2023.

LCP’s Chief Electrical Engineer, Hunter Boudreaux, testified that the new 75-

foot-tall, 21.6-inch diameter, galvanized steel poles will replace the existing 43.8-foot-

tall wooden poles, which are 14.49 inches in diameter. These sturdier poles are

necessitated by the installation of a new electrical substation north of Interstate 10 and

east of Interstate 49, an area that has never had a substation.

The lines along Butcher Switch Road have never included transmission lines

(lines that send power from one substation to another), only distribution lines (lines that

service electrical customers). The distribution lines would be placed at their current

height and the transmission lines above those. All lines will be placed on the road side

of the poles to minimize the depth of the servitude. Boudreaux testified that in his

experience, galvanized steel poles detract from the surrounding scenery less than

wooden poles because the galvanized steel blends into the sky and background better.

According to Boudreaux, the National Electrical Safety Code determines what

clearances, vertical and horizontal, must be given for distribution and transmission lines.

LCP’s proposed lines would mandate between thirteen and fifteen feet of clearance,

which is why it sought the fifteen feet of servitude.

LCP currently has an existing roadway servitude extending thirty-five feet from

the centerline of East Butcher Switch. The existing poles are located at the edge of that

servitude. While the lines will extend over defendants’ property because they overhang

an existing servitude in favor of LCP, the defendants are not compensated for those

lines.

Although a utility servitude in favor of the Southwest Louisiana Electrical

Membership Corporation (SLEMCO) existed across the property, its dimensions were

never established; therefore, LCP sought a fifteen-foot-deep servitude. At some point

the Lafayette Utility System “purchased” many of SLEMCO’s customers. The exact

location of that servitude, in fact, was not established and currently is not known.

According to Bradford Habetz Millett, a Professional Land Surveyor hired by LCP to

perform a route survey on the proposed servitude, she did not attempt to establish the

location of that servitude. The 1958 act that created the servitude did not specify its

depth. The property is also encumbered by a 1982 servitude in favor of South Central

Bell Telephone Company (Bell). That servitude is ten feet deep and “parallel and

adjacent to the North right of way line of Butcher Switch Road for a distance ± 200

feet.”

To establish the value of the taking, LCP called Michael Cope, a licensed real

estate appraiser who has performed at least 3,500 appraisals in his career, including

approximately 1,600 servitude appraisals. Cope is a recognized specialist in right of

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way appraisal by the International Right of Way Association. The trial court accepted

him as an expert in general appraisal.

Cope testified that he valued the property pre-taking, a value of the parcel being

taken, and the after-taking value. To arrive at these values, Cope employed a sales

comparison analysis to compare the area of the servitude and compare it to vacant land

that had been sold in the area in the thirty months before the taking. Cope found four

comparable sales in that period. Those properties sold for between $1.11 and $2.51 per

square foot. The property closest to defendants’ home was one block away and sold for

$1.60 per square foot. Cope opined that defendants’ land was worth $2.22 per square

foot.

Cope did not adjust his valuation to factor the SLEMCO servitude that already

encumbered the property, but he did the Bell servitude. Cope also performed a sales

comparison analysis of the defendants’ home. The Clauses’ home “is finished out to a

higher level, both quality of materials to quality of craftsmanship and workmanship. . .

[M]ost of the houses in and along East Butcher Switch Road and in the subdivision

right behind it, they are just not quite at the same level of overall quality as the Clause

house[.]” Cope’s market analysis, then, compared homes further afield. Cope valued

the home and land at $365,325.00.

To adjust for the after-taking value, Cope compared sales of vacant lots in the

area that were encumbered by servitudes with those that were unencumbered. He

opined that the taken parcel was devalued by eighty percent, giving a value of $2,522.00.

Cope opined that there was no after-taking difference in the value of the untaken

portion of defendants’ property; in other words, there were no severance damages. In

fact, Cope argued that “there is no severance damage to the remainder from the

acquisition of transmission line servitudes.” That is, no severance damages occur

unless the analysis indicates that the property has sustained “100-percent impact[.]”

Severance damages, then, can almost never result from transmission line servitudes.

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To bolster this opinion, Cope also performed a sales comparison analysis of

Lafayette-area homes with transmission lines similar to those proposed by LCP. All of

the properties he included in this analysis were “very similar to the subject property.”

Cope also surveyed the listing and selling agents that participated in the transaction to

verify that the transactions were all arm’s-length sales. These agents indicated that they

never even considered the existence of the poles and servitudes in pricing the homes.

The buyers were also aware of the poles and servitudes. This investigation led Cope to

conclude that the existence of the poles and lines were inconsequential to the pricing of

the homes.

Cope also received engineering data from the utility services in the Lafayette area.

This data showed that Lafayette residential areas are crisscrossed with 69-kilovolt lines

like those proposed on East Butcher Switch Road.

Cope performed an analysis the day before trial. His opinions had not changed

as a result.

Defendants cross-examined Cope with regard to his training as an appraiser.

Cope’s father, Gene Cope (Gene), was formative in Cope’s training. To the best of

Cope’s knowledge, Gene never found severance damages in a transmission line case.

Cope himself has found severance damages in a transmission line case when the line

crossed the encumbered property in a way that rendered the remaining property

unworthy of development: “It wasn’t from the actual pole and the line. It was basically

because the physical footprint of the site had been altered by the location of the line on

the property and it’s [sic] route of travel.”

Cope disagreed with the proposition that people only purchase homes near

transmission lines because they cannot afford other lots. In fact, his father’s home sat

beneath a 230-kilovolt line on an H-frame tower. That home was about 4,500 square

feet and had an in-ground pool.

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Defendants offered two witnesses: Jim Keaty, a Lafayette realtor, and Caroline

Landry, an appraiser.

Mr. Keaty owns a realty company that employs about seventy realtors. His firm

has been involved in approximately 6,000 transactions. Eighty percent of those

transactions involve residential properties. Keaty was contacted by Landry, who

solicited his opinion about the impact on marketability of a home located near “high-

powered lines[.]” Based on his experience, Keaty opined that those homes located near

high-powered lines are less marketable. While Keaty could not quantify the impact on

marketability, he offered that, “there is no one that’s ever asked us, ‘I’d like to be near

a power line.’” Keaty testified that of the 6,000 or so transactions, he could recall two

in which the presence of power lines made the properties harder to sell.

Landry testified that the present case was her first appraisal of an overhead utility

servitude. She valued the land pre-taking, valued the parcel being taken, and valued

the remaining property post-taking. She appraised the value of the servitude at

$3,751.83. She performed a sales comparison appraisal to arrive at this figure.

In determining whether the defendants sustained severance damages, Landry

conducted extensive research in publications and national market studies that reviewed

thousands of transactions. Landry’s research was confined to severance damages from

overhead power lines. Landry opined that nationwide studies were relevant to the

Lafayette housing market, “because there is a nationwide pattern of response to how

the market responds to overhead power lines and how it affects property values.” There

is insufficient data in the Lafayette market to allow a paired data comparison. In other

words, Landry

could find no paired data that showed the effect on market value of a
property that did not have these types of structures and then sold
immediately following having similar structures in front of the home to
derive of what the effect on these types of structures would be, on market
value. The data wasn't available.

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Therefore, Landry reviewed over thirty market surveys and conducted market

interviews to arrive at an opinion on severance damages.

The first step in determining severance damages was to value the homes

traditionally. Then Landry ascertained what she believed the percentage of impact of

the given lines would be on the homes. Landry opined that the home would lose twenty-

five percent of its value as a result of the LCP servitude.

In the context of the present case, the proposed poles are being installed

“particularly close to the homes” and “immediately in front of the homes.” The larger

poles impact the esthetics of the homes. The existing poles are what one would expect

in an older development; the larger poles are not.

Landry criticized Cope’s analysis. She opined that Cope failed to isolate the

variable of overhead power lines. According to Landry, Cope failed to account for

disparities between the properties he included in his analysis. None of the properties in

Cope’s analysis “looked alike.” “[A]ll of the examples he provided featured utility

poles that had probably been there for 60-plus years.” Other disparities distinguished

the homes Cope considered from the defendants’ property.

Landry opined that the Clauses’ home experienced severance damages of

$120,000.00.

On cross-examination, LCP extensively questioned Landry about the sources

upon which her opinions were based. A 2019 peer-reviewed article in The Appraisal

Journal, “High-Voltage Transmission Lines and Residential Property Values in New

England: What has been Learned,” by Dr. James A. Chalmers, describes the

methodology whereby an appraiser can identify the “small set of properties . . . for

which there is a significant probability of an adverse sale price effect” due to proximity

to the right-of-way, visibility of the structures, and the type of encumbrance.

“Properties Near Power Lines and Valuation Issues: Condemnation or Inverse

Condemnation?” by David R. Bolton, published by the Southwest Legal Foundation in

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the 1993 Proceedings of the Institute on Planning, Zoning and Eminent Domain, argued

that proximity to power lines does not differ from proximity “to a landfill, a junkyard,

or a haunted house.” Attorneys should advocate for defendants in takings to receive

damages due to loss of market value. Landry conceded that none of the articles address

markets in Louisiana.

Following evidence and argument, the trial court took the matter under

advisement. On September 25, 2023, the trial court issued reasons for judgment. The

court found it “unconscionable” that LCP did not factor severance damages. Further,

the trial court found that it defied common sense to conclude that increasing the

servitude and installing taller and thicker poles would not impact the value of

defendants’ property:

In the case before the court, the poles will be eight stories high. They
will also be wider than the current poles. The proposed placements of
these lines will be in the front of the houses. They will be closer to the
Defendant’s [sic] houses and driveways. They will be more of an
obstruction to the front facade. It appears to the court one pole may be
placed on the inside of the standing landowner[’]s fence. The court finds
that the transmission lines will interfere with the landowners[’] aesthetic
beauty and serenity of their property. It is common sense that will affect
the pool of potential buyers and lower the market value of their home.

The trial court found Landry to be a more credible witness than Cope:

[H]er opinion is more in line with reason and common sense and based on
an objective study. She opines that the installment of utility poles that are
33% larger and 72% greater in height than the existing poles is unappealing
to most market participants. Defendant’s [sic] appraiser estimates
severance damages of 25% of the total market value of each Defendant’s
home.

The trial court awarded defendants $123,751.83. Judgment was signed on

November 27, 2023. That judgment also assessed attorney and expert witness fees of

$73,254.90. This appeal followed.

ASSIGNMENTS OF ERROR

The Trial Court’s award of severance damages was manifestly erroneous
because the Trial Court relied on “common sense” instead of — and
contrary to — the competent evidence introduced at trial, in basing the
award on Defendants’ appraiser’s unsupported opinion.

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A. Landry’s opinion of severance damages is not based on actual
evidence or sound reason, and therefore cannot support the Trial
Court’s award.

B. Cope’s opinion of severance damages was based on actual
current market evidence in Lafayette, and further shows that
Landry’s opinion is unworthy of belief.

If this Court reverses the severance damage award, then the attorney and
expert fee award is excessive and should be reduced.

If this Court reverses the severance damage award or reduces the fee
awards, this Court should order Defendants to repay their respective
portions of the excess payment to LCG.

DISCUSSION

Amicus Curiae Briefs

Uniform Rules, Courts of Appeal, Rule 2—12.11 provides:

Amicus curiae briefs may be filed only upon motion by the applicant
and order of the court. The motion shall identify the interest of the
applicant, state that the applicant has read the briefs of the parties, and state
specific reasons why the applicant's brief would be helpful to the court in
deciding the case. Amicus curiae may not request oral argument.

Entergy and the Authority have set forth sufficient grounds for filing amicus

curiae briefs. They and their constituents could potentially be impacted by the decision

of this court. Each attacks the methodology employed by Landry in the assessment of

severance damages. Therefore, we grant their motions to file amicus curiae briefs.

On the Merits

A person’s property is subject to expropriation by the State of its political

subdivisions only for public purposes and upon payment of just compensation to the

owner. La.Const. art. 1, § 4. Just compensation means that the owner is “compensated

to the full extent of his loss.” La.Const. art. 1, § 4(B)(5). “Except as otherwise provided

in this Constitution, the full extent of loss shall include, but not be limited to, the

appraised value of the property and all costs of relocation, inconvenience, and any other

damages actually incurred by the owner because of the expropriation.” Id. Severance

damages represent the diminution in market value of the remaining property caused by

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the taking. Trunkline Gas Co. v. Verzwyvelt, 196 So.2d 58 (La.App. 3 Cir.), writ refused,

250 La. 738, 199 So.2d 180 (1967).

A court of appeal’s review of a trial court’s determination that damages from a

taking are owed and the amount thereof is limited to the manifest error standard. State,

Dep’t of Transp. & Dev. v. Knoll & Dufour Lands, LLC, 13-399 (La.App. 3 Cir.

10/23/13), 158 So.3d 1. The issue to be resolved by a reviewing court is not whether

the trier of fact was right or wrong, but whether the factfinder’s conclusion was a

reasonable one. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880

(La.1993). We are admonished that “[i]f the trial court or jury’s findings are reasonable

in light of the record reviewed in its entirety, the court of appeal may not reverse, even

if convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

“[W]here there are two permissible views of the evidence, the factfinder’s
choice between them cannot be manifestly erroneous.

...

Nonetheless, where documents or objective evidence so contradict
a witness’s story, or the story itself is so internally inconsistent or
implausible on its face that a reasonable factfinder would not credit the
witness’s story, a reviewing court may well find manifest error. Where
such factors are not present, however, and a factfinder’s determination is
based on its decision to credit the testimony of one of two or more
witnesses, that finding can virtually never be manifestly erroneous or
clearly wrong.

S.J. v. Lafayette Par. Sch. Bd., 09-2195, p. 13 (La. 7/6/10), 41 So.3d 1119, 1127–28

(citations omitted). This rule applies to the testimony of experts: “Credibility

determinations, including the evaluation of and resolution of conflicts in expert

testimony, are factual issues to be resolved by the trier of fact, which should not be

disturbed on appeal in the absence of manifest error.” Lasyone v. Kansas City S. R.R.,

00-2628, p. 13 (La. 4/3/01), 786 So.2d 682, 693. Deference is not owed the trial court’s

credibility assessment when “the stated reasons of the expert are patently unsound.” Id.

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This appeal centers on the conflicting testimonies of Cope and Landry. The trial

court chose to credit Landry’s testimony over Cope’s. LCP argues that Landry cherry-

picked articles that agreed with her position, and many of the references in the articles

she relied upon found no impact from the presence of utility lines. This LCP argues,

indicates that the defendants “failed to present competent evidence to support [Landry’s]

opinion.”

On the other hand, the alternative expert testimony presented by LCP discounted

the possibility of a property sustaining severance damages except when it has been 100%

impacted by the servitude. The trial court found this testimony incredible. The trial

court assigned reasons explaining why it chose to discount Cope’s testimony.

After reviewing the entirety of the record, we are not convinced that Landry’s

stated reasons are patently unsound. As outlined above, Landry undertook a thorough

investigation into the impact on market value of utility lines. The trial court had one

expert testifying that severance damages will virtually never result from the installation

of eight-story utility poles almost two feet in diameter and another testifying that this

type of taking can result in severance damages. The trial court’s determination cannot

be found manifestly erroneous.

DISPOSITION

The judgment of the trial court is affirmed. All costs of this proceeding, totaling

$11,173.53, are taxed to the Lafayette City-Parish Consolidated Government.

MOTIONS FOR LEAVE OF COURT TO FILE AMICUS CURIAE
BRIEFS GRANTED. JUDGMENT AFFIRMED.

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