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Olivier Plantation, L.L.C. v. Parish of St. Bernard

Court of Appeals of Louisiana, Fourth Circuit

October 30, 2014


APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT. NO. 109-272, DIVISION " B" . Honorable Manuel A. Fernandez, Judge.

Robert E. Couhig, Jr., Jason A. Cavignac, Gary J. Rouse, COUHIG PARTNERS, L.L.C., New Orleans, LA, COUNSEL FOR PLAINTIFFS/APPELLEES.

William M. McGoey, Corey S. Grant, Attorneys at Law, Chalmette, LA; Thomas P. Anzelmo, Sr., Hilliard F. Kelly, III, Lou A. Milliman, McCRANIE SISTRUNK ANZELMO HARDY McDANIEL & WELCH, LLC, New Orleans, LA, COUNSEL FOR DEFENDANTS/APPELLANTS.

James D. (" Buddy" ) Caldwell, David A. Peterson, Daniel D. Henry, Jr., Ryan M. Seidemann, LOUISIANA DEPARTMENT OF JUSTICE, Baton Rouge, LA, AMICUS CURIAE/STATE OF LOUISIANA.

(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins). JENKINS, J., DISSENTS AND ASSIGNS REASONS.


Rosemary Ledet Judge.

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[2013-0497 La.App. 4 Cir. 1] This is a commandeering case arising out of Hurricane Katrina. On May 18, 2007, Olivier Plantation, L.L.C.; Park Investments, Ltd.; and Morning Park, Inc. (collectively " Olivier" ) commenced this suit against St. Bernard Parish (" St. Bernard" ) and the Lake Borgne Basin Levee District (" LBBLD" ) seeking just compensation under the Louisiana Constitution. Olivier alleged that St. Bernard and LBBLD commandeered its property, removing an unknown quantity of borrow material from its property, and caused damages through their access and construction activities on its property. Following a trial based upon joint stipulations and deposition testimony, the trial court rendered judgment in favor of Olivier and against St. Bernard and the LBBLD. The trial court found that Olivier was the owner of the borrow material and that it was entitled to be compensated for the taking of the borrow material at the rate of $5.00 per cubic yard as well as attorney's fees. From this judgment, St. Bernard and the LBBLD appeal. For the reasons that follow, we affirm.


The factual and procedural background of this case was summarized by the federal court in Olivier Plantation, LLC v. St. Bernard Parish, 744 F.Supp.2d 575, 577-79 (E.D. La. 2010) (" Olivier I " ), as follows:

This case arises out of alleged damage to private properties caused by the actions of local and federal government entities while making emergency repairs to a levee damaged by Hurricane Katrina. This levee, the Lake Pontchartrain and Vicinity Hurricane Protection Levee (the " Levee" ), located in St. Bernard Parish, Louisiana, was originally erected during the construction of the Mississippi River Gulf Outlet (" MRGO" ), which was Congressionally authorized by the River and Harbor Act in 1956 and completed in 1968. On June 18, 1967 and April 15, 1970, Defendant Lake Borgne Basin Levee District (" LBBLD" ) issued resolutions appropriating property necessary to create the Levee adjacent to the MRGO. The federal government, in concert with state authorities, obtained rights over the land upon which the Levee was built. On November 20, 1979, the LBBLD adopted a resolution whereby it appropriated borrow areas to construct the Levee. Plaintiffs are the owners of certain property that abuts the Levee.
In August 2005, Hurricane Katrina caused damage to the Levee. Shortly thereafter, Defendant St. Bernard Parish (" St. Bernard" ) signed an Executive Order invoking its emergency powers under the Louisiana Homeland Security and Emergency Assistance and Disaster Act, La. Rev. Stat. 29:721, et seq. Pursuant to these powers, on September

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29, 2005, St. Bernard signed an Order entitled " Commandeering Property and Granting Irrevocable Right of Entry for Borrow, Access, and Construction (Repair and Rehabilitation) of the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Levee, St. Bernard Parish (hereinafter " Commandeering Order" )." Pursuant to the Commandeering Order, St. Bernard commandeered the use of certain private property within the parish near and on the west side of the Mississippi River Gulf Outlet and adjacent to and west of the Levee. The Commandeering Order permitted this property to " be used to obtain borrow materials, gain access, and construct (repair and rehabilitate)" the Levee. The Order also granted St. Bernard " an assignable right and easement to clear, borrow, excavate and remove soil, dirt, and other materials" from the properties. The private property subject to the Commandeering Order lies within and is a part of the properties belonging to Plaintiffs.
Additionally, the Commandeering Order granted LBBLD an irrevocable right of entry to the private properties for its use in [2013-0497 La.App. 4 Cir. 3] obtaining borrow, access and construction of the Levee repairs and rehabilitation. On September 30, 2005, LBBLD issued an " Authorization for Entry for Borrow, Access, and Construction (Repair and Rehabilitation)," certifying that it had acquired real property interests in the Plaintiffs' properties pursuant to the Commandeering Order and authorizing " the Department of the Army, its agents, employees, and contractors to enter upon these lands to obtain borrow, access, and construct (repair and rehabilitate) said levee as set forth in the plans and specifications ... (" Authorization" )."
On October 2, 2005, St. Bernard and LBBLD (collectively referred to as the " Defendants" ) entered into a " Cooperation Agreement" with the United States of America, represented by Third-Party Defendant, United States Army Corps of Engineers (" USACE" ). On October 17, 2005, these parties entered into the " Amended Cooperation Agreement." (Amended Cooperation Agreement). Both Agreements designate St. Bernard and LBBLD as " Public Sponsors" obligated to provide to USACE " right of entry to all lands, easements, and rights-of-way, including suitable borrow and dredged or evacuated material disposal areas" as may be determined necessary by the USACE. USACE thereafter entered the properties and borrowed, excavated and removed soil, dirt, and other materials from the Plaintiffs' properties, to repair the Levee.
The Authorization provides that private landowners of the commandeered property " shall be identified and compensated by LBBLD in accordance with Louisiana State" law via agreement or settlement within twelve (12) months of the use of the property or otherwise LBBLD would file appropriate judicial proceedings. The Amended Cooperation Agreement provides that USACE " shall identify and pay just compensation to the owners" of the commandeered property.
In 2006, Plaintiffs were identified as owners of the properties from which soil, dirt, and other materials were removed pursuant to the Commandeering Order and the Authorization. They were not provided compensation for the removal or damage to their properties, nor were judicial proceedings filed on their behalf. As a result, Plaintiffs filed suit on May 18, 2007, in the 34th Judicial District Court for the Parish of St. Bernard,

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Louisiana, against Defendants St. Bernard and LBBLD. Plaintiffs allege they suffered damages, caused by the actions of the Defendants, due to the removal of borrow material from their properties, the improper disposal of debris, the abandonment of equipment, the spillage of oil and other liquids, and other acts. Plaintiffs seek just compensation for the damage to their properties pursuant to Louisiana Constitution Article I, Section 4.
Subsequently, on May 8, 2009, St. Bernard moved for leave to file an Amended Answer and Third Party Demand, seeking to name [2013-0497 La.App. 4 Cir. 4] USACE as a third-party defendant on the basis that USACE may be liable for Plaintiffs' alleged damages and is indispensable for a just adjudication. The motion was granted, and on May 18, 2009, St. Bernard filed its Amended Answer and Third Party Demand alleging it is entitled to contribution from USACE pursuant to the Cooperation Agreement for any sums awarded Plaintiffs. Then, on May 19, 2009, USACE filed a Notice of Removal to this Court pursuant to 28 U.S.C. § § 1441(a), 1441(b), 1442(a)(1), 2679(d)(3).

Id. (citations to record omitted). Based on the unique circumstances presented in this case of no one court having jurisdiction to hear both claims simultaneously, the federal court in Olivier I granted Olivier's motion to sever its claim from St. Bernard's third-party demand and remanded Olivier's Louisiana state law takings claims against St. Bernard and the LBBLD. Olivier I, 744 F.Supp.2d at 589-90.

Following the remand, this matter was ultimately submitted for trial on the merits upon joint stipulations and deposition testimony. On March 12, 2012, the trial court rendered judgment in favor of Olivier and against St. Bernard and the LBBLD, finding them liable, jointly and in solido, for any damage and loss caused by the inverse condemnation of Olivier's property. The trial court awarded damages for the value of borrow material removed from Olivier's property in the principal amount of $2,045,430.00 together with interest from the date of judicial demand.[1] The trial court further made a separate award for attorney's fees in an amount to be set after a contradictory hearing on the issue. On March 20, 2012, [2013-0497 La.App. 4 Cir. 5] the trial court granted the motion to amend judgment " to solely correct a typographical error" by changing the principal amount awarded to $2,449,930.00.[2]

Thereafter, the parties waived a contradictory hearing on the attorney's fees issue and submitted the matter on written argument. In support of its claim for attorney's fees, Olivier introduced the deposition testimony of an expert, Fred Herman; [3] a copy of its contract with its

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attorneys, the letter of engagement; [4] and a chart of the hours worked by its attorneys.[5] On November 9, 2012, the trial court rendered judgment awarding a total of $832,318.65 for costs and attorney's fees. The total amount of that award for attorney's fees was $808,476.90. This appeal followed.


The issues presented in this case are virtually identical to those presented by the same appellants-defendants--St. Bernard and the LBBLD--in Borgnemouth Realty Co. v. Parish of St. Bernard, 13-1651 (La.App. 4 Cir. 5/21/14), 141 So.3d 891, writs denied, 14-1285 (La. 9/26/14), 149 So.3d 266, 2014 WL 5013274, and 14-1351 (La. 9/26/14), 149 So.3d 269, 2014 WL 5013471. We find our holding [2013-0497 La.App. 4 Cir. 6] in the Borgnemouth case dispositive of all the issues in this case with one exception.[6] The exception is the issue of attorney's fees, which we find requires an independent analysis.

In this case, the trial court awarded Olivier attorney's fees in the amount of $808,476.90, which was 33% of the principal amount of the judgment.[7] St. Bernard and the LBBLD contend that the attorney's fee award was unreasonably excessive. As we noted in Borgnemouth, " [w]e review these [attorney's fee award] claims under an abuse-of-discretion standard and decline to modify such awards on appeal unless that standard is met." 13-1651 at p. 17, 141 So.3d at 902 (citing Covington v. McNeese State Univ., 12-2182, p. 6 (La. 5/7/13), 118 So.3d 343, 348). As we further noted in Borgnemouth, " the prevailing party may not recover attorney's fees except where authorized by contract or statute." Id. (citing Rivet v. State, Dept. of Transp. and Dev., 96-0145, p. 10 (La.9/5/96), 680 So.2d 1154, 1160). As we still further noted in Borgnemouth, the

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governing statute providing for attorney's fees in this inverse condemnation case is La. R.S. 13:5111, which provides:

[2013-0497 La.App. 4 Cir. 7] A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding.

La. R.S. 13:5111 A. Hence, the attorney's fee award to Olivier was statutorily-mandated. The sole issue presented is whether the quantum of attorney's fees awarded is reasonable.

In making the determination of whether the quantum of attorney's fees awarded is reasonable, the following principles apply:

Attorney's fees should be awarded on a case-by-case basis after examining numerous factors. Covington, 12-2182, p. 6, 118 So.3d at 348. The Louisiana Supreme Court has set out factors to be considered by a court in determining the reasonableness of an award of attorney's fees: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court's own knowledge. See State, Dept. of Transp. and Dev. v. Williamson, 597 So.2d 439, 442 (La. 1992). A court may consider a contingency contract as well, but is not bound by such an agreement in determining reasonable attorney's fees. See Rivet v. State, Dept. of Transp. & Dev., 01-0961, p. 6 (La.11/28/01), 800 So.2d 777, 782.

Borgnemouth, 13-1651 at pp. 17-18, 141 So.3d at 903.[8]

In support of their contention that the attorney's fee award was unreasonably excessive, St. Bernard and the LBBLD make the following three arguments. First, they contend that the fee should be based on the discounted hourly rate actually charged and paid by Olivier under the blended contingency fee agreement. Second, [2013-0497 La.App. 4 Cir. 8] they contend that the levee taking statute, La. R.S. 38:387 E, which caps attorney's fees recoverable at 25% of the principal amount awarded, should be applied.[9] Third, they argue, based on the

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factors enumerated in the jurisprudence and other fact-specific cases applying those factors, that the attorney's fee award in this case is unreasonably excessive. We ...

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