Appendix — Bayou des Familles Development Corp. v. West Jefferson Levee District

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“94 900 NOV 1 01994

NO.

oN i

In the |

Supreme Court of the United States

OCTOBER TERM, 1994

BAYOU DES FAMILLES

DEVELOPMENT CORPORATION,

COAST QUALITY CONSTRUCTION CORPORATION,

and BETTY JANE PERRIN, WIFE OF/AND

RONALD J. ISAAC,

Petitioners

V.

WEST JEFFERSON LEVEE DISTRICT,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF LOUISIANA

APPENDIX VOLUME II

Appendix B-F

David C. Loeb

Counsel of Record

Harold E. Molaison

Daniel E. Zelenka, II

Jack E. Morris

Molaison, Price & Loeb, L.L.P.

230 Huey P. Long Avenue

Gretna, Louisiana 70053

Telephone: (504) 366-4336

Telecopy: (504) 368-6531

Counsel for Petitioners

ATO ANE SO ES COTTIER <i Ne toe acs aR Ate ieee:

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 wv

Th

A-114

APPENDIX B

WEST JEFFERSON LEVEE DISTRICT

v.

COAST QUALITY CONSTRUCTION CORP.

WEST JEFFERSON LEVEE DISTRICT

Vv.

BAYOU DES FAMILLES

DEVELOPMENT CORP.

WEST JEFFERSON LEVEE DISTRICT

v.

Betty Jane Perrin, Wife of/and

Ronald J. ISAAC.

Nos. 92-CA-506 to 92-CA-508.

Court of Appeal of Louisiana,

Fifth Circuit.

May 25, 1993.

Levee district brought expropriation suits against

landowners respecting levee construction. Landowners fil-

ed reconventional demands for additional compensation,

severance damages and damages for delay in expropriating

property. The Twenty-Fourth Judical District Court,

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Parish of Jefferson, M. Joseph Tiemann, J., entered judg-

ment for landowners. District appealed. The Court of Ap-

peal, Cannella, J., held that: (1) reconventional demands

stated cause of action against district; (2) three-year

statutory prescription period did not bar demands; and (3)

district could not be held responsible for delay damages

respecting period before district was responsible for levee

construction.

Affirmed in part, amended in part, and affirmed as

amended.

Owen J. Bordelon, Gretna, Harry C. Stumpf, Gretna,

for appellant/plaintiff West Jefferson Levee Dist.

Lawrence E. Chehardy, David C. Loeb, Chehardy,

Sherman, Ellis & Breslin, Metairie, for appellees/defen-

dants Coast Quality Construction Corp. Bayou Des

Familes Development Corp. and Betty Jane Perrin, wife

of/and Ronald J. Isaac.

Harry Rosenberg, U.S. Atty., Nancy Nungesser,

Asst. U.S. Atty., E.D.La., New Orleans, Vicki A. O’Meara,

Acting Asst. Atty. Gen., Anne S. Almy, Edward A. Boling,

Attys.,U.S. Dept. of Justice, Washington, DC, for U.S.

Before GRISBAUM, WICKER and CANNELLA,

JJ.

CANNELLA, JUDGE.

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Plaintiff, West Jefferson Levee District (Levee

District), appeals from three judgments in consolidated ex-

propriation suits filed under the quick taking statutes, La.

R.S. 38:351 et seq. The property involved both federal

jurisdictional wetlands and non-wetlands and was ex-

propriated for the construction of the Jefferson Parish

westbank hurricane protection levee. The expropriation

proceedings were instituted after a lengthy delay, over

twenty years from the recognition of the need for the levee

by the public and the local, state and federal authorities

(1965) and over ten years from the barring by the United

States Corps of Engineers (Corps) of the defendants from

developing the property by denying an after-the-fact per-

mit to build in wetlands areas (1979). We affirm in part,

amend in part and affirm as amended.

The Levee District filed suit against Bayou Des

Families Development Corporation (BDF) on February 15,

1989, against Ronald and Betty Isaac on June 30, 1989,

and against Coast Quality Construction Corporation

(Coast) on July 12, 1989. Pursuant to statute, it deposited

money into the court rezistry that it had concluded was

sufficient to compensate the landowners for the taking, but

not for severance damages. The Levee District deposited

$213,206 for BDF, $24,726 for the Isaacs and $13,058 for

Coast. The deposits were based on property values per acre

ranging for $500 to $550 for wetlands and $23,000 to

$25,000 for non-wetlands. The non-wetlands were a

minimal portion of the deposits.

The landowners filed answers and reconventional

demands for additional amounts of compensation in late

1989. The petitions, amended at various time prior to trial,

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asserted alternate taking dates in 1979 and 1989. They also

demanded severance damages and damages for the delay in

expropriating the property.

The Levee District responded, in May 1991, with ex-

ceptions of no cause of action and prescription directed at

the reconventional demands. The exceptions were denied

by the trial judge on June 10, 1991.

A judge trial was held on six days in September,

19911 to determine the appropriate compensation. After

the trial, the judge rendered judgments in favor of the

three landowners. He awarded BDF $2,849,000 for the

value of the land taken and $14,478,000 for severance

damages. He awarded the Isaacs $975,000 for the value of

the land taken and $1,194,000 for severance damages.

Coast was awarded $1,480,000 for the value of the land

taken and $703,000 for severance damages. In addition,

delay damages were awarded at the rate of 10% per year,

calculated on the value of the various properties from

September 21, 1979, the date the Corps denied the lan-

downers a permit to develop the properties. The delay

damages to BDF totalled $15,642,664, to the Isaacs,

$1,654,145, and to Coast, $1,685,935. In addition, the trial

judge awarded costs and attorneys fees. Pursuant to

La.R.S. 38:387(E), he awarded attorneys fees in the amount

of 25% of the difference between the amount deposited in

the registry of the court and the amounts awarded. Those

amounts were $8,189,114 to BDF, $949,605 to the Isaacs,

and $963,969 to Coast. Under the authority of R.S. 48:455,

the trial judge also awarded interest. This was calculated

1 September 16 through September 20, 1991 and September 28, 1991.

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on the difference between the sums deposited into the

registry of the court and the amounts awarded in the ex-

propriation suits, from the date that title vested in the

Levee District, which is the date the Levee District

deposited the funds into the registry of the court.

FACTS

The facts are basically undisputed. In 1965 it became

apparent that a levee was needed on the westbank of Jeffer-

son Parish to protect large populated areas from hurricane

flooding. The parish, various state and federal agencies, in-

terested individuals and special interest groups began

discussions to determine the location of a locally planned

and financed hurricane protection levee. Studies were in-

stituted. Although the Corps had no permitting powers

over wetlands in June of 1972, it nevertheless recommend-

ed a levee alignment based on those studies.

At a formulation meeting in Gretna, Louisiana, one

month later, the plan was contested by various conserva-

tion and environmental groups, the National Park Service

and the U.S. Department of Interior, because of concerns

ranging from the effect on wildlife, the environment and

the pending feasibility study for a proposed federal water

park to be located in the area. The water or wetlands park

was to be part of a federal Louisiana park system called the

Jean Lafitte National Park.

At this time, the economy was booming and the

population of the westbank was growing. Everyone involv-

ed recognized that the levee alignment would determine the

growth boundaries of the westbank because no develop-

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ment could occur on the unprotected side of the levee since

it would be subject to flooding. It also became apparent

that the levee would serve as a boundary for the proposed

park.

BDF purchased the properties at issue here in

August, 1972 in order to construct low-to-moderate income

housing communities. Immediately after purchasing the

land, BDF sold three parcels of approximately 101 acres

each to the Isaacs, to Coast and to a third purchaser who

is not a party here.

BDF was formed by several individuals with a wide

range of experience and success in these types of construc-

tion projects. The company was set-up as a “land bank’”’,

from which each investor could draw certain acres at one

time in order to build their individual residential

developments. BDF purchased the land based on informa-

tion that there was aneed for low-to-moderate income hous-

ing in the area and that there were no legal obstacles to

overcome in order to develop those communities in this

area of the parish. When it purchased the property, BDF

was aware of the levee studies and the possibility of a water

park. However, in June, 1972 the Corps had preliminarily

suggested a levee alignment which would protect and

enclose the BDF, Coast and Isaac properties. There were

no state or federal regulations requiring permits to develop

wetlands at that time and the Parish was in favor of the

BDF project.

After pourchesing the land, BDF began to imple

ment construction of the basic improvements. It hired an

engineering firm to design a hurricane protection levee

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along the June 7th, 1972 alignment recommended by the

Corps, a sewerage treatment plant and a portable water

line. VTN Corporation was hired to develop the Master

Plan for the entire development. The plan was completed in

February, 1973. Construction of the improvements, intend-

ed to service the Coast and Isaac parcels as well, commenc-

ed. Except for the levee, those improvements were alli

donated to the parish.

In the meantime, from 1972 onward, Congress began

passing a series of amendments to the Federal Water Pollu-

tion Control Act and the rivers and Harbors Appropriation

Act which gave the Corps regulatory power over the

discharge of pollutants into navigable waters. The regula-

tions required a permit to dredge or fill navigable waters

and that term eventually included wetlands.2 The required

permit from the Corps to fill and/or dredge a wetland area

became known as a ‘‘§ 404 permit”, after the pertinent sec-

tion of the Clean Water Act, and which is now found in 33

U.S.C. § 1344.

In addition to the § 404 permit, under § 10 of the

River and Harbors Appropriation Act of 1899, a permit for

works on or affecting navigable waterways of the

2 The amendments of 1972 and 1977 to the Federal Water Pollution Con-

trol Act became known as the Clean Water Act. The Clean Water Act

is found in 33 U.S.C. § 1251 et seq.

The pertinent regulatory provisions are found in 33 CFR § 320 et

seq. and 40 CFR § 230 et seq.

The Rivers and Harbors Appropriation Act was amended in 1976

and is found in 33 U.S.C. § 403.

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United States was required.? In 1977, those § 10 permits

were placed under the regulatory power of the Corps. The

State of Louisiana subsequently assumed that manage-

ment of these activities, pursuant to 33 U.S.C. § 1344(g)(1),

through the Coastal Management Division of the Loui-

siana Department of Natural Resources (Coastal Manage-

ment). Decisions of both the Corps and Coastal Manage-

ment are subject to veto by the federal Environmental Pro-

tection Agency (EPS). See: 33 U.S.C. § 1344. (The Clean

Water Act, § 404(c)).

The requirement of a § 404 permit was not officially

enforced until October 1973, one year after its passage and

after the purchase by the landowner of its properties.

Various changes and revisions were made between 1973 |

and 1979. The permits began to be issued in April 1974,

following the publication of the first set of guidelines by

the EPA.

From 1972 through 1974, BDF was in the process of

completing its improvement, including a levee which was

being built on the alignment recommended by the Corps in

1972. The construction came to a halt, however, in

January, 1974 when the Corps issued a cease and desist

order. Another order was issued in March, 1974, but BDF

was allowed to apply for an after-the-fact permit. At that

time, the levee was 90% complete and litigation ensued. By

December, 1975 the permit application process had resum-

ed, and the application was complete and was ready to be

acted on by the Corps.

3 33 U.S.C. § 403 and 33 CFR § 320 et seq.

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The application was not acted on until 1979, when

the Corps denied the application for a permit because the

BDF property was in the area being considered for the loca-

tion of the westbank levee and its location was still

uncertain.

During and after the landowners’ construction ac-

tivity on the property, the location of the levee was being

debated in meetings and public hearings. The landowners

and parish argued in favor of the location used by the lan-

downers. They argued that it allowed development of the

westbank along a natural and historical pattern. The lan-

downers were also willing to donate the property needed for

the levee, thus saving the parish acquisition costs.

The Department of Interior and the park proponents

argued that the BDF alignment destroyed hundreds of

acres of wetlands. They urged an alignment which pro-

tected as many acres of wetlands as possible. They also

urged a delay to allow Congress time to decide on the park.

In 1973, the Department of Interior had submitted a

park proposal to the Jefferson Parish council, which includ-

ed a protection or buffer zone. Finally in 1978, Congress of-

ficially created the Jean Lafitte National Park. (See: 16

U.S.C. § 230).

From 1978 on, the factors affecting the location of

the levee continued to be considered. The strong opposition

to BDF’s alignment and heavy pressure for the less restric-

tive alignment created considerable debate and delay. The

parish was concerned about excessive costs in ex-

propriating what had been developable property. It had

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been informed that the BDF alignment would be donated

by the landowners, thus, saving millions of dollars in land

compensation costs. The opposition was unmoved and sole-

ly concerned with preserving the integrity of the wetlands

for possible inclusion in the park. In 1980, the parish ap-

plied for a permit along the BDF alignment hoping to

speed up the levee project.4

Eventually several alignment choices were submit-

ted by various parties. Seven were accepted for considera-

tion (A through G). Alternative D was the choice of the

parish and landowners and followed the original BDF levee

for the most part, whereas E was the preferred alignment

of the opposition.

In 1984, the Corps selected an alignment which was

a modified version of E. Modified E precluded any further

development of the property because it left the property

unprotected from hurricane flooding and the normal ebb

and flow of the tides. The Corps, in its letter to the parish,

stated that one of the reasons that the modified alignment

E was chosen was because it had the least impact on the

wetlands and because the parish had not shown sufficient

need to justify wetland destruction.

The parish continued to try to get the Corps to

change the decision. As of this date, all of the parties, the

Corps, the parish and the Levee District understood the

right of way costs for alignment would be prohibitively ex-

4 Federal funding had been an off-and-on-again possibility since 1965.

Further, federal water development projects were averaging 26 years for

completion. Thus, the parish permit was requested as a purely local

project.

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pensive. Progress then came to a halt.

The attempts to change the decision continued into

1985. But in that fall, a nearmiss by one hurricane and

flooding on the westbank by hurricane Juan created

pressure on the council to begin constructing the levee. As

a result, the parish council reluctantly elected to accept

modified alignment E and it was subsequently issued a per-

mit to built on that alignment. However, it continued to

press for alignment D. But, in the meantime, the Jefferson

Parish council passed a resolution on September 11, 1985

transferring responsibilities to the Levee District for con-

struction of the Westbank hurricane protection levee. In

February, 1986, the parish transferred the permit to the

Levee District, who accepted the responsibility to build the

levee along modified alignment E.

Because of the expense in building along modified

alignment E, the Corps began studying the levee for pur-

poses of authorizing federal funding. Federal funding was

approved for development of a levee under the Water

Resources Development Act of 1986. See: 33 U.S.C. § 2201

et seq. Following completion of the Corps’ final en-

vironmental impact study in December, 1986, on April 20,

1987 the Corps approved the Project for funding. But, it

was not until 1990 that an agreement was drawn up and ex-

ecuted between the Levee District and the Corps to share

in the cost of a levee system which goes beyond the cut-off

point of modified alignment E and completely protects the

residential areas bordering on the wetlands. This agree-

ment is referred to as a Local Cooperating Agreement

(LCA) and plays a part in the landowners’ argument.

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In late 1987, the Levee District authorized its ap-

praisers to value the properties involved, and in mid 1988

the Levee District made demand on the landowners for the

right of ways. When the landowners rejected the offer by

the Levee District, the expropriation suits were filed.

In this appeal, the Levee District asserts exceptions

of no cause of action, prescription and non-joiner of an in-

dispensable party. Alternatively, it contends that the

awards are excessive in that (a) the Corps is solely liable for

the losses, and/or/ (b) the value of the property before and

after the taking was the wetland value of $500 per acre and

not the value of developable property, as the trial judge

determined.

EXCEPTIONS

The Levee District asserts that the pleadings of the

landowners relate the damages to the property to the 1979

denial of the § 404 permit by the Corps. It argues that the

taking which deprived the landowners of the property, and

any damages related to the taking, were caused by the

Corps, not the Levee District. Therefore, the Levee District

is not liable. Thus, the landowners have not pled a viable

cause of action against the Levee District.

The Levee District also asserts that, assuming

arguendo that the landowners stated a cause of action

against them, the Corps must be joined as an indispensable

party, since it is the Corps’ actions which removed the pro-

perty from commerce in 1979.

In regard to the exception of prescription, the Levee

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District asserts that if there is a cause of action against it

for the taking in 1979, the action is one for inverse condem-

nation or appropriation, which is a taking without the prior

exercise of eminent domain and payment of compensation

to the landowner. See: Hawthorne v. Louisiana Depart-

ment of Public Works, 540 So.2d 1261 (La.App. 3rd

Cir.1989), writ denied, 544 So.2d 406 (La.1989). Under La.

R.S. 13:5111, claims for these types of takings prescribe

three years from the date of such taking. Thus, the Levee

District contends that the claims are prescribed.

The United States filed an Amicus Curiae brief in

this appeal. Without conceding a taking occurred by the

United States, it asserts that the claims and the judgment

relate the right to compensation to the actions of the Corps

in either 1979 in denying the § 404 permit, or, in 1984 in re-

jecting alignment D. It agrees with the Levee District that

the exception of no cause of action should be maintained,

because actions for uncompensated takings by the Corps,

if that occurred here, are subject to the exclusive jurisdic-

tion of the United States Court of Claims. See: The Tucker

Act, 28 USC § 1491; BDF Corp. v. U.S. Corps of Engineers,

541 F.Supp. 1025 (E.D.La.1982).

The United States argues that the exclusive jurisdic-

tion conferred on the United States Court of Claims is an

exception to the sovereign immunity of the United States

and cannot be waived, even by contract. To do so would im-

pinge on the authority of Congress to create exceptions to

sovereign immunity. See: United States v. Nordic Village,

—_. US. __, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992).

Thus, insofar as the trial judge and landowners relied on

the LCA executed between the Corps and the Levee

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District to determine that the Levee District is primarily

responsible for compensation related to Corps acts, that

reliance is legally misplaced and erroneous. Further, the

United States asserts that interpretation of the LCA is out-

side of the scope of judicial review in a state expropriation

proceedings since the landowners are not a party to the

agreement. See: Sanborn v. Oceanic Contractors, Inc., 430

So.2d 232 (La.App. 4th Cir.1983). And, even if the contract

was properly considered, the language does not support the

trial judge’s holding. The provision which holds the United

States harmless from its acts only pertains to “damages

arising from the construction, operation, and maintenance

of the Project ...”” (LCA Art. IX). Here, the United States

contends that the ‘‘damages”’ arise from Corps regulatory

decisions which are separate from the operation costs of

the levee.

The United States also distinguishes’ the

jurisprudence relied on by the trial judge to hold that, in a

combined federal and local activity, the local assuring

agency is primarily responsible for the taking, subject to a

credit or reimbursement from the federal agency. The

United States asserts that neither case involves inverse

condemnation allegations, as here. In one, Singleton Sheet

Metal Works, Inc. v. City of Pueblo, 727 F.Supp. 579

(D.Colo.1989), the city of Pueblo took the property. Pur-

suant to a LCA, the city was responsible for compensation

for relocation expenses under the Federal Relocations

Assistance Act. The plaintiff had sued for additional

relocation expenses and not for compensation due from a

“taking’’.

In Succession of Rovira v. Board of Comm’rs, 418

A-128

So.2d 1382 (La.App. 4th Cir. 1982), the city and the Dock

Board (as the agency responsible for furnishing easements),

conveyed to the United States a perpetual servitude over

a portion of plaintiff's property. No expropriation pro-

ceedings were instituted nor was just compensation paid.

The plaintiffs sued the Dock Board for ‘‘historical” taking,

but there were no allegations of inverse condemnation by

the United States. Thus, the United States asserts that

neither case supports a position that the local agency, the

Levee District, is responsible for alleged “‘takings” by the

Corps.

The landowners respond to the exception of no cause

of action by arguing first that the petitions allege alternate

taking dates, one of which was 1979, another of which was

1989, and the court cannot grant a partial exception of no

cause of action. Further they point out that they filed a

federal suit to toll prescription, but that the federal suit in-

volves inverse condemnation, unlike the actual taking here

by the Levee District.

The landowners further contend that there is a cause

of action against the Levee District because the taking in

1989 is the critical event that destroyed the value of the

property, not the denial of the permit in 1979. All of the

witnesses testified that the location of the levee would

determine whether or not the property would be

developable. Until that decision was made and acted on,

the value was in limbo. They contend further that the fac-

tural finding by the trial judge, that the process which

began in 1965 concluded in 1989 with the devaluation of

the property because of the expropriation suits, was not

manifestly erroneous, because it was not until then that

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the property was forever placed outside the levee system,

causing it to become undevelopable wetlands.

The landowners point out that the mere denial of a

permit is not a taking under federal law. In order to be con-

sidered a taking, the federal action must deprive the lan-

downers of the ‘economically viable’ use of the property,

a specific fact issue. United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 126-127, 106 S.Ct. 455, 459, 88

L.Ed.2d 419 (1985). Further, they assert that the

jurisprudence shows that the federal entity is liable only

when the action taken by the state or local agency is not

related to the losses. They cite the following cases, which

were also cited by the United States to support the federal

court’s exclusive jurisdiction: Formanek v. United States,

26 C1.Ct. 332 (1992); Dufau v. United States, 22 Cl.Ct. 156

(1990); Loveladies Harbor, Inc. v. United States, 21 Cl.Ct.

153 (1990); Florida Rock Industries, Inc. v. United States,

21 CL.Ct. 161 (1990). In all of these cases, the actions com-

plained of were those of the Corps, not the state or local

agency.

The landowners point out that the Levee District

could have chosen not to accept the permit for modified

alignment E and could have continued the stalemate until

the Corps relented, noting that the federal government can-

not build a structure in a state without local cooperation.

The Levee District, however, chose to begin the work along

modified alignment E despite the fact that both the Corps

and Levee District knew that the right of way acquisition

costs would be exorbitant. Further, as evidenced by the

testimony and exhibits, they expected the Levee District

to bear the costs. The landowners assert that the local

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sponsor is always liable for costs in implementing federal

non-compulsory regulatory programs, citing: James E.

Brookshire, Taking on the Leading Edge, United States

Claims Ct. Bar Association Newsletter, Vol. 1, No. 5 at 9,

September 1992; De-Tom Enterprises v. United States, 213

Ct. Cl. 362, 552 F.2d 337 (1977); Ursin v. N.O. Aviation

Board, 506 So.2d 947 (La.App. 5th Cir.1987), reversed on

other grounds; Adolph v. FEMA, 854 F.2d 732 (5th Cir.

1988).

The landowners argue that the Corps misinterpreted

the reason that the LCA was referred to by the landowners

and the trial judge. They assert that it was not used to

show a federal intent to indemnify the Levee District for

federal inverse condemnation claims, but to reimburse the

Levee District for the extra liability incurred when the

Levee District accepted the Corps-proposed modified E

alignment. The agreement made the acceptance feasible

financially because of the known expensive acquisition

costs of these right of ways.

In regard to the jurisprudence, cited by the trial

judge and criticized by the United States, that the local

sponsor is primarily liable, subject to a credit or reimburse-

ment by the federal agency, the landowners assert that

first, this is not an inverse condemnation suit and is not

distinguishable on the basis that the cases do not involve

inverse condemnation. Next, the landowners claim that the

Singleton case was cited to show the existence of a LCA

does not convert an otherwise local project into a federal

project. As such, the Levee District, as the taking authori-

ty, remains liable to the landowners despite the agreement

with the Corps. Finally, the landowners assert that the

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reason that the United States is involving itself in this case

is that it intends to assert the six year statute of limita-

tions in federal court to defeat the landowners claims on

prescription and if the landowners succeed in federal court,

the payment of the judgment will come from the federal

judgment fund and will not be a charge against the funds

appropriated by Congress for this project. As a result, this

allows the federal agencies involved to avoid confessing

that they mis-represented project costs when seeking Con-

gressional approval for federal funding of the project.

[1-3] the purpose of the peremptory exception of no

cause of action is to determine the sufficiency in law of the

plaintiff’s petition. Darville v. Texaco, Inc., 447 So.2d 473,

474 (La.1984), Franks v. Duvall, 576 So.2d 1194, 1195

(La.App. 5th Cir.1991). It calls into question whether any

remedy is afforded by law for the particular grievance set

forth by the plaintiff. Robinson v. North American

Royalties, Inc., 470 So.2d 112, 114 (La.1985); Franks v.

Duvall, 576 So.2d at 1195. The exception may be sustained

only when it is clearly shown that the law affords no

remedy to anyone for the particular grievance alleged.

Franks v. Duvall, 576 So.2d at 1195.

[4-5] If the allegations of the petition set forth a

cause of action as to any part of the demand, the exception

must be overruled. Franks v. Duvall, 576 So.2d at 1195,

Cupp v. Federated Rural Elec. Ins. Co., 459 So.2d 1337,

1339 (La.App. 3rd Cir. 1984). The purpose of this rule is to

avoid multiple appeals. Rodriguez v. American Bankers In-

surance Company of Florida, 386 So.2d 652, 653 (La.1980),

Franks v. Duvall, 576 So.2d at 1195. Thus, the court cannot

grant a partial exception of no cause of action. Rodriguez

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v. American Bankers Insurance Company of Florida, 386

So.2d at 652, 653; Franks v. Duvall, 576 So.2d at 1195.

[6-7] The exception of no cause of action is triable

solely on the face of the papers. Darville v. Texaco, Inc.,

447 So.2d at 474, 475. For purposes of determining the

issues raised by the exception, the well-pleaded facts in the

petition must be accepted as true. La.C.C.P. art. 927; Dar-

ville v. Texaco, Inc., 447 So.2d at 475.

[8] In this case, the landowners asserted several

distinct taking dates in their pleadings for additional com-

pensation. They included the date the expropriation suits

were filed and the funds deposited. Under the statute the

latter constitutes a taking. La.R.S. 38:387(A). However, a

taking without the formalities can also occur, which is com-

monly referred to as appropriation or inverse condemna-

tion.

Assuming the facts to be true, the taking occurred on

one of those alternative dates. which date is the date of the

taking was a matter for the trial on the merits. But, on the

face of the pleadings, the 1989 expropriation, at the very

least, constituted a taking by the Levee District, and,

under the expropriation statutes, a cause of action exists

for the landowners to pursue additional compensation

against the Levee District. See: La.R.S. 38:351 et seq.

Since a cause of action is set forth as to at least one part

of the demand, we conclude that the trial court did not err

in denying the Levee District’s exception of no cause of

action.

[9] In the next argument, the Levee District and the

United States in its amicus curiae brief (reserving its right

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to contest that a taking occurred), assert that the exception

should have been granted because if the date of the taking

was 1979, as urged by the Levee District, then it is a taking

by the United States, not the Levee District. As such, the

petitions for additional compensation must be brought in

federal claims court. We disagree.®

The expropriation and appropriation rights of the

Levee District are limited by the property rights of in-

dividuals, under the Louisiana Constitution, Art. 1, § 4. See

also: LA. CONST. art. 6, § 42. Further, the Louisiana ex-

propriation statutes require that the expropriating authori-

ty compensete the landowner ‘‘to the full extent of his

loss’. La. R.S. 38:387(C). The measure of compensation for

the property taken is determined as of the time the

estimated compensation was deposited into the court

registry, and for severance damages, on the basis of im-

mediately before and immediately after the expropriation.

La.R.S. 38:387(A), (B).

[10] The full extent of loss does not include ‘‘uses

which are remote, speculative or contrary to law; uses for

which the property is still suitable; or elements of property

ownership which are not actually taken, used, damaged, or

destroyed”’ for levee purposes. La.R.S. 38:281(4). However,

delay damages are included as compensable damages for

property taken out of commerce for an unreasonable length

of time pending expropriation or completion of a project.

See: State, Department of Transportation v. Maynard, 565

5 We note that in a case involving another landowner, West Jefferson

Levee District v. Mayronne, 595 So.2d 672 (La.App. 5th Cir.1992), writ

denied, 605 So.2d 1094, (La.1992), the Levee District did not contest its

legal liability to pay the compensation, just the amount of

compensation.

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So.2d 532, 536 (La.App. 4th Cir.1990), writ denied, 568

So.2d 1079 (La.1990); State, Department of Transportation

v. Brookhollow of Alexandria, Inc., 578 So.2d 558, 562 (La.

App. 3rd Cir.1991), writ denied, 581 So.2d 709 (La.1991).

See also: State, Through DOTD v. Chambers Investment

Co., 595 So.2d 598, 606 (La.1992).

While we are not cited, nor have we found, cases

directly on point with our facts, the trial judge concluded

that the statute language supports a conclusion that the

Levee District can be held liable for all the damages,

regardless of when they were initiated, as in delay damages

cases, or by whom, if the Levee District ultimately exer-

cises its expropriation rights. The cases cited by the trial

judge (Succession of Rovira; Singleton Sheet Metal Works,

Inc.) while not dispositive, give support to this conclusion.

See also: Vuljan v. Board of Commissioners of the Port of

New Orleans, 170 So.2d 910 (La. App. 4th Cir.1965), writ

refused, 172 So.2d 701 (La.1965), and Petrovich v. State of

Louisiana, 181 So.2d 811 (La.App. 4th Cir. 1966).

We are aware that the federal court of claims has ex-

clusive jurisdiction in cases involving losses caused by

federal takings. We are persuaded, however, that the

‘critical events” herein were the three expropriations in

1989. Until then, the landowners had hopes, and the real

possibility existed, that some argument would prevail on

the Corps, or something would happen, to change the deci-

sion of the Corps rejecting alignment D. We find, therefore,

that the landowners have stated a cause of action against

the Levee District and said cause is not preempted by the

exclusive jurisdiction of the United States Court of Claims.

[11] The prescription issue was also properly rejected

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by the trial judge. On the basis of the above findings, the

takings herein occurred when the expropriations were pro-

perly instituted and the ex parte order signed by the trial

judge. See: La. R.S. 38:352; 38:353; 38:354. That occurred

in 1989. Since the takings were the result of the expropria-

tions and not appropriations in 1979, the three year

prescription under La.R.S. 13:5111 does not apply. Since

there is no dispute that the landowners did not perfect their

claims timely under the expropriation time delays (See:

R.S. 38:300), we find that the trial court did not err in deny-

ing the Levee District’s exception of prescription.

[12] The final procedural obstacle raised by the Levee

District is that the United States is an indispensable party,

who must be joined in the event that the landowners

prevail on the exception of no cause of action and prescrip-

tion. In this respect the landowners factually assert that

their losses resulted from the actions of the Corps, and that

the presence of the Corps is required for the granting of

complete relief. See: La.C.C.P. art. 1064.

[13] Indispensable parties are those whose interest in

the subject matter are so interrelated, and would be so

directly affected by the judgment, that a complete and

equitable adjudication of the controversy cannot be made

unless they are joined in the action. La.C.C.P. art. 641. The

order for joinder, however, cannot issue unless the court

can obtain jurisdiction over the unnamed party. See:

La.C.C.P. art. 644 and 1064.

As we have previously concluded, the taker in this

case is the Levee District. Based on our analysis of the

jurisprudence and the facts, the Corps does not have the

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primary responsibility to the landowners, because the

ultimate value destroying event was the 1989 expropria-

tion by the Levee District. Additionally, the trial court

does not have jurisdiction over the Corps. Thus, the Corps

is not an indispensable party, regardless of its part in the

events leading to the expropriation actions. We therefore

conclude that the trial court did not err in denying the

Levee District exception of non-joinder of an indispensable

party.

VALUATION OF THE PROPERTIES

The next issue is whether the trial judge erred in his

valuation of the property taken, the severance damages

and the delay damages.

[14,15] Just compensation is based on the market

value of the property taken, which is the best and highest

use of the property as of the date of the taking. La. R.S.

38:387(A); West Jefferson Levee District v. Mayronne, 595

So.2d 672, 679 (La. App. 5th Cir.1992). The date of the tak-

ing is the date that the deposit was made into the registry

of the court. R.S. 38:387(A); West Jefferson Levee District

v. Mayronne, 595 So.2d at 679.

[16] Severance damages are due when the taking has

adversely affected the value of the remaining property.

R.S. 38:387(B); West Jefferson Levee District v. Mayronne,

595 So.2d at 679. Those damages are measured by the dif-

ference between the value of the land immediately prior to

and immediately after the taking, after considering the ef-

fects of the completion of the project in the proposed or

planned manner. R.S. 38:387(B); West Jefferson Levee

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District v. Mayronne, 595 So.2d at 679.

[17,18] The highest and best use criteria is ‘“‘that to

which it is best adaptable in the not-too-distant future and

which is not speculative or remote.” West Jefferson Levee

District v. Mayronne, 595 So.2d at 681. Various factors

may be considered in this determination, as we set out in

Mayronne:

‘(a) Costs to clear and prepare the land for

the particular purposes;

(b) Proximity of the land taken to areas

already developed in a manner compatible with

the use proposed;

(c) Some action already taken to develop the

land for the use in question;

(d) A scarcity of land available for the use;

(e) Use permitted by the zoning ordinance of

the parish or city in which the land taken is

located;

(f) Use to which the land is put at the time of

the taking; and

(g) Existence of offers to buy the property by

those interested in developing it for the intended

use.

In addition, other factors are the evidence of

a market demand in the vicinity for such use and

specified plans of businesses and individuals in

the area, included action already taken to develop

the land for that use.’’ Mayronne, 595 So.2d at

681. (citations omitted).

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The Levee District argues that the landowners’ experts

based their opinions on the assumption that the lan-

downers could have obtained a permit for alignment D. The

Levee District contends that this evidence of value is

highly speculative. Even if there was no expropriation, the

permitability of the property was unlikely given the

wetlands status, the creation of the park on the borders of

the properties and growing environmental concerns.

The Levee District argues the value should be deter-

mined as of 1979, because, as stated previously, that is the

date the property was effectively taken out of commerce.

Because of that, the Levee District experts, Irvington Ep-

pling and Peter Talluto, testified that the land value fell to

between $500 to $550 per acre, a nominal value due to its

status as undevelopable wetlands. They state that the

highest and best use for wetlands is recreational hunting

and fishing, etc.

The same argument is made for the severance

damages. The Levee District argues that the remaining

property suffered no loss because the entire tract was

undervelopable wetlands immediately before and after the

expropriations in 1989.

The Levee District also asserts that it is not liable for

delay damages. It contends that the delays were due to the

action or inaction of the Corps. However, it disputes that

it is liable under the LCA for the federal conduct. It argues

that the LCA refers to a separate project, not related to

this levee. That separate project is the completion of a

levee system around the residential areas of the westbank,

beginning where modified alignment E ends.

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Further, the Levee District claims that even if the

LCA applies here, these claims do not fall within the con-

tract language. The language creates liability on the local

sponsor, here the Levee District, for claims arising from

the operation, maintenance or construction of the levee pro-

ject, which it argues, is not the case here.

The landowners respond by asserting that there is no

manifest error or abuse of discretion in the valuation. See:

West Jefferson Levee District v. Mayronne, 595 So.2d at

679. They cite the testimony, documentary evidence, the

LCA and the Mayronne case to show the Levee District

knew it was going to be liable for compensation in an

amount based on the valuation of the property as commer-

cially developable property.

The landowners also assert that it was the expropria-

tion along modified alignment E which devalued the pro-

perty. They argue that it decided the future parish growth

line, set the park boundary, caused the property to be sub-

ject to hurricane flooding and tidal flow and foreclosed any

possibility of the landowners ever obtaining the federal or

local permits necessary to build outside the levee

protection.

The landowners point out that, if the land is

developable, then the damage awards must be upheld

because the Levee District did not produce evidence

disputing the values and damages testified to by the lan-

downers’ experts which was based on the developability of

the land. The only values produced by the Levee District

were for undevelopable wetlands.

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In reference to the delay damages, the landowners

cite three cases to support their argument that the Levee

District is liable under the LCA. See: Clayton v. State

Dept. of Transp. and Dev., 599 So.2d 394 (La.App. 5th

Cir.1992); State, Dept. of Transp. and Dev. v. Brookhollow

of Alexandria, supra and State, Dept. of Transp. and Dev.

v. Maynard, supra, (overruled on interest only by State v.

Estate of Davis, 572 So.2d 39 (La.1990.). They contend that

these cases are applicable because they arose out of the in-

ability of the state and federal government to execute the

respective project in a timely manner.

The evidence shows that the mere fact that property

is or contains wetlands does not preclude its development,

assuming that a § 404 or § 10 permit could be obtained. All

of the witnesses privy to the permit process agreed to this

fact.

Dr. Sherwood Gagliano and Dr. Joseph Krebs

testified that the property is inherently developable.é They

stated that although wetlands, the soil and elevations on

the major portion of these parcels is composed of the same

materials as many developed areas of both the east and

westbank of the parish. The experts agreed that wetland

status does not preclude development with proper

engineering. Krebs and the appraisers, William Hartwell

6 Dr. Gagliano was qualified as an expert in the § 404 and § 10 permit-

ting process, in conjunction with his expertise in coastal and alluvial

geology, land resource and coastal management of natural systems,

regional planning, environmental processes, mariculture, agriculture

and archaeology.

Dr. Krebs was qualified as an expert in civil engineering and land

surveying.

A-141

and Richard Brewster, further pointed out that the BDF

group had a record of success for developments of this

kind.

The testimony of the landowners and levee district

witnesses recognized that the property is in the historical

growth corridor of the West Bank. Dr. Gagliano also noted

that the wetland areas in the growth corridor have a

history of agricultural activities going back one hundred

years. Robert Evans, the Parish Council chairman,

testified that the parish expected the landowners property

to be developed and saw no legal impediment to its develop-

ment until the obstacle raised by this levee project. He

stated that it was for this reason that the parish expected

the acquisition costs of the right of ways for the levee to be

high.

The Levee District appraisers, Talluto and Eppling,

stated that the value of wetlands, which are not

developable because no permit can be obtained, is $500 to

$550 per acre. There were some areas of non-wetland or pro-

tected acreage, which they valued at $23,000 to $25,00 per

acre (BDF had six separate parcels of varying sizes. Ap-

proximately six acres were non-wetlands). The witnesses

did not assess a value for severance damages because they

asserted that the land was worth the wetlands value before

and after the taking.

The landowners’ experts on value and delay damages

were Hartwell, Brewster and Dr. Wade Ragas. Their values

were based on the opinions of Gagliano and Krebs. Those

witnesses testified that the property would have been

developed according to the Master Plan if the levee project

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had not interfered.

The trial judge, in his discretion, utilized the values

of Hartwell in calculating the compensation for the land

taken and severance damages. He preferred Hartwell’s

figures because he did not agree with Brewster’s method of

valuing all contiguous property under one ownership as one

parcel. Brewster’s method resulted in lower values per acre

for BDF. The trial judge was of the opinion that the lower

values did not accurately reflect the market value because

the BDF land was actually divided into parcels, because

BDF had a history of selling parcels and because BDF is

entitled to full compensation under the law.

Hartwell testified in detail concerning value per acre,

per parcel, before and at the time of the taking, giving

lesser value to existing servitudes. His average value was

approximately $23,000 per acre. Brewster’s calculations

resulted in a total difference of $1,739,419 less for BDF,

$395,214 less for Coast and $394,722 less for Isaac. Both

experts factored in the location of the property in the

historical growth corridor of the westbank, comparable

sales and development and the slow-down of growth in the

1980s. Both experts stated that the other expert testimony

was based on valid appraisal methods. They agreed that

delay damages of 10% simple interest per year on the value

would be an appropriate award and that unprotected

wetlands are worth $500 per acre.

Hartwell and Brewster admitted that, if the proper-

ties had not been permittable, they were worth $500 before,

at and after the taking. However, neither agreed with the

Levee District’s position that the properties were not per-

A-143

mittable in 1989 because they were in limbo at that time.

The two experts, on cross-examination, denied that the pro-

perties had only wetlands value, in spite of the permit

uncertainty.

[19-20] As an appellate court, we may not modify the

factual findings of a trial court unless we conclude that the

trial judge or jury was manifestly erroneous, or clearly

wrong in the factual determination. West Jefferson Levee

District v. Mayronne, 595 So.2d at 679. After our review of

the testimony and documentary evidence, we conclude that

the trial judge was not clearly wrong in his award of com-

pensation for the value of the land taken and severance

damages. The critical events were the takings by the ex-

propriation proceedings instituted in 1989. The market

values were destroyed by that final act. Until then, the real

possibility of a change in the landowners favor existed.

Further, the Levee District knew that the property was in-

herently developable and also that it risked high land-

acquisition costs when it accepted the modified alignment

E. Both the testimony of the Levee District witnesses and

the documentary evidence proved this. Regardless of the

LCA, the Levee District took action which forever foreclos-

ed the possibility of development and it is liable for the

market value, before and at the time of the taking. Since

the Levee District does not dispute the figures on value,

based on the developability of the land as testified to by

Hartwell and Brewster, these awards should be affirmed.

Even if we were to agree with the Levee District that

the value of the land was nominal, both before and after the

taking, we would still reach this same conclusion,

A-144

because the inability to get a permit or develop the land

prior to the takings was wholly the result of governmental

(all of the entities which combined to halt the project) con-

trol and in no way the result of landowner action. It was

governmental action which arguably devalued the proper-

ty, which was developable except for the interference of the

levee project. The landowners’ dreams of development were

shattered, not by the expected or everyday risks of proper-

ty ownership, but by a factor within the exclusive control

and discretion of the governmental entities involved in the

levee project. It is patently unfair and unconstitutional to

penalized the landowners for the effect of these governmen-

tal restrictions by refusing to compensate them for this in-

jury to the full extent of their loss. Thus, under every

analysis of this case, we find that the landowners are entitl-

ed to be compensated by the appropriate parties according

to values set forth by the trial judge, which we have

already found not to be manifest error. We, therefore, af-

firm the awards of compensation for value of the land taken

and severance damages to BDF, Coast and the Isaacs.

[21] Certain questions must be answered before an

award for delay damages can be maintained. First, was

there a delay in the project? Second, was there a reasonable

expectation that the project would receive a permit? Third,

what was the period of delay? Fourth, who is legally

responsible for the delay? And finally, what is a fair and

reasonable calculation of the loss suffered as a result of the

delay?

Dr. Ragas, a real estate and financial analysis expert,

was called to testify as to delay damages. He analyzed

various factors to arrive at the 10% per year simple in-

A-145

terest figure which was eventually awarded by the trial

judge. He considered the changing economic conditions in

the area, both the earlier downward trend and the more re-

cent upward recovery, return on investments during the

ten years ranging from yields of 7% to 10% and the en-

trepreneurial profits that the landowners could have ex-

pected to earn had the development proceeded as planned.

Dr. Ragas stated that the final determination of the levee

alignment was the crucial element in the development of

the levee. However, he also stated that the uncertainty

could cause the value to be reduced and that until the align-

ment was chosen and the levee alignment fixed, the assign-

ment of value would be difficult.

In answer to the first question, the trial court found

that there was a delay and he assessed damages against the

Levee District. The evidence shows that the project was

delayed, actually stopped, by the cease and desist order

and by the permit denial. Therefore, we find that the trial

court was not manifestly erroneous in its holding.

Like the Mayronne case, both sides herein introduc-

ed extensive evidence, including the testimony of experts,

concerning whether there was a reasonable expectation

that the landowners would receive a permit for their pro-

ject. Dr. Gagliano testified that, ‘‘this was a serious well

coordinated planning process and project that was well

funded and would have been well implemented had it not

been disrupted by the cease and desist order.’’ In response

to the question, ‘‘In terms of the landowners reasonable ex-

pectations by December of 1975, was there anything out

there that should have changed their expectation that they

should have been allowed to proceed with their

A-146

development.” Dr. Gagliano responded, “‘No. I think that

they could reasonably expect that the project could be com-

pleted ...”’

The trial judge considered the totality of the

evidence and concluded, after a six day trial, that there was

no legal impediment, including its permitability, to the

development prior to the actual takings. After our review,

we do not find manifest error or that the trial judge was

clearly wrong in finding the land developable prior to the

takings.

We will next consider the period of delay. The trial

court found that the delay damages began on September

21, 1979 (the date that the Corps denied the landowners a

permit to develop the properties and the date from which

the landowners prayed for delay damages). The evidence

supports this finding. Thus, we find that the trial court was

not manifestly erroneous in determining the period of

delay.

[22] Next, we will consider who is legally responsible

for the delay. The trial judge found that the Levee District

was responsible for the delay damages for the entire period.

We find no manifest error that the Levee District is respon-

sible for some part of that delay. However, we find that the

trial court, decision holding the Levee District responsible

for the delay damages from 1979 was manifestly erroneous.

The Levee District cannot be held responsible for

delay damages before they were responsible for the levee

construction. That occurred on September 11, 1985, the

date the parish passed the resolution transferring respon-

A-147

sibility to the Levee District for construction of the levee.

Not until then did the Levee District have the authority to

exercise control over the status of the property. We also

find no evidence that the Levee District acquired respon-

sibility from any other party at any other prior time.

Therefore, we affirm the judgment of the trial judge that

the Levee District is liable to the landowners the delay

damages. However, we amend the judgment to award

delay damages against the Levee District from September

11, 1985.

We will next consider what is a fair and reasonable

calculation of the loss suffered as a result of the delay. Ac-

cepting the testimony of Dr. Ragas, the trial court found

that said damages are due at the rate of 10% per year sim-

ple interest on the difference between the amount

deposited and the amount awarded. The testimony by Dr.

Ragas was uncontroverted and credible. Therefore, we find

that the trial court was not manifestly erroneous in its

finding.

Because we have amended the award on delay

damages, the award of attorney fees must also be amended

to conform to the trial judge’s award of 25% of the dif-

ference between the amount deposited and the amount

awarded. See: La.R.S. 38:387(E). While we point out that

the Levee District did not appeal the attorney fee award,

thus we need not consider that issue,’ we also note that we

have reviewed it and find no manifest error based on the

record and legal criteria. See: La.R.S. 38:387(E); State,

7 See: La.C.C.P. art. 2082; Uniform Rules, Court of Appeal Rule 2-12.4;

United Talent Asso. v. Parish of Jefferson, 457 So.2d 1293 (La. App. 5th

Cir.1984), writ denied, 462 So.2d 653 (La.1985).

A-148

DOTD v. Williams, 597 So.2d 439 (La.1992); State, Dept. of

Transp. v. Hecker, 493 So.2d 125 (La.App. 5th Cir.1986).

Accordingly, the judgment of the trial court is

hereby affirmed as to the awards of compensation to the

landowners for the value of the land taken and severance

damages. It is hereby amended to award delay damages to

the three landowners from September 11, 1985 in the

amount of 10% per year simple interest on the difference

between the amount deposited and the amount awarded

until February 15, 1989 for BDF, until June 30, 1989 for

the Isaacs, and until July 12, 1989 for Coast.

The award of attorney fees is amended to 25% of the

difference between the amount deposited by the Levee

District in these three consolidated expropriations and the

amounts awarded under this decision.

The judgment of the trial court is otherwise affirmed.

The Levee District is to pay the costs of appeal.

AFFIRMED IN PART, AMENDED IN PART

AND AFFIRMED AS AMENDED

A-149

APPENDIX C

24TH JUDICIAL DISTRICT COURT

FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

NO: 384-086

DIVISION “‘G*

WEST JEFFERSON LEVEE DISTRICT

VS.

COAST QUALITY CONSTRUCTION CORPORATION

CONSOLIDATED WITH

NO: 376-286

WEST JEFFERSON LEVEE DISTRICT

VS.

BAYOU DES FAMILLES DEVELOPMENT

CORPORATION, ET AL

CONSOLIDATED WITH

NO: 383:659

WEST JEFFERSON LEVEE DISTRICT

VS.

BETTY JANE PERRIN, WIFE/OF

AND RONALD J. ISAAC

FILED: February 27, 1992 Illegible

DEPUTY CLERK

A-150

REASONS FOR JUDGMENT

The above captioned matters were consolidated for

trial. The factual and legal issues are identical in all three

cases. The only differences are the awards granted the in-

dividual property owners due to the size and value of their

respective properties. Therefore, the reasons for judgment

assigned herein apply to all three cases.

HISTORY OF THE PROJECT

Paraphrasing Judge Rubin, ‘the issues of these cases

cannot be comprehended without reviewing the twenty six

year history of the project.’! During the course of this six

day trial, the Landowners? presented hundreds of exhibits

and days of testimony from several witnesses which

described that history in detail.

The Court finds that the chronology presented by the

Landowners as Exhibit LO-320 accurately details the

history of the levee selection alignment process as it relates

to the Property, and that the events described in the

chronology were proven through the evidence produced at

trial. The relevant facts of that history are as follows:

1 Creppel v. U.S.A. Corps of Engineers, 670 F.2d 564, 566 (5th Cir. 1982)

2Bayou des Familles Development Corporation, Coast Quality Con-

struction Corporation and Betty Jane Perrin, wife of/and Ronald J.

Isaac are collectively referred to as the Landowners

3 The Property is those parcels of land owned by the Landowners and

described as Parcels 1-B, 1-C, A, H, K-1-A, K-5, Q and S of the Robert

J. Perkins Tract, Jefferson Parish, Louisiana, containing a total of

1248.34 acres.

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Until the current West Bank Hurricane Protection

Levee is completed, large areas and thousands of people on

the West Bank of Jefferson Parish have been, and will con-

tinue to be, unprotected from storm surges coming from

the Gulf of Mexico. As early as 1965 various local, state

and federal agencies began to study the location of a hur-

ricane protection levee to eliminate that danger. That levee

alignment selection process which began in 1965 was not

concluded until the West Jefferson Levee District accepted

the permit for a levee alignment from the United States Ar-

my Corps of Engineers, and acted on that permit. Once the

alignment of the West Bank Hurricane Protection Levee >

was finally decided, the land uses available to the Lan-

downers for their property were determined. Therefore, the

Court finds as a fact that the event which constitutes the

taking of the Property, and which determined its ultimate

value, was the expropriation of the right-of-way for the

West Bank Hurricane Protection Levee by the West Jeffer-

son Levee District.

The main premise of the West Jefferson Levee

District’s position is that even though the Landowners

may have been damaged, it is the United States govern-

ment through the United States Army Corps of Engineers

that caused that damage, and the West Jefferson Levee

District is not responsible for the devaluation caused by

the Corps. In order for the West Jefferson Levee District

to prevail on this issue, the Court would have to find that

the devaluation of the Landowners’ property was unrelated

to the proposed improvement for which a portion of the

Property was expropriated. However, the Court finds as a

fact that the levee alignment selection process was a con-

tinuous project beginning in the late 1960’s and ending

A-152

only when the West Jefferson Levee District finally acted

upon the permit issued for levee alignment alternative

modified E (Alternate E). The West Jefferson Levee

District argues that, when it accepted and acted on that

permit, there were no other alternatives available, and that

the decision about where the levee would be built had been

determined before that event. The historical record does

not support the West Jefferson Levee District’s argument,

and the Court finds as a fact that prior to the decision of

the West Jefferson Levee District to accept and act upon

the permit for Alternate E, no final determination for the

location of the West Bank Hurricane Protection Levee had

been made. The court also finds as a fact that it was the

location of the West Bank Hurricane Protection Levee in

those reaches affecting the Property which determined the

land uses available for the Property.

The Property was originally acquired by Bayou des

Familles Development Corporation* on August 21, 1972 as

part of a larger tract of ground. Several parcels of that

larger tract were sold to others, including Coast Quality

Construction Corporation® and Betty Jane Perrin, wife

of/and Ronald J. Isaac®, both of whom were insiders of

Bayou des Familles, and both purchased approximately

101 acre tracts from Bayou des Familles within days of

Bayou des Familles’ acquisition of the larger parcel. As

part of the agreement among these parties, Bayou des

Familles was to provide the necessary levees, drainage

4 hereafter referred to as Bayou des Familles

5 hereafter referred to as Coast

6 hereafter referred to as Isaac

A-153

facilities, sewerage treatment plant, potable water lines,

and master plan to put the Property into commerce. When

it later became necessary to obtain 404 and § 10 permits,

it became Bayou des Familles’ responsibility to seek these

permits for the benefit of itself and for the benefit of Coast

and Isaac. Bayou des Familles in fact completed the

drainage facilities, the sewerage treatment plant and the

potable water lines which were eventually dedicated to the

Parish. The levee system was 90% complete when work on

the levee was stopped on January 15, 1974 by a cease and

desist order issued by the Corps pursuant to §404 of the

Clean Water Act of 1972.

The Court finds as a fact that, at the time the Lan-

downers acquired the Property, they had a reasonable in-

vestment backed expectation that they would be allowed to

develop the Property in a fashion consistent with the

master plan prepared by VTN Corp. because:

1) The type of soil which makes up the pro-

perty is of a better quality than that found

in many already successfully developed

areas of Greater New Orleans, and par-

ticularly of Jefferson Parish;

2) The elevation of the property is high com-

pared to other developed areas;

3) The property lies within traditional

growth corridors;

4) The Corps of Engineers’ proposed levee

alignment in 1972 included the property

within the protected area;

A-154

5) Jefferson Parish approved construction of

a hurricane protection levee by Bayou des

Familles along the Corps’ 1972 alignment

with minor modification;

6) The Corps and HUD approved the Bayou

des Familles levee and authorized a reduc-

tion in the Base Flood Elevation upon

completion;

7) At the time the Landowners purchased the

property no 404 or §10 permit was re-

quired for its development; and

8) These landowners included some of the

most experienced, capable and successful

real estate developers in the metropolitan

area.

After the cease and desist order was issued, Bayou

des Familles, pursuant to a consent judgment with the

federal government, made application for after-the-fact 404

and §10 permits. By December 10, 1975, the Corps of

Engineers was ready to act on that permit application. The

Court finds as a fact that the only reason the Corps did not

issue those permits to Bayou des Familles in late 1975 or

early 1976 was the uncertainty over the location of the

West Bank Hurricane Protection Levee, which is the

Project’ for which the Property has been expropriated.

The Corps finally acted on the Bayou des Familles

404 and $10 permits on September 21, 1979, and denied

7 the West Bank Hurricane Protection Levee is sometimes referred to

herein as the Project

A-155

those permits. However, the denial of those permits did not

finally determine the land uses available for the Property,

because the denial of a particular permit does not preclude

the issuance of that same permit at a later time. This is

evidenced by the fact that almost immediately after the

Bayou des Familles permit was denied, the Parish applied

for an almost identical permit. Indeed, prior to the denial

of the Bayou des Familles permit, the Corps proposed

several alternate alignments for the West Bank Hurricane

Protection Levee, half of which followed the Bayou des

Familles levee in those reaches affecting the Property. As

a result of the Parish’s permit application, the Corps

published a draft Environmental Impact Statement in

1984, which proposed seven (7) alternate alignments, and,

again in those reaches affecting the Property, three of the

alternates followed the Bayou des Familles levee. The

evidence shows that in those reaches affecting the Proper-

ty, only two locations were ever considered for the West

Bank Hurricane Protection Levee; the alignment along

which Bayou des Familles actually built its levee; and the

alignment along which the West Jefferson levee District is

currently building its levee.

The Court finds as a fact that the construction of the

West Bank Hurricane Protection Levee along the Bayou

des Familles alignment would have allowed the Property to

be developed as described in the VTN Master Plan, that is,

primarily for the purpose of single family subdivisions. The

Court also finds as a fact that the construction of the West

Bank Hurricane Protection Levee along Alternate E

precludes the development of the Property for any commer-

cially viable purpose whatsoever. And the Court finds as a

fact that the construction of the West Bank Hurricane Pro-

A-156

tection Levee along either of the two possible alignments in

the reaches affecting the Property, precludes the possibili-

ty of a levee being built along the other alignment.

Two events occurred in the late 1970’s and early

1980’s which significantly influenced the selection of the

levee alignment. One was the creation of the Jean Lafitte

National Historical Park,’ and the other was the adoption

of the Jefferson Parish Coastal Zone Management Plan

which adopted the concept that the West Bank Hurricane

Protection Levee would form the growth/no growth line for

the West Bank of Jefferson Parish. On one side of the issue

was the conservationists who urged the adoption of Alter-

nate E for the express purpose of keeping the Property (and

presumable other land as well) out of commerce, and preser-

ving it in its natural state for inclusion into the Park. On

the other side of the issue were the Parish, who opposed

Alternate E because of the excessive right-of-way costs im-

posed by that alignment, and the various property owners,

including the Landowners, who opposed Alternate E

because it took their properties out of commerce. The

Parish and the Landowners urged the Corps to issue a per-

mit for Alternate Alignment D, which in the reaches affec-

ting the Property closely followed the original Bayou des

Familles levee, because the right-of-way would have been

donated, and the Property on the protected side of the levee

would have been developable.

On June 18, 1984 the Corps denied the Parish’s re-

quest for a permit along Alignment D and instead offered

a permit for Alternate E. As of that date, all of the parties

8 The Jean Lafitte Natioinal Historical Park is sometimes referred to as

the Park

A-157

involved in the levee alignment selection process, including

the Corps, the Parish and the West Jefferson Levee

District, understood that the cost of the right-of-way along

Alternate E was prohibitively expensive, making it im-

possible for local government to proceed with the Project.

Progress on the Project therefore came to a halt, which

lasted for approximately fifteen (15) months.

In the fall of 1985, a solution to the dilemma began

to emerge, which included the federal government paying

65% of the cost of this Project. Federal funding had been

proposed at least as early as 1978, and the effort to obtain

those funds resulted in the adoption of the Water

Resources Development Act of 1986. The Parish of Jeffer-

son assigned its interest in the permit to the West Jeffer-

son Levee District, and in February, 1986, the permit for

Alternate E was accepted by and issued to the West Jeffer-

son Levee District. Even before that event, in the fall of

1985, the Corps began a fast track study of the West Bank

Hurricane Protection Levee for purposes of federal fun-

ding. The feasibility report and final Environment Impact

Statement resulting from that study was issued in

December, 1986, and on April 20, 1987, the Corps approved

the Project for funding. In late 1987, the West Jefferson

Levee District authorized its appraisers to value the Pro-

perty, and in mid-1988, the West Jefferson Levee District

made its demand on the Landowners for the right-of-way

for Alternate E. The Landowners rejected the offer by the

West Jefferson Levee District, and these expropriation

suits were filed beginning in February, 1989.

Therefore, the Court finds as a fact that the denial of

the Bayou des Familles 404 and §10 permits, the selection

A-158

of Alternate E, and the expropriation of the right-of-way

for the West Bank Hurricane protection Levee in these pro-

ceedings, are all part of the same Project.

LIABILITY OF THE WEST JEFFERSON

LEVEE DISTRICT

The West Jefferson Levee District argues that

because the only permit offered to it for the Project was for

Alternate E, it is not responsible for the Landowners’

losses. While it is true that the Corps had rejected the BDF

permit application, and the Parish’s permit application, the

Court finds as a fact that these actions did not determine

the location of the West Bank Hurricane Protection Levee,

and that the determination of that location was made by

the assignment to the West Jefferson Levee District of the

Parish’s interests in the permit and by its acceptance of,

and action upon the permit for Alternate E. Part of acting

upon that permit was the filing of these expropriation suits

and therefore, the Court finds that the West Jefferson

Levee District is the taking authority liable to the

Landowners.

The position taken in these cases with regard to the

West Jefferson Levee District’s liability for the act of the

Corps is contrary to the position taken by the Levee

District on this same issue in a companion case. West Jef-

ferson Levee District v. Mayronne, So.2d (La.

App. 5th Cir. 1992), (No. 91-CA-87, decided January 31,

1992), 1992 WL 21068 (La.App. 5th Cir.) In Mayronne, the

West Jefferson Levee District stipulated that it was liable

for the actions of the Corps. While the West Jefferson

Levee District is not bound by that stipulation in these

A-159

cases, this Court finds as a fact that the stipulation in

Mayronne is consistent with the Local Cooperation Agree-

ment between the West Jefferson Levee District and the

Corps, and the position of the West Jefferson Levee

District in these cases is not. After reviewing the Local

Cooperation Agreement and considering the testimony of

Mr. Mike Rolland, attorney for the Corps, this Court finds

as a fact that it was the intent of the Corps and the West

Jefferson Levee District that the Local Cooperation agree-

ment apply to the claims of these Landowners. What

jurisprudence exists on this issue also holds that the local

assuring agency is primarily liable to the property owner,

subject to a credit or reimbursement from the federal agen-

cy. Succession of Rovira v. Board of Commissioners of the

Port of New Orleans, 418 So.2d 1382 (La. App. 4th Cir.

1982) writ denied 423 So.2d 1147 (La. 1983); Singleton

Sheet Metal Works, Inc. v. City of Pueblo, et al 727

F.Supp. 579 (U.S.D.C. D. Col. 1989).

Therefore, this Court holds that the West Jefferson

Levee District is the party responsible to the Landowners

for the awards made in these case.

VALUATION

To properly value the Property, this Court must

determine whether the property values were already

destroyed at the time of taking for reasons unrelated to the

Project, as the West Jefferson Levee District suggests, or

whether that devaluation was caused by the Project as the

Landowners suggest. The history of this Project described

above makes it clear, and this Court finds, that the

loss of value suffered by the Property was caused by

A-160

the proposed improvement for which portions of the Pro-

perty have been expropriated. Therefore, this Court feels

that LSA-R.S. 38:387 requires that just compensation in

these cases be calculated under the assumption that there

was no legal impediment to the development of the

Property.

The experts on valuation presented by the parties

premised their opinions on completely different assump-

tions. On the one hand, the West Jefferson Levee District's

appraisers, Mr. Peter Talluto and Mr. Irvington Eppling,

both valued the property as if it were undevelopable,

wetlands. The appraisers for the Landowners, Mr. William

Hartwell, Mr. Richard Brewster and Dr. Wade Ragas, bas-

ed their calculations of value on the opinions of Dr. Sher-

wood Gagliano and Mr. Joseph Krebs, who believed that

but for the Project, the Property would have been

developed pursuant to the Master Plan.

As described above, this Court agrees with the opi-

nions of Dr. Gagliano and Mr. Krebs. The court finds that

the highest and best use of the Property as of the date of

the takings was for the development of single family

subdivisions.

The only calculations of just compensation presented

to the Court using the correct assumptions are those done

by Mr. Hartwell, Mr. Brewster and Dr. Ragas. The West

Jefferson Levee District made no attempt to challenge the

validity of these calculations other than to challenge the

correctness of the underlying assumptions. This Court has

determined that these assumptions are correct, and

therefore, the Property values determined by the Land-

A-161

owners’ experts is unrebutted. The Court does note that

Mr. Talluto and Mr. Eppling did appraise those portions of

the Property that did not require 404 and §10 permits at a

higher value than did either Mr. Hartwell or Mr. Brewster.

The Court finds as a fact that the only difference between

the portions of the Property requiring 404 and §10 permits,

and those portions of the Property not requiring those per-

mits, is the requirement for those permits. Therefore, the

Court finds as a fact that if Mr. Talluto and Mr. Eppling

had used the same assumptions as Mr. Hartwell and Mr.

Brewster, their opinions of value would not have differed

from Mr. Hartwell and Mr. Brewster.

However, Mr. Brewster and Mr. Hartwell did

disagree over the applicability of the concept of plottage.

The concept requires that all contiguous property under

single ownership be valued as one parcel. In the case of the

Property owned by Bayou des Familles, applying this con-

cept yielded lower values per acre. Because the Property

was actually divided into parcels, because Bayou des

Familles had a proven history of selling off portions of the

Property, and because Louisiana Constitution Article 1, $4

and LSA-R.S. 38:387(C) require just compensation to the

full extent of the loss, the Court finds as a fact that the

values calculated by Mr. Hartwell are correct. For the por-

tions of the Property taken or to be taken for the right-of-

way for the Project, the Court has made the following

awards:

Bayou des Familles Development

Corporation $2,849,000.00

Coast Quality Construction

Corporation 1,480,000.00

A-162

Betty Jane Perrin, wife of/and

Ronald J. Isaac 975,000.00

SEVERANCE DAMAGES

As a result of the improvements for which portions

of the Property have been expropriated, those portions of

the Property on the unprotected side of the levee have suf-

fered severance damages. The Court finds that if the Pro-

ject had not been built in its current location, Alternate E,

it would have been built (and was in fact 90% complete)

along the Bayou des Familles levee. The Court also finds as

a fact that without government intervention, Bayou des

Familles would have completed its own levee and the Pro-

perty would have been developed.

Just compensation requires that in addition to pay-

ment for the property actually taken, a property owner is

also entitled to recover damages suffered to the remainder

of his property. State DOTD v. Regard, 467 So.2d 1174 (La.

App. 3d. Cir. 1991); State DOTD v. Caroline Atkins

Crawford Business Trusts, 538 So.2d 1078 (La. App. 3d

Cir. 1989) writ denied 542 So.2d 138 (La. 1989); Board of

Levee Commissioners v. Bostick, 464 So.2d 954 (La. App.

4th Cir. 1985).

Before the taking, the Property had substantial

value ranging from a low of $16,000.00 per acre to a high

of $24,000.00 per acre depending on the parcel. After the

taking, the value is greatly diminished, having a nominal

value of no more than $500 per acre. Again, the Court ac-

cepts Mr. Hartwell’s values as correct, and makes the

following awards for severance damages:

A-163

Bayou des Familles Develop-

ment Corporation $14,478,000.00

Coast Quality Construction

Corporation 703,000.00

Betty Jane Perrin, wife of/and

Ronald J. Isaac 1,194,000.00

The West Jefferson Levee District has argued that

the placement of the Project along Alternate E does not

preclude the Landowners from seeking permits for a levee

along their original alignment. The Court rejects this posi-

tion because the Coastal Zone Management Plan for Jeffer-

son Parish establishes the alignment of the West Bank

Hurricane Protection Levee as the line of demarkation bet-

ween those areas which may be developed, and those which

may not. Furthermore, the Court finds as a fact that the ex-

istence of the West Bank Hurricane Protection Levee along

Alternate E creates such practical barriers to the future

development of the Property on the unprotected side of the

Project, that the severance damages to that portion of the

Property on the unprotected side is most of that property’s

before taking value. Board of Levee Commissioners uv.

Bostick, supra. Therefore, the Court finds that the con-

struction of the Project along Alternate E precludes the

construction of a levee along the original Bayou des

Familles alignment, and hampers the future developability

of that portion of the property on the unprotected side of

the Project.

DELAY DAMAGES

Upon a proper showing, a property owner is entitled

A-164

to recover delay damages as part of the just compensation.

State DOTD v. Chambers Investment Co., 576 So.2d 1174

(La. App. 3rd Cir. 1991); State DOTD v. Maynard, 565

So.2d 532 (La. App. 4th Cir. 1990) writ denied 568 So.2d

1079 (La. 1990); reversed on other grounds State DOTD v.

Estate of Davis, infra, State DOTD v. Brookhollow of Alex-

andria, 578 So.2d 558 (La. App. 3rd Cir. 1991), writ denied

581 So.2d 709 (La. 1991).

As discussed above, the levee alignment selection

process has been long and controversial. Even as early as

1982, Judge Cassibry found that these Landowners had

suffered an unreasonable delay. Bayou des Familles

Development Corp. v. Corps of Engineers and Department

of Interior, 541 F.Supp. 1025 (USDC E.D. of La. 1982), af-

firmed 709 F.2d 713 (5th Cir. 1983) writ denied 465 U.S.

1065 (1984). This Court also finds as a fact that the Lan-

downers have suffered a substantial delay, and that they

are entitled to damages for that delay. While there are a

number of dates from which those damages can be

calculated, because the Landowners have only prayed for

delay damages from September 21, 197 9, and because this

is the latest date from which to calculate those damages,

this Court will award delay damages from that date.

In order to calculate delay damages, the Court must

apply an appropriate rate. The Landowners have offered

evidence to the Court that the appropriate rate is 10% per

year calculated on the value of the Property as of the date

the delay began. The Court finds this method, as suggested

by Dr. Ragas, reasonable and appropriate.

Therefore, the Court awards the following amounts

A-165

as delay damages.

Bayou des Familles Develop-

ment Corporation $15,642,664.00

Coast Quality Construction

Corporation 1,685,935.00

Betty Jane Perrin, wife of/and

Ronald J. Isaac ; 1,654,145.00

COSTS

This Court has the authority to award the Lan-

downers the costs, including expert witness fees, incurred

in this litigation. State DOTD v. Fakouri, 541 So.2d 291

(La. App. Cir. 1989) writ denied 544 Sao.2d 504 (La. 1989);

State DOTD v. Ford, 470 So.2d 389 (La. App. 3rd Cir.

1985). The amounts offered into evidence as costs by the

Landowners are uncontested. The Court finds as a fact that

under the circumstances of these cases, the amounts ex-

pended by the Landowners were appropriate. Therefore,

the Court awards the following amounts as costs:

Bayou des Familles Develop-

ment Corporation $136,305.35

Coast Quality Construction

Corporation 16,480.00

Betty Jane Perrin, wife of/and

Ronald J. Isaac 17,370.63

A-166

ATTORNEY’S FEES

The Court has the discretion to award attorney’s fees

in an amount not in excess of 25% of the difference between

the amount awarded and the amount deposited into the

registry by the West Jefferson Levee District. LSA-R.S.

38:387(E). Those factors to be considered in making an

award include: the complexity of the case, the responsibili-

ty required of the attorney, his skill, his knowledge and

diligence, the result obtained and the work performed.

State DOTD v. Estate of Davis, 572 So.2d 39, 45 (La. 1990);

State DOTD v. Hecker, 493 So.2d 125 (La. App. 5th Cir.

1986) writ denied 494 So.2d 325 (La. 1986).

These cases have presented the attorneys with a

complex historical problem which required extraordinary

skill and diligence to ferret out and present in a comprehen-

sible fashion. The presentation at trial was indicative of

substantial factual and legal investigation by the at-

torneys. it is apparent to this Court that the preparation of

these cases for trial required several thousand hours.

The Court feels that the case was well tried. The

courtesy and ability of the attorneys on both sides was evi-

dent, not only at trial but throughout pretrial proceedings.

Only one set of attorneys can win, and the winning

set of attorneys are entitled to attorney’s fees. This Court

feels obliged to award the Landowners’ attorney’s fees

equal to 25% of the difference between the compensation

awarded at trial and the amounts previously deposited into

the registry of Court. The Court awards the following

amounts as attorney’s fees:

A-167

Bayou des Familles Develop-

ment Corporation $8,189,114.00

Coast Quality Construction

Corporation 963,969.00

Betty Jane Perrin, wife of/and

Ronald J. Isaac 949,605.00

The Court is aware that the amounts awarded as at-

torney’s fees are substantial. This is because the issues in-

volved were very important. Our constitution requires that

these Landowners be awarded just compensation for their

property and this Court has endeavored to do that.

For the reasons cited above, judgment is granted in

favor of the Landowners, Bayou des Familles Development

Corporation, Coast Quality Construction Corporation, and

Betty Jane Perrin, wife of/and Ronald J. Isaac and against

the West Jefferson Levee District, in accordance with the

attached judgments.

Reasons for judgment signed this 27 day of

February, 1992, at Gretna, Louisiana.

/s/ illegible

JUDGE

A-168

APPENDIX D

24TH JUDICIAL DISTRICT COURT

FOR THE. PARISH OF JEFFERSON

STATE OF LOUISIANA

NO: 384-086

DIVISION “G*“

WEST JEFFERSON LEVEE DISTRICT

VS.

COAST QUALITY CONSTRUCTION CORPORATION

FILED: February 27, 1992 Illegible

DEPUTY CLERK

JUDGMENT

This matter came before the Court for trial on the

merits on September 16 through 20, and 28, 1991. The

above captioned case was consolidated for trial with:

A-169

WEST JEFFERSON LEVEE DISTRICT

VS.

BETTY JANE PERRIN, WIFE/OF AND RONALD J.

ISAAC

NO. 383-659

AND

WEST JEFFERSON LEVEE DISTRICT

VS.

BAYOU DES FAMILLES

DEVELOPMENT CORPORATION

NO. 376-286

The parties were represented by counsel as follows:

Harry C. Stumpf, Attorneys for West Jefferson

Owen J. Bordelon, Levee District

David C. Loeb, Attorneys for Coast Quality

Lawrence E. Chehardy, Construction Corporation

After considering the testimony of the witnesses, the

exhibits admitted into evidence, the applicable law, and the

argument presented by counsel in their respective post-

trial memoranda, for the reasons assigned in the Reasons

for Judgment presented with his Judgment, it is hereby

ORDERED, ADJUDGED AND DECREED that

there be judgment herein in favor of Coast Quality Con-

struction Corporation and against the West Jefferson

Levee District in the full sum of THREE MILLION,

A-170

EIGHT HUNDRED SIXTY EIGHT THOUSAND, NINE

HUNDRED THIRTY FIVE AND 00/100 ($3,868,935)

DOLLARS, less a credit for the sum previously deposited

in the amount of THIRTEEN THOUSAND FIFTY

EIGHT DOLLARS AND 00/100 ($13,058.00) DOLLARS,

for a total of THREE MILLION, EIGHT HUNDRED

FIFTY FIVE THOUSAND, EIGHT HUNDRED

SEVENTY SEVEN AND _ 00/100 ($3,855,877.00)

DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of Coast

Quality Corporation and against the West Jefferson Levee

District for all costs of these proceedings, including expert

witness fees, in the full sum of SIXTEEN THOUSAND

FOUR HUNDRED EIGHTY AND 99/100 ($16,480.99)

DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of Coast

Quality Construction Corporation and against the West

Jefferson Levee District for attorney’s fees in an amount

equal to TWENTY FIVE (25%) PERCENT of the just

compensation awarded, or NINE HUNDRED SIXTY

THREE THOUSAND NINE HUNDRED SIXTY NINE

AND 00/100 ($963,969.00) DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of Coast

Quality Construction Corporation and against the West

Jefferson Levee District awarding legal interest on the

amounts awarded herein from the date title vested in the

West Jefferson Levee District, that is, July 12, 1989, until

paid.

A-171

Judgment read, rendered and signed this 27 day of

February, 1992 at Gretna, Louisiana.

/s/ illegible

JUDGE

A-172

APPENDIX E

24TH JUDICIAL DISTRICT COURT

FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

NO: 376-286

DIVISION “G*

WEST JEFFERSON LEVEE DISTRICT

VS.

BAYOU DES FAMILLES

DEVELOPMENT CORPORATION, ET AL

FILED: February 27, 1992 Illegible

DEPUTY CLERK

JUDGMENT

This matter came before the Court for trial on the

merits on September 16 through 20, and 28, 1991. The

above captioned case was consolidated for trial with:

A-173

WEST JEFFERSON LEVEE DISTRICT

VS.

BETTY JANE PERRIN, WIFE/OF AND RONALD J.

ISAAC

NO. 383-659

AND

WEST JEFFERSON LEVEE DISTRICT

VS.

COAST QUALITY CONSTRUCTION CORPORATION

NO. 384-086

The parties were represented by counsel as follows:

Harry C. Stumpf, Attorneys for the West Jeffer-

Owen J. Bordelon, son Levee District

David C. Loeb, Attorneys for Bayou Des

Lawrence E. Chehardy Familles Development Corp.

After considering the testimony of the witnesses, the

exhibits admitted into evidence, the applicable law, and the

argument presented by counsel in their respective post-

trial memoranda, for the reasons assigned in the Reasons

for Judgment presented with his Judgment, it is hereby

ORDERED, ADJUDGED AND DECREED that

there be judgment herein in favor of Bayou Des Familles

A-174

Development Corporation and against the West Jefferson

Levee District in the full sum of THIRTY TWO

MILLION,

NINE HUNDRED SIXTY NINE THOUSAND, SIX

HUNDRED AND SIXTY FOUR ($32,969,664.00)

DOLLARS, less a credit for the sum previously deposited

in the amount of TWO HUNDRED THIRTEEN THOU-

SAND, TWO HUNDRED SIX AND 00/100 ($213,206.00)

DOLLARS, for a total of THIRTY TWO MILLION,

SEVEN HUNDRED FIFTY SIX THOUSAND, FOUR

HUNDRED FIFTY EIGHT AND 00/100 ($32,756,458.00)

DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of

Bayou Des Familles Corporation and against the West Jef-

ferson Levee District for all costs of these proceedings, in-

cluding expert witness fees, in the full sum of ONE-

HUNDRED THIRTY SIX THOUSAND, THREE HUN-

DRED FIVE DOLLARS AND 35/100 ($136,305.35)

DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of

Bayou Des Familles Development Corporation and against

the West Jefferson Levee District for attorney’s fees in an

amount equal to TWENTY FIVE (25%) PERCENT of the

compensation award, or EIGHT MILLION, ONE HUN-

DRED EIGHTY NINE THOUSAND, ONE HUNDRED

FOURTEEN AND 00/100 ($8,189,114.00) DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of

Bayou Des Familles Development Corporation and against

A-175

the West Jefferson Levee District awarding legal interest

on the amounts awarded herein from the date title vested

in the West Jefferson Levee District, that is, February 15,

1989, until paid.

Judgment read, rendered and signed this 27 day of

February, 1992 at Gretna, Louisiana.

/s/ illegible

JUDGE

A-176

APPENDIX F

24TH JUDICIAL DISTRICT COURT

FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

NO: 383-659

DIVISION “O“

WEST JEFFERSON LEVEE DISTRICT

VS.

BETTY JANE PERRIN, WIFE OF/AND RONALD J.

ISAAC

FILED: February 27, 1992 Illegible

DEPUTY CLERK

JUDGMENT

This matter came before the Court for trial on the

merits on September 16 through 20, and 28, 1991. The

above captioned case was consolidated for trial with:

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WEST JEFFERSON LEVEE DISTRICT

VS.

BAYOU DES FAMILLES

DEVELOPMENT CORPORATION

NO. 376-286

AND

WEST JEFFERSON LEVEE DISTRICT

VS.

COAST QUALITY CONSTRUCTION CORPORATION

NO. 384-086

The parties were represented by counsel as follows:

Harry C. Stumpf, Attorneys for the West Jeffer-

Owen J. Bordelon, son Levee District

David C. Loeb, Attorneys for Betty Jane Perrin,

Lawrence E. Chehardy wife of/and Ronald J. Isaac

After considering the testimony of the witnesses, the

exhibits admitted into evidence, the applicable law, and the

argument presented by counsel in their respective post-

trial memoranda, for the reasons assigned in the Reasons

for Judgment presented with his Judgment, it is hereby

ORDERED, ADJUDGED AND DECREED that

there be judgment herein in favor of Betty Jane Perrin,

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wife of/and Ronald J. Isaac and against the West Jefferson

Levee District in the full sum of THREE MILLION,

EIGHT HUNDRED TWENTY THREE THOUSAND,

ONE HUNDRED FORTY FIVE AND 00/100

($3,823,145.00) DOLLARS, less a credit for the sum

previously deposited in the amount of TWENTY FOUR

THOUSAND SEVEN HUNDRED TWENTY SIX AND

00/100 ($24,726.00) DOLLARS, for a total of THREE

MILLION SEVEN HUNDRED NINETY EIGHT THOU-

SAND FOUR HUNDRED NINETEEN AND 00/100

($3,798, 419.00) DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of Betty

Jane Perrin, wife of/and Ronald J. Isaac and against the

West Jefferson Levee District for all costs of these pro-

ceedings, including expert witness fees, in the full sum of

SEVENTEEN THOUSAND THREE HUNDRED

SEVENTY AND 63/100 ($17,370.63) DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of Betty

Jane Perrin, wife of/and Ronald J. Isaac and against the

West Jefferson Levee District for attorney’s fees in an

amount equal to TWENTY FIVE (25%) PERCENT of the

just compensation awarded, or NINE HUNDRED FORTY

NINE THOUSAND SIX HUNDRED FIVE AND 00/100

($949,605.00) DOLLARS.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of Betty

Jane Perrin, wife of/and Ronald J. Isaac and against the

West Jefferson Levee District awarding legal interest on

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the amounts awarded herein from the date title vested in

the West Jefferson Levee District, that is, July 7, 1989, un-

til paid.

Judgment read, rendered and signed this 27 day of

February, 1992 at Gretna, Louisiana.

/s/ illegible

JUDGE