author: KEATY, Judge.

text:
    Stacey A. RYAN, et al. v. CALCASIEU PARISH POLICE JURY, et al.
    17-16
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    W. Joe Mize, Matthew M. Mize, Robichaux, Mize, Wadsack, Richardson & Watson, L.L.C., Post Office Box 2065, Lake Charles, Louisiana 70602, (337) 433-0234, Counsel for Defendant/Appellant: Lake Charles Harbor & Terminal District
    Marshall J. Simien, Jr., Simien Law Firm, 2129 Fitzenreiter Road, Lake Charles, Louisiana 70601, (337) 497-0022, Counsel for Defendant/Appellant: Lake Charles Harbor & Terminal District
    Russell J. Stutes, Jr., Stutes & Lavergne, LLC, 600 Broad Street, Lake Charles, Louisiana 70601, (337) 433-0022, Counsel for Intervenors/Appellees: Vernon Christopher Meyer, Carla Michelle Meyer
    Patrick D. Gallaugher, Jr., Scofield, Gerard, Pohorelsky, Gallaugher & Landry, LLC, Post Office Drawer 3028, Lake Charles, Louisiana 70602, (337) 433-9436, Counsel for Defendants/Appellees: Calcasieu Parish Police Jury, Calcasieu Parish Planning and Zoning Board
    Terrence D. McCay, Sarah W. Anderson, Kean Miller, LLP, Post Office Box 3513, Baton Rouge, Louisiana 70821, (337) 430-0350, Counsel for Defendant/Appellee: Sasol Chemicals (USA), LLC
    Stephen W. Glusman, Director of Corporate and Legal Affairs, Port of Greater Baton Rouge, Post Office Box 380, Port Allen, Louisiana 70767, (225) 342-1660, Counsel for Amicus Curiae: Greater Baton Rouge Port Commission
    Jacque B. Pucheu, Jr., Pucheu, Pucheu & Robinson, LLP, Post Office Box 1109, Eunice, Lousiana 70535, (337) 457-9075, Counsel for Amicus Curiae: Greater Krotz Springs Port Commission
    Melissa Folse, Attorney at Law, 171 Belle Terre Boulevard, Laplace, Louisiana 70068, (985) 652-9278, Counsel for Amicus Curiae: Port of South Louisiana
    James M. Garner, Joshua S. Force, Ashley G. Coker, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., 909 Poydras Street, Twenty-Eighth Floor, New Orleans, Louisiana 70112, (504) 299-2100, Counsel for Amicus Curiae: St. Bernard Port, Harbor & Terminal District
    Dannye W. Malone, Director of Legal Affairs, 6000 Doug Attaway Boulevard, Shreveport, Louisiana 71115, (318) 524-2272, Counsel for Amicus Curiae: Caddo-Bossier Parishes Port Commission
    J. Kendall Rathburn, Kailey L. Leboeuf, Robert L. Seegers, Dwyer Cambre & Suffern, A.P.L.C., 3000 West Esplanade Avenue, Suite 200, Metairie, Louisiana 70002, (504) 838-9090, Counsel for Amicus Curiae: Plaquemines Port, Harbor & Terminal District
    Leah D. Sumrall, Crigler, LeBeau & Sumrall, 1808 Roselawn Avenue, Monroe, Louisiana 71201, (318) 807-7100, Counsel for Amicus Curiae: Lake Providence Port Commission
    Glen A. James, Attorney at Law, 1523 Cypress Street, Sulphur, Louisiana 70663, (337) 527-6388, Counsel for Amicus Curiae: West Calcasieu Port
    Danna E. Schwab, Attorney at Law, 7847 Main Street, Houma, Louisiana 70360, (985) 868-1342, Counsel for Amicus Curiae: Terrebonne Port Commission
    Thomas Louis Colletta, Jr., Attorney at Law, Post Office Box 60046, New Orleans, Louisiana 70160, (504) 528-3228, Counsel for Amicus Curiae: Board of Commissioners, Port of New Orleans
    Bryce Autin, Attorney at Law, 16829 East Main Street, Cut Off, Louisiana 70354, (985) 632-1113, Counsel for Amicus Curiae: Greater Lafourche Port Commission
    Edwin Moberley, Attorney at Law, 607 East Askew Street, Tallulah, Louisiana 71282, (318) 574-3133, Counsel for Amicus Curiae: Madison Parish Port Commission
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge.

The Lake Charles Harbor and Terminal District (the District) appeals a judgment granting a preliminary injunction in favor of Vernon Christopher Meyer and Carla Michelle Meyer (the Meyers) and barring the District from expropriating a tract of their property in Westlake, Louisiana. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Sasol Chemicals (USA), L.L.C. (Sasol), a South African company doing business in the United States, is currently constructing and developing a new chemical facility known as the Sasol Megaproject in Calcasieu Parish. The Meyers own more than five acres of landlocked residential and commercial property (hereafter "the property") in the site where the Megaproject is being constructed. Mr. Meyers operates his business, M & D Construction, on the property, which is located near many of M & D Construction's industrial clients. For several years, Sasol made offers to the Meyers for the purchase of their property, but no agreement was reached between them due to the Meyers' belief that Sasol's offers did not reflect the fair market value of their property.

During a November 17, 2014 meeting of the District's Board of Commissioners (the Board), Resolution 2014-056 (the Resolution) was unanimously adopted, whereby the District made findings and provided "certain assurances with respect to the acquisition of property needed" for the Megaproject. The Board noted in the Resolution that in 2011, the District had been "instrumental in obtaining, for the benefit of SASOL, a six hundred (600) acre parcel ... within the territorial limits of the District ... which enabled Sasol to choose the Southwest Louisiana area for the Sasol Megaproject over another competing location in Canada." It further explained that the Megaproject would be built with "heavy equipment and large modules that will be pre-assembled off-site and delivered by vessels berthed at a dock in close proximity to the Plant Site Property which will then be transported overland to the Plant Site Property." According to the Resolution, Sasol intended to make a "$16-$21 billion capital investment" for its Megaproject, the construction and operation of which would "promote economic development in the area." The Resolution stated that Sasol had purchased the majority of properties within the proposed site of the Megaproject and that it needed the District's help in acquiring the remaining twenty-four privately owned properties. The Resolution authorized and directed the District "to take all steps deemed necessary and appropriate" to acquire ownership of, by voluntary purchase or quick-take expropriation, those needed properties, one of which was owned by the Meyers.

In January 2015, the Meyers filed a petition for intervention joining another affected homeowner in an action he had filed in the trial court challenging the District's expropriation authority and seeking injunctive and declaratory relief. The District made a written offer to purchase the Meyers' property, for an amount approximately $2,000,000 less than what the Meyers had been offered by Sasol in April 2015. The Meyers rejected the District's offer and made a counteroffer. Soon afterward, the Meyers filed an amended petition of intervention to seek a judicial declaration that the Resolution violated and was not authorized by the Louisiana Constitution.

By letter dated August 8, 2016, the District declined to accept the Meyers' counteroffer. The letter contained a warning that should the parties be "unable to agree to a voluntary transfer" of the property, "the District intends to proceed with initiated legal proceedings to expropriate " the property through the methods authorized in the Louisiana Constitution and the Louisiana Revised Statutes. (Emphasis added).

Following an August 31, 2016 evidentiary hearing, the trial court granted a preliminary injunction in favor of the Meyers, "enjoining and barring" the District from expropriating any portion of their property located at 2755 Houston River Road in Westlake, Louisiana. The District now appeals, asserting in its sole assignment of error that the trial court abused its discretion in enjoining it "from exercising its constitutional right to file suit to expropriate the Meyers' property."

DISCUSSION

"A trial court's determination as to whether to issue a preliminary injunction is subject to the abuse of discretion standard of review." Mount Zion Missionary Baptist Church v. Jones , 11-961, p. 4 (La.App. 3 Cir. 2/1/12), 84 So.3d 674, 678. Louisiana Code of Civil Procedure Article 3601(A) provides, in pertinent part, that "[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law." "One generally recognized purpose of a preliminary injunction is to preserve the status quo during the pendency of further judicial proceedings...." S. Cent. Bell Tel. Co. v. La. Pub. Serv. Comm'n , 555 So.2d 1370, 1373 (La.1990).

A petitioner is entitled to injunctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right . South Cent. Bell Tel. Co. v. Louisiana Pub. Serv. Comm'n , 555 So.2d 1370 (La. 1990). Once a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists .

Jurisich v. Jenkins , 99-76, p. 4 (La. 10/19/99), 749 So.2d 597, 599 (emphasis added).

Louisiana Constitution Article I, § 4 (emphasis added) provides in pertinent part as follows:

(A) Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
(B)(1) Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Except as specifically authorized by Article VI, Section 21 of this Constitution[ ] property shall not be taken or damaged by the state or its political subdivisions: (a) for predominant use by any private person or entity; or (b) for transfer of ownership to any private person or entity.

This court has held that a person's right to own private property "is held subject to the right of expropriation, when required by public interest and necessity." Town of Broussard v. Ducrest , 98-838, p. 3 (La.App. 3 Cir. 12/9/98), 722 So.2d 1174, 1176.

Although the state has wide discretion in expropriation matters, it is entitled to take only what it needs for public purposes and will not be permitted to take more than what is reasonably sufficient and suitable for its particular need. State v. Landry , 507 So.2d 252, 254 (La.App. 3d Cir.), writ denied , 513 So.2d 290 (La.1987). An expropriation beyond the public interest is illegal and unconstitutional . Calcasieu-Cameron Hosp. Serv. Dist. v. Fontenot , 628 So.2d 75, 78 (La.App. 3d Cir.1993), writ denied , 94-0168 (La. 3/18/94), 634 So.2d 854 ; Landry , 507 So.2d at 254. Furthermore, "expropriation 'is special and exceptional in character, in derogation of common right, and must be strictly construed .' " [ State v. ] Jeanerette Lumber [& Shingle Co. , 350 So.2d 847,] 855-56 [La. 1977], quoting Orleans-Kenner Elec. Ry. Co. v. Metairie Ridge Nursery Co. , 136 La. 968, 68 So. 93 (1915).

State, Dep't of Transp. & Dev. v. Estate of Griffin , 95-1464, p. 3 (La.App. 1 Cir. 2/23/96), 669 So.2d 566, 568 (emphasis added).

In 2006, the Louisiana Legislature amended this state's constitution to provide a statutory definition of the term "public purpose," which had previously been undefined. Significantly, La.Const. art. I, § 4 (B)(3) now provides that: "[n]either economic development, enhancement of tax revenue, or any incidental benefit to the public shall be considered in determining whether the taking or damaging of property is for a public purpose pursuant to Subparagraph (1) of this Paragraph or Article VI, Section 23 of this Constitution." (Emphasis added).

As a political subdivision of this state, the District is authorized to purchase or expropriate property for any public purpose consistent with the constitution and general laws of this state. See La.R.S. 34:201 and La.Const. art. VI, § 23. The aforementioned Industrial Inducement Statute authorizes public ports to lease or acquire property, through various methods including expropriation, to "induce and encourage the location of or addition to industrial enterprises therein which would have economic impact upon the area and thereby the state." La.Const. art. VI, § 21 (A). Nevertheless, that authorization expressly prohibits the direct or indirect sale or donation of any property expropriated thereunder to any foreign corporation, and properties with a homestead exemption "shall not be subject to expropriation pursuant to this Section." La.Const. art. VI, § 21 (B) & (D).

The basis of the District's appeal is the principle that its "right to expropriate cannot be determined outside of an expropriation suit." Mansfield Ne. R.R. Co. v. Nabors , 135 La. 807, 811, 66 So. 229, 230 (1914). Similarly, the District directs this court's attention to another long-ago made statement by our supreme court that "nothing is better settled than that injunction will not lie to prevent the bringing of a suit." Schumert-Warfield-Buja v. Buie , 148 La. 726, 727, 87 So. 726 (1921). More specifically, the District asserts that injunctive relief is inappropriate in this case because were it to file suit to expropriate the Meyers' property, even by a quick-taking, the procedures listed in Title 19 will allow the Meyers to assert their objections to the expropriation and the safeguards provided therein will prevent the Meyers from suffering any irreparable injury. Along those lines, the District points out that the supreme court has held that the quick-taking expropriation statutes are constitutional. See State, through Dep't of Highways v. Olinkraft, Inc. , 350 So.2d 865 (La. 1977), cert. denied , 435 U.S. 924, 98 S.Ct. 1489, 55 L.Ed.2d 518 (1978). Finally, the District argues that whether the expropriation it threatened against the Meyers is constitutional is irrelevant for purposes of whether it should have been enjoined from expropriating the Meyers' property.

The Meyers counter that the District's arguments are fundamentally flawed because they rest on the incorrect assumption that the District has the lawful right to expropriate their property. The Meyers insist that the Resolution authorizing the District to expropriate their property is unconstitutional because it fails to articulate a public purpose beyond that of a general benefit to the local economy, which the Louisiana Constitution now forbids consideration of in determining if the taking is for a public purpose. Instead, the Meyers submit that the sole purpose of the Resolution is to deprive them of their private property for the sole benefit of another private, for-profit, foreign-controlled company. According to the Meyers, the District's actions in this matter amount to nothing short of the selling of its expropriation powers.

The Meyers direct this court's attention to a recent supreme court decision that discusses the limits of a public port's expropriation power. See St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc. , 17-434 (La. 1/30/18), 239 So.3d 243. In Violet Dock , the St. Bernard Port filed a quick-take expropriation suit seeking to acquire a nearby privately-owned dock facility to expand its own cargo facilities. Testimony was presented in the trial court that "there was no other space in St. Bernard Parish where a bulk terminal facility could be constructed on the river." Id. at 247. The trial court found that the taking served a valid public purpose, which finding was affirmed by the fourth circuit and a divided supreme court. On June 11, 2018, the United States Supreme Court docketed a petition for certiorari filed by the defendant/owner of the private dock in Violet Dock .

The Meyers called one witness at the August 31, 2016 hearing on their motion for preliminary injunction, William J. Rase, III, Executive Director of the Port of Lake Charles (the Port). Mr. Rase testified that he was present at the November 17, 2014 meeting during which the Board approved the Resolution. According to Mr. Rase, the Port had "entered into an agreement with Sasol for a lease on a dock and then to provide what was required to have them go forward with their expansion" before it passed the Resolution. Mr. Rase confirmed that were it not for Sasol's Megaproject, the District would not have looked at acquiring the Meyers' property .

The other evidence that the Meyers entered into the record at the preliminary injunction hearing included the aforementioned correspondence between the District and the Meyers; a letter from the Calcasieu Parish Assessor, verifying that the Meyers' property has a homestead exemption; and a copy of a Receipt, Release, and Indemnification Agreement between Ryan and the District showing that they had entered into a settlement of Ryan's claims against them in this matter for the sum of $291,666.67. Upon questioning by the Meyers' attorney, Mr. Rase agreed that given the sizes of the properties, the District was paying Ryan $145.00 per square foot versus the less than $4.00 per square foot that the District offered to the Meyers when it issued the ultimatum to them several weeks before. The District did not offer any exhibits at the preliminary injunction hearing.

After hearing closing arguments, the trial court expressed its opinion that, contrary to what was provided in the Resolution, Sasol had not exhausted its efforts to voluntarily acquire the Meyers' property. Referencing the appraisal attached to the letter in which the Meyers made a counteroffer to the District's offer to buy their property, the trial court noted that given "what's being paid on the fair market, it would be wrong for this court not to intervene." Ultimately, the trial court found that the District had improperly agreed "to do for Sasol that which Sasol can do for itself." Accordingly, the trial court enjoined the District from filing suit to expropriate the Meyers' property.

We conclude that the Meyers met their burden of making "a prima facie showing" that the Resolution authorizing the taking of their property is unconstitutional because: 1) there is no public purpose to support it, in violation of La.Const. art. I, § 4 ; 2 ) their property would be transferred to a foreign-controlled entity, in violation of La.Const. art. VI, § 21 (B); and 3) their property is covered by a homestead exemption and, thus, cannot be expropriated per La.Const. art. VI, § 21 (D). See Jurisich , 749 So.2d at 599. Finally, we find it important to note that the District put the Meyers between a rock and a hard place by threatening to expropriate their property if they refused to accept what the trial court found to be a low-ball offer. In addition, the District stands behind its Resolution to expropriate the Meyers' property, and it refuses to address the Meyers' claims of its unconstitutionality, insisting that even if the Meyers' claims are valid, they will not suffer any irreparable injury because their objections can be addressed in the expropriation suit, should the District ever choose to file one. Given the circumstances, we conclude that the Meyers' right to own private property must prevail over those of the District. Our conclusion is bolstered by the fact that the United States Supreme Court has chosen to review, on a petition for certiorari, Violet Dock , despite the fact that the St. Bernard Port made a stronger, yet arguably questionable, argument as to the existence of a valid public purpose for expropriation in that matter.

For the foregoing reasons, we conclude that the trial court did not abuse its great discretion in granting a preliminary injunction barring the District from filing suit to expropriate the Meyers' property. This matter will be remanded for the trial court to determine the constitutionality of the Resolution authorizing the District to expropriate the Meyers' property.

DECREE

The judgment of the trial court granting a preliminary injunction in favor of Vernon Christopher Meyer and Carla Michelle Meyer, enjoining the Lake Charles Harbor and Terminal District from expropriating their property at 2755 Houston River Road in Westlake, Louisiana is affirmed. This matter is remanded to the trial court to hold a hearing to determine whether the Resolution is unconstitutional such that the District should be permanently enjoined from enforcing it.

JUDGMENT AFFIRMED. REMANDED WITH INSTRUCTIONS.

      The Meyers entered Resolution 2014-056 into the record as an exhibit at the hearing on their request for preliminary injunction.

      In October 2014, Mr. Stacey Ryan had filed in the Fourteenth Judicial District Court an appeal of the decision of the Calcasieu Parish Police Jury (CCPJ) to rezone his family's property from residential to heavy industrial use. Subsequently, Mr. Ryan amended his petition to add the District as a defendant and seeking to enjoin the District from expropriating his property and to obtain a declaratory judgment finding that his property cannot be subject to expropriation by the District. All of the claims Mr. Ryan asserted in this action have been dismissed, and he is no longer a party to this matter. The Meyers' intervention named only the District as a defendant.

      The amended petition adopted by reference paragraphs six through ten of the Meyers' original petition of intervention, which provided as follows:
      6.
      ... Port of Lake Charles Resolution, number 2014-054, also authorized the Port of Lake Charles to expropriate the Meyers' property for the benefit of Sasol Chemicals (USA), LLC ("Sasol") through a long term lease (indirect sale) by the Port of Lake Charles to Sasol.
      7.
      Sasol is a company wholly owned by a foreign or alien, South African, corporation.
      8.
      In its November 17, 2014 resolution, the Port of Lake Charles failed to identify any public purpose for expropriation of Mr. Ryan or the Meyers['] property as "public purpose" is defined in Article I, Section 4 of the Louisiana State Constitution. Further, the resolution also fails to identify any necessary purpose for the expropriation of the Meyers' property as the Meyers['] property is currently subject to an offer by the Meyers to sell said property to Sasol for close to its appraised value. The offer by the Meyers has been outstanding for months. Said expropriation by the Port of Lake Charles is completely unnecessary as there or [sic] no title problems with the Meyers' ownership and a consensual sale of the property could be confected tomorrow if Sasol would simply agree to a consensual transaction.
      9.
      A portion of the Meyers' property at 2755 Houston River Road is a bona fide homestead and is subject to homestead exemption under the Louisiana Constitution.
      10.
      Said Property also does not contain any "industrial plant buildings, industrial plant equipment, machinery, furnishing, or appurtenances and further does not contain any public port facilities or operations."

      This matter has previously been before this court. By judgment dated July 1, 2015, the trial court granted the District's exception of no cause of action with respect to the declaratory relief sought by the Meyers and denied the District's exceptions of no right of action and prematurity with regard to the injunctive relief sought by the Meyers. The District sought supervisory writs, which this court and the supreme court denied. Ryan v. Cal c asieu Parish Police Jury , 15-577 (La.App. 3 Cir. 8/11/15), writ denied , 15-1661 (La. 11/16/15), 184 So.3d 26.

      Louisiana Constitution Article VI, § 21, titled Assistance to Local Industry, is commonly referred to as an Industrial Inducement Statute.

      The fourth circuit made the following observations in New Orleans Redevelopment Authority v. Burgess , 08-1020, pp. 12-13 (La.App. 4 Cir. 7/8/09), 16 So.3d 569, 578 (footnotes omitted), writs denied , 09-1982, 09-1981 (La. 9/23/09), 18 So.3d 65, 66:
      On June 23, 2005, two months before [Hurricane] Katrina, the United States Supreme Court in Kelo v. City of New London, Connecticut, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), struck an apparent blow against property owners when it ruled in favor of a local government's using eminent domain to "upwardly mobilize" realty that might yield more financial return for the local government or boost economic development for the community. Kelo permitted a government agency to expropriate private land which was not blighted to transfer it to a more lucrative enterprise and hopefully thereby increase tax revenue and bring new jobs or, as Justice O'Connor said in a strong dissent: "to replace Motel-6 with a Ritz-Carlton."
      Galvanized by the implications of the ruling, state legislatures nationwide responded by passing statutes to contain or curtail what was viewed as overreaching judicial activism....
      In the first regular session of the Louisiana Legislature following Hurricane Katrina and Kelo , more than twenty-one separate bills were introduced.... The legislators nearly unanimously agreed with Justice O'Connor's dissent in Kelo and rejected expropriation of non-blighted property for economic development and transfer to a private party.

      Title 19 of the Louisiana Revised Statutes provides a mechanism for a port authority who files a suit for the expropriation of property to acquire title to the property "prior to judgment in the trial court." La.R.S. 19:141. Such expropriation proceedings are referred to as "quick takings." Alderdice v. Bd. of Sup'rs of Louisiana State Univ. & Agric. & Mech. Coll. , 12-148, p. 5 (La.App. 4 Cir. 7/25/12), 107 So.3d 7, 10. Title 19 prescribes the requirements that shall be contained in a petition for expropriation, including an estimate of what would be "just and adequate compensation for the taking." La.R.S. 19:142. Once the expropriating authority deposits the amount of the estimate into the court's registry, "title to the property ... shall vest" in the expropriating authority while the "right to just and adequate compensation therefor shall vest" in the former property owner. La.R.S. 19:145. Once properly served with notice of the expropriation suit, a defendant has twenty days to file a motion to dismiss "to contest the validity or extent of the taking on the ground that the property was not expropriated for a public use," failing which any defense he may have to the suit will be deemed waived, except for his right to just compensation. La.R.S. 19:145(A) and (B).

      As the Meyers correctly note about Mansfield , "when this injunction petition was filed the said railroad company had, as yet, made no attempt to expropriate, or even expressed any intention of ever making any move in that direction."Mansfield , 66 So. at 230.

      Violet Dock also involved issues of just compensation and damages that are not relevant to this appeal.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    James M. BIGLANE and Charlotte Biglane Nobile v. BOARD OF COMMISSIONERS, FIFTH LOUISIANA LEVEE DISTRICT, et al.
    18-100 18-101
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Randall Alan Smith, Tiffany Hawkins Davis, Mary Nell Bennett, Smith & Fawer, 201 St. Charles Ave., Suite 3702, New Orleans, LA 70170, (504) 525-2200, COUNSEL FOR PLAINTIFFS/APPELLEES: James M. Biglane, Charlotte Biglane Nobile
    Patrick Bayard McIntire, Oats & Marino, 100 East Vermilion Street, Suite 400, Lafayette, LA 70501, (337) 233-1100, COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District
    Madaline Cross Gibbs, Seventh Judicial District Court Assistant District Attorney, P.O. Box 600, Harrisonburg, LA 71340, (318) 336-5526, COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District
    John D. Crigler, Jr., Bishop Paxton Crigler & Moberley, P.O. Box 97, St. Joseph, LA 71366, (318) 766-4892, COUNSEL FOR DEFENDANT/APPELLANT: Board of Commissioners for the Fifth Louisiana Levee District
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   EZELL, Judge.

These consolidated appeals concern the taking of land by the Fifth Louisiana Levee District Board of Commissioners (FLD) for a project to raise and strengthen the levee in Concordia Parish lying between Louisiana Highway 131 and the Mississippi River. At issue is whether the property used for the project was uncompensable batture pursuant to La.Const. Art. 6, § 42, and whether the property had been previously appropriated. Additionally, there is the issue of whether the FLD should have raised these issues as affirmative defenses, resulting in the exclusion of much of its evidence. The award of attorney fees and costs are also at issue.

FACTS

James Biglane and his sister, Charlotte Biglane Nobile, (collectively referred to as the Biglanes) co-owned approximately 3,000 acres of land in Concordia Parish next to the Mississippi River. The property is known as the Scotland and Genevieve Plantations. A levee existed on the property. Pursuant to La.R.S. 38:281(6), a levee district is "a political subdivision of this state organized for the purpose and charged with the duty of constructing and maintaining levees, and all other things incidental thereto within its territorial limits."

Pursuant to its authority under La.R.S. 38:281(6), the FLD sent a letter to the Biglanes on July 14, 2008, notifying them that on July 9, 2008, the FLD adopted a Resolution of Appropriation for Louisiana lands required for rights-of-way for a project known as Levee Enlargement and Berms, Item 361-R. The FLD attached information to the letter indicating that it needed approximately eighty acres of dirt from the Biglanes' property for the project.

Jason Trichelle, superintendent of operations for the FLD, testified that the FLD's primary responsibility is to maintain the Mississippi River levee and the Concordia backwater levee. He stated that the levee on the Biglane property was an intact levee but deficient in regard to the rest of the system. Mr. Trichelle explained that a record flood occurred in 2011 and, had the project at issue not been completed, it would have impacted all of Concordia Parish, including the Biglane property. Mr. Trichelle testified that the federal government pays for construction of the levee and the levee districts acquire the needed land, which is paid for by the State. He explained that the Corps of Engineers determines the least environmental impact and best potential borrow area and sends a right-of-way request to the levee district. The Louisiana Department of Transportation and Development (DOTD) prepares the ownership map and prepares the batture determination. The DOTD then determines whether the property should be appropriated or expropriated. Subsequently, the FLD determines the compensation based on appropriation or expropriation.

Lee Hines, vice president of Chustz Surveying, testified that his company performed a topographic survey of the property for the project. He presented the survey results to the Corps of Engineers indicating the elevation of the property.

Terry Lightsey, a licensed surveyor, was asked to determine the locations where dirt was previously removed from the property and draw a right-of-way map. To perform this task, he used old maps from the FLD and Corps of Engineers. Mr. Lightsey went to the property in May 2007 and measured distances based on the older maps to determine what right-of-way had previously been acquired versus what right-of-way was needed for the project. He explained that the area needed for the project was Parcel 3-3 on the river side of the levee, which contained 65.145 acres, and Parcel 3-2 on the land side of the levee, which contained 17.223 acres.

Paul Colquette, a civil engineer who worked with the DOTD, was asked to calculate the amount of batture in Parcel 3-3. He explained that the DOTD serves as the engineer for levee districts. He determined that there were 22.7 acres of batture outside the existing right-of-way in Parcel 3-3.

David Gullette, a real estate appraiser, appraised Parcels 3-2 and 3-3 of the Biglane property using the information from Mr. Lightsey and Mr. Colquette. He determined that Parcel 3-2, the land side, had a value of $5,500.00 an acre and Parcel 3-3, the river side, had a value of $3,300.00 an acre. He also took into consideration improvements on the land and the amount of batture which was needed. On February 27, 2009, the FLD sent a letter making an offer to the Biglanes for Parcels 3-2 and 3-3 for $335,287.00 for the property for the Mississippi River Levee Raising Project Item 361-R based on Mr. Gullette's appraisal.

Unsatisfied with the determinations of batture and prior takings, the Biglanes filed suit on July 2, 2009, seeking compensation and damages for the taking of their property. Named as defendants were the FLD and the DOTD. On September 25, 2013, the Biglanes filed a motion for partial summary judgment, requesting that the trial court declare that their property is neither subject to a pre-existing servitude, nor is it batture. The Biglanes filed another motion for partial summary judgment on December 18, 2015, asking that the trial court render judgment that the FLD owes compensation for the areas it claims are batture and subject to a pre-existing servitude. Summary judgment was denied on February 29, 2016.

On May 16, 2016, the FLD and the DOTD filed a motion for partial summary judgment asking that the court enter judgment that the property is riparian; that the ordinary high water mark is 62 feet at the property, with all property on the river side of the levee below that elevation being batture; and that the acreage on the river side of the levee that is above 62 feet is just under fourteen acres. The trial court entered judgment denying the motion for summary judgment on July 15, 2016.

After a five-day trial in November 2016, the trial court rendered judgment dismissing the DOTD. Having deferred its ruling on existence of batture or of a pre-existing servitude until the end of trial, the trial court stated in reasons for judgment that it was not allowing any evidence as to these issues, ruling that they were affirmative defenses that had not been pled. The trial court further stated that, even if the evidence had been admissible, the FLD failed to meet its burden of proof regarding the issues of batture or a pre-existing servitude. Judgment was rendered on April 24, 2017, in favor of the Biglanes and against the FLD in the amount of $1,397,500.00, subject to a credit of $335,287.00, which was paid on June 25, 2013. At the request of the parties, attorney fees, expert fees, and costs were to be determined later. A judgment was rendered pursuant to La.R.S. 38:301(C)(2)(f) on June 15, 2017, awarding $265,553.25 in attorney fees based on a calculation of 25% of the net amount of judgment, which was $1,062,213.00 after the credit. An amended judgment was signed on June 19, 2017, to correct a clerical error. The FLD appealed the judgment of the trial court, and the Biglanes answered the appeal.

EVIDENTARY RULINGS

The FLD first claims that the trial court erred in finding that batture is an affirmative defense that must be raised in the pleadings and excluding evidence on this issue. The FLD argues that batture is a criterion used to calculate just compensation for a riparian levee appropriation. Fourteen exhibits pertaining to batture were excluded from the evidence but were admitted as proffered evidence during the presentation of evidence and again, by the FLD, at the close of trial. Of the fourteen exhibits, the FLD argues that seven of them were improperly excluded as to the issue of batture.

An affirmative defense must be specifically pled in the answer. La.Code Civ.P. art. 1005. "The determination of whether an issue is an affirmative defense is a question of fact resolved by examining the circumstances of the individual case." Hyatt v. Mutual of Omaha Ins. Co. , 14-282, p. 14 (La.App. 3 Cir. 10/1/14), 149 So.3d 406, 415. "[A]n affirmative defense raises a new matter or issue that will defeat the plaintiff's claim on the merits, even assuming that claim is valid and that the allegations of the petition are true." Fishbein v. State ex rel. LSU Health Sciences Ctr. , 06-549, p. 6 (La.App. 1 Cir. 3/9/07), 960 So.2d 67, 71-72, writs denied , 07-730, (La. 6/22/07), 959 So.2d 495 ; 07-708, (La. 6/22/07), 959 So.2d 505. "The new matter must be one, however, that is not raised in the plaintiff's petition." Sher v. Lafayette Ins. Co. , 07-2441, 07-2443, p. 23 (La. 4/8/08), 988 So.2d 186, 204. A defendant need not raise an issue that is not a new matter. Fishbein , 960 So.2d 67. "Where a defense to a plaintiff's claim arises by operation of the very law under which the plaintiff is seeking recovery, the defense need not be affirmatively pleaded and there can be no unfair surprise, since no one may avail himself of ignorance of the law." Id. at 72.

Louisiana Constitution Article 6, § 42 (A)(emphasis added) provides for compensation for land used or destroyed for levee purposes as follows:

Notwithstanding any contrary provision of this constitution, lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes shall be paid for as provided by law. With respect to lands and improvements actually used or destroyed in the construction, enlargement, improvement, or modification of federal or non-federal hurricane protection projects, including mitigation related thereto, such payment shall not exceed the amount of compensation authorized under Article I, Section 4(G) of this constitution. However, nothing contained in this Paragraph with respect to compensation for lands and improvements shall apply to batture or to property the control of which is vested in the state or any political subdivision for the purpose of commerce. If the district has no other funds or resources from which the payment can be made, it shall levy on all taxable property within the district a tax sufficient to pay for property used or destroyed to be used solely in the district where collected.

Furthermore, La.R.S. 38:301(C)(1)(a) (emphasis added) also provides for compensation taken for levee purposes and provides: "[a]ll lands, exclusive of batture , and improvements hereafter actually taken, used, damaged, or destroyed for levee or levee drainage purposes shall be paid for at fair market value to the full extent of the loss."

The Biglanes are claiming compensation for property taken for levee enlargement purposes. Payment for batture is specifically excluded by statute. As explained in Fishbein , 960 So.2d at 72, "it is simply part of the mandatory statutory framework" that determines compensation for land taken or destroyed for levee purposes. The trial court erred in finding that the FLD had to plead the issue of batture as an affirmative defense and in excluding evidence on that issue.

In its written reasons, the trial court stated that it was excluding evidence based on the Biglanes' objections for failure to plead affirmative defenses prior to trial. On appeal, the Biglanes complain that the trial court could have excluded the evidence of batture on other grounds they asserted at trial, including hearsay, authenticity, cumulative effect, demonstrative only, relevance, and lack of foundation. However, the Biglanes do not brief this argument. According to the Uniform Rules-Louisiana Courts of Appeal, Rules 2-12.4 and 2-12.5, issues not briefed on appeal are deemed abandoned.

Regardless, we do find that the seven exhibits would have been properly admissible. Exhibits D-18, D-19, and D-20 were prepared by Mr. Colquette and offered during his testimony. He explained that the DOTD serves as the engineer for levee districts. The documents were maps prepared by Mr. Colquette and the information he used in calculating what constituted batture. Mr. Colquette testified at trial regarding the information and process he used in preparing the documents.

Exhibit D-24 was prepared by Michael Mayeaux, an expert land surveyor who testified at trial. It is a topographic survey based on Mr. Lightsey's calculations. Mr. Mayeaux's survey indicates his calculation of the area of non-compensable batture.

Exhibits D-25 and D-26 were prepared by the Biglanes' expert, Dr. Frank Willis, as part of his report but admitted during the testimony of Mr. Mayeaux. The exhibits were LIDAR images using two different high-water elevations. Exhibit D-34 is a photograph taken by Dr. Willis of the property, who testified that he went to the property and took the picture from a canoe. At trial, Dr. Willis explained that the picture was taken in 2015, after the levee work was performed. These witnesses authenticated the documents and were subject to cross-examination.

STANDARD OF REVIEW

Having determined that the trial court should have considered the above excluded evidence, we will now determine if the evidence affects the judgment. If the exclusion of evidence taints a trial court's review, the reviewing court should conduct a de novo review of the admissible evidence to ensure a fair trial and a fair judgment. Walker v. Hixson Autoplex of Monroe, L.L.C. , 51,758 (La.App. 2 Cir. 11/29/17), 245 So.3d 1088. Not every evidentiary exclusion requires a de novo review. Id. A de novo review should be limited to those circumstances where "the error prejudiced or tainted the trial court's finding with regard to a material factual issue." Id. at 1094.

In the present case, the trial court stated in written reasons for judgment that even if it considered the excluded evidence, it would find that the FLD failed to meet its burden of proof regarding batture. The trial court had the benefit of viewing the proffered evidence and hearing the testimony in this case. Therefore, we find it appropriate to apply the manifest error standard of review to the trial court's findings as the trial court allowed FLD to put forth evidence regarding batture, deferring ruling on its admissibility until after the trial.

BATTURE

Louisiana Civil Code Article 665 provides for a legal public servitude for the making or repairing of levees on the shores of navigable rivers. Louisiana Constitution Article 6, Section 42, "exempts the state and political subdivisions from compensating riparian landowners for the exercise of its levee servitude when the lands actually used or destroyed for levee or levee purposes are 'batture.' " DeSambourg v. Bd. of Com'rs for the Grand Prairie Levee Dist. , 621 So.2d 602, 603, n.2 (La.1993), cert. denied , 510 U.S. 1093, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994). The supreme court defined batture for the purposes of exemption from compensation as "alluvial accretions annually covered by 'ordinary high water,' the highest stage the river can be expected to reach annually in seasons of high water." Id. at 604. The court went on to hold that "[o]rdinary high water" "is the highest water stage the river can be expected to reach annually, but not the level the water reaches during major flood events[.]" Id. at 611. The supreme court determined that evidence of the mean high water, the average of annual river stage peaks at a given location, was compatible with the definition of batture.

The FLD presented the testimony of three witnesses to establish how much of the acreage was batture. Mr. Mayeaux testified that riparian property fronts on water, in this case the Mississippi River. He testified that the property was riparian at the time of separation from the sovereign. Charles Wilkes, an expert real estate appraiser hired by the Biglanes, determined that the property fronted the Mississippi River. Dr. Willis agreed that the property was riparian.

Mike Sorrels, chief of the hydraulics branch of the Vicksburg District Corps of Engineers, testified that there is a river gauge on the Mississippi River in Natchez, Mississippi, which is located on the Natchez bridge at about river mile 363.3. He testified that gauge zero for the Natchez gauge is 17.28 feet. Mr. Sorrels explained that gauge zero is a conversion to get from the stage reading to the actual elevation. Mr. Sorrels testified that the Corps of Engineers keeps records of the stage readings at the Natchez gauge in the course of its regular business.

In calculating batture, Mr. Colquette testified it was his understanding that batture was the area on the river side of the levee that would flood two out of three years. He stated that he got a listing of the high-water points at the Natchez gauge from the Corps of Engineers for every year from 1960 to present. He also had the right-of-way maps prepared by Mr. Lightsey, in addition to a digital terrain model of the borrow pit area from the Corps of Engineers. On July 16, 2008, Mr. Colquette calculated that the property would flood up to an elevation of 59 feet, 70.8% of the time. Mr. Colquette explained that the water would reach 59 feet for seven out of ten years. Mr. Colquette chose a number that was more favorable to the property owners because he did not want any error in the data provided by the Corps of Engineers to impact the property owners.

Mr. Colquette calculated 22.7 acres of batture in Parcel 3-3, which had a total of 65.145 acres. He testified that he did not calculate batture in what he had been told was the existing right-of-way. Mr. Colquette also admitted he did not physically visit the property.

Using the Natchez gauge reading provided by the Corps of Engineers, Mr. Mayeaux calculated the ordinary high-water mark to be 62.08 feet, using the standard set forth in DeSambourg , 621 So.2d 602. He disregarded any water levels above the flood stage of 65.27 feet. Mr. Mayeaux testified that he looked at year 1911 and years 1940 forward. Mr. Mayeaux testified that he used the Chustz topographical survey provided to the Corps of Engineers for the project to calculate the batture acreage.

Mr. Mayeaux used the data points that were collected in the field to regenerate the contours. The contour data reflected that water would go behind an alluvial ridge located on the property. Mr. Mayeaux stated that the LIDAR images from Dr. Willis with water levels set at 59 feet and 62 feet indicated that water would get behind the alluvial ridge toward the levee. Mr. Mayeaux testified that 13.992 acres were above 62 feet in Parcel 3-3.

Dr. Richard Kesel, an expert in the fields of physical geology, sedimentology, and geomorphology, testified at trial. He also testified in the DeSambourg case. He explained that you average the mean high-water mark from every year over at least thirty or forty years, resulting in the high-water mark for the extended period of time. Dr. Kesel also used the information provided by the Corps of Engineers. He calculated the mean high-water mark at 62.5 feet. He testified that the borrow pit used for the project area is totally batture. Dr. Kesel did not use the reading from 1973 because the largest number is thrown out when calculating a mean. He explained that the Natchez gauge is located right next to this property, so no interpolation is needed. Dr. Kesel further explained that the approach used by Mr. Colquette was not consistent with the approach adopted by the supreme court in DeSambourg. Using the same numbers Mr. Colquette used, but utilizing the approach in DeSambourg , Dr. Kesel determined that the batture elevation would be 62.5 feet. He explained that Mr. Colquette's approach was more favorable for the landowner because the landowner would get paid for three additional feet. Using the topographical maps, Dr. Kesel explained 62 feet of batture would cover the ground up to the toe of the levee, which includes the area of the borrow pits. Dr. Kesel also stated that it makes no difference how long the water stayed at peak elevations because, on a big river like the Mississippi River, the water does not just instantaneously rise and then just drop down.

The Biglanes offered the testimony of Frank Willis, an expert in civil and environmental engineering, land surveying, geoscience, and hydrology. Mr. Willis testified that he did not perform a batture determination. He criticized the FLD's three experts because they did not go to the property before analyzing the data. Mr. Willis had no reason to doubt the reliability of the numbers from the Corps of Engineers. He testified about going to the property in a canoe and taking pictures of the property. The river was at 61.8 feet, and water was going through a break in the alluvial ridge, which was sticking up. He also stated that water would get around the alluvial ridge by flowing upstream. Although this was after the levee project was completed, he admitted that if the water levels rise to 62 feet, there is no impediment to the water getting all the way to the toe of the levee.

Based on the evidence in the record, we find that the trial court erred in concluding that the FLD failed to establish that there was non-compensable batture on the Biglane property that was used for levee purposes. Under the guidelines of DeSambourg , the FLD established that the ordinary high-water mark is 62 feet based upon the testimonies of Mr. Mayeaux and Dr. Kesel. Based on Mr. Mayeaux's testimony, only 13.992 acres on the alluvial ridge were not batture in Parcel 3-3. The rest of the acreage in Parcel 3-3 was non-compensable batture.

In making its award to the Biglanes, the trial court relied on their expert, Charles Wilkes. He testified that he was asked to make two extraordinary assumptions when appraising the property: (1) There was no existing right-of-way on the east levee toe on the river side, and (2) There was no non-compensable batture. Mr. Wilkes calculated that the FLD owed the Biglanes $1,215,880.00 for 226 acres in Parcel 3-3, $162,757.00 for 17.223 acres in Parcel 3-2, and $18,752.00 for fences and gates, totaling $1,397,389.00. Mr. Wilkes rounded this number to $1,397,500.00, which is what the trial court awarded.

Finding that only 13.992 acres were compensable in Parcel 3-3, we find that the amount owed to the Biglanes for Parcel 3-3 based on Mr. Wilkes' appraisal would be $75,276.96. ( ($1,215,880.00 ÷ 226 acres = $5,380 per acre) ($5,380 x 13.992 acres = $75,276.96) ). The new total would be $256,785.96. The FLD already tendered $385,287.00. The trial court erred in awarding the Biglanes any additional compensation.

ATTORNEY FEES AND COSTS

Finding no additional compensation is due the Biglanes, we also find that they are not entitled attorney fees and costs pursuant to La.R.S. 38:301(C)(2)(f), which provides for the award of attorney fees when additional compensation is awarded. Therefore, we reverse the award of attorney fees.

In light of this court's reversal of the award of additional compensation to the Biglanes, the assessment of costs against the FLD is also reversed.

CONCLUSION

For the reasons discussed in this opinion, the judgment of April 24, 2017, awarding additional compensation to the Biglanes is reversed. Judgment is entered dismissing the Biglanes' claims against the Fifth Louisiana Levee District Board of Commissioners with prejudice. The judgment awarding attorney fees and costs to the Biglanes on June 19, 2017, is also reversed. Costs of this appeal are assessed to James Biglane and Charlotte Biglane Nobile.

APRIL 24, 2017 JUDGMENT REVERSED AND RENDERED; JUNE 19, 2017 JUDGMENT REVERSED.


author: AMY, Judge.

text:
    Mary Ann Friday MOTTER, et al. v. Minnie Lucille F. LABORDE
    18-197
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    James Rex Fair, Jr., Post Office Box 1228, Natchitoches, LA 71428-1228, (318) 238-3247, COUNSEL FOR PLAINTIFFS/APPELLEES: Marion A. Friday, III, Lori Friday Baldridge
    Erika F. Cedars, McCoy, Roberts & Begnaud, Post Office Box 1369, Natchitoches, LA 71458, (318) 352-6495, COUNSEL FOR PLAINTIFF/APPELLEE: Mary Ann Friday Motte
    Nicholas E. Gasper, Gasper Law Firm, LLC, 671 Hwy 171, Suite L, Stonewall, LA 71078, (318) 775-4141, COUNSEL FOR DEFENDANT/ APPELLANT: Minnie Lucille F. Laborde
    Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.
   AMY, Judge.

This dispute arises from the disposition of a tract of land to their children by a husband and wife in their respective testaments. After the trial court issued a judgment of possession ordering that the land be divided according to the testaments, one of the heirs, as well as the estate of another, filed a petition to fix boundary, naming the third heir as the defendant. The trial court rendered judgment, interpreting provisions in the parents' testaments and dividing the property among the heirs. The heir against whom the boundary action was filed now appeals. For the following reasons, we affirm.

Factual and Procedural Background

Marion Arthur Friday and Lena Racine Friday were the parents of Marion Arthur Friday, Jr., Mary Ann Friday Motter, and Minnie Lucille Friday LaBorde. In 1959, Marion, Sr. and Mrs. Friday acquired a tract of land in Natchitoches Parish. Marion, Sr. died testate on December 7, 1986. After bequeathing the eastern third of that tract of land to Marion, Jr., the center third to Ms. Motter, and the western third to Ms. LaBorde, Marion, Sr. stated in his testament:

I further declare that there are certain improvements located in whole or in part upon the property bequeathed to Mary Ann Friday Motter and Minnie Lucille Friday LaBorde. Notwithstanding the foregoing disposition of the immovable property owned by me of the East one/third to Marion Arthur Friday, Jr.; the center one/third to Mary Ann Friday Motter; and, the West one/third to Minnie Lucille Friday LaBorde, in the event it should be determined that any of the improvements built or constructed by Minnie Lucille Friday LaBorde and Mary Ann Friday Motter should encroach upon the lot bequeathed to another, then and in that event, I will and bequeath such additional piece, parcel or strip of land to Mary Ann Friday Motter and Minnie Lucille Friday LaBorde as shall be necessary to eliminate the encroachment which additional piece, parcel or strip of land shall be donated as a part of the disposable portion of my estate not subject to collation.
I further declare that there are certain improvements located on the property bequeathed to Mary Ann Friday Motter which were paid for out of funds belonging to the legal matrimonial regime (community property) between me and my spouse. I herewith direct my executor to appraise any improvements located on the piece, parcel or lot of ground bequeathed to my daughter, Mary Ann Friday Motter, and then effect a collation in kind of the immovable or movable property left by me at my death such that each of my children inherit an equal value of my estate, on a pro rata basis, share and share alike. The executor of this, my last will and testament, being expressly authorized to collate the excess received by Mary Ann Friday Motter or any other heirs, in kind, or by taking less, all in accordance with the laws of the State of Louisiana.

On December 4, 1996, Mrs. Friday died testate, and her testament also divided the tract of land by bequeathing the eastern third to Marion, Jr., the center third to Ms. Motter, and the western third to Ms. LaBorde. In her testament, Mrs. Friday declared:

I further declare that there are certain improvements located on the property bequeathed to Mary Ann Motter Friday [sic]. Before the death of Marion A. Friday, Mary Ann Motter Friday [sic] expended her own funds improving this property to increase his comfort during his final illness. In consideration of the efforts made by Mary Ann Friday Motter to increase her father's comfort during his final illness and the funds expended by her to do so, I will and bequeath to Mary Ann Friday Motter my entire interest in and to the improvements located on the property bequeathed to Mary Ann Friday Motter.
I further declare that any gifts given to me during my lifetime by my descendants shall be returned to the donee upon my death.

On December 11, 2013, Ms. Motter and the estate of Marion, Jr.-represented by his children, Marion Arthur Friday, III, and Lori Friday Baldridge-filed a petition for probate regarding Marion, Sr.'s and Mrs. Friday's testaments. The Tenth Judicial District Court probated the testaments of Marion, Sr., and Mrs. Friday, appointing Ms. Motter as the executrix of the successions. Subsequently, Ms. Motter, the estate of Marion, Jr., and Ms. LaBorde filed a petition for possession, requesting that Marion, Sr.'s and Mrs. Friday's property be divided according to their respective testaments. The Tenth Judicial District Court issued a judgment of possession on January 29, 2014, ordering that the "property of decedents, Marion Arthur Friday and Lena Racine Friday , be divided in the proportions as set forth in each of their last will and testament[.]"

Thereafter, on February 23, 2015, Ms. Motter, as well as Marion, III, and Ms. Baldridge as heirs of the late Marion, Jr., filed a "Petition in Boundary Action, Petition to Fix Boundary," in which they named Ms. LaBorde as a defendant. The petition stated that Ms. Motter, Marion, III, and Ms. Baldridge had ordered a survey in accordance with the abovementioned succession proceedings and judgment of possession. Further, the petition alleged:

Defendant herein has refused to accept the survey as directed by the will of her parents, and further, disagrees as to the boundaries as written in the probate of her parents' estate.
....
Consequently, there is a dispute as to the location of the boundary line between the property of both Plaintiff[s] and that of the Defendant. Plaintiff[s] ask[ ] the Court to fix the boundary line between the Plaintiffs[ ] and Defendant in accordance with the Judgment of possession, that was a result of the probated will of their parents previously ruled in this honorable court, and under the laws in the State of Louisiana.

In response, Ms. LaBorde filed an answer and a reconventional demand, in which she asserted:

10.
As Marion Arthur Friday anticipated, improvements constructed by Plaintiff-in-Reconvention encroach upon the lot bequeathed to Defendant-in-Reconvention. Specifically, the majority of Plaintiff-in-Reconvention's driveway, all of her carport/garage and outbuilding, as well as at least one-third of the home in which she has lived for more than fifty (50) years are situated on the center-one-third of the Property.
11.
In accordance with the Last Will and Testament of Marion Arthur Friday, Plaintiff-in-Reconvention owns an undivided one-half interest in that portion of the center one-third of the Property on which her improvements are situated.
....
13.
Accordingly, Plaintiff-in-Reconvention desires and is entitled to a judgment recognizing her ownership of the west one-third of the Property plus such additional parcel of the center one-third of the Property as is necessary to include the improvements constructed by her.

The matter proceeded to trial. Ms. LaBorde testified that her parents allowed her to build a home on their tract of land, that she moved into the newly constructed home in 1961, and that she continues to reside in that home. Regarding a driveway on the property, she stated that "[i]t was kind of poorly built in '60[,]" but that in 1961 "we got a little bit of gravel and put it on the thing and then through the years we've kept it up ... and made a driveway out of it and had about three culverts put in there through the fifty something years." When asked who told her where to build, Ms. LaBorde answered, "[my father] marked off what I currently live on today." When asked whether that included the driveway, she replied that it did.

Regarding other improvements on the tract of land, Ms. LaBorde discussed a car shed, a metal building, and a water well. When discussing the car shed, Ms. LaBorde clarified that, at some point in time, her original car shed rotted and that she built a new one. Ms. LaBorde's son, David LaBorde, testified about the original car shed: "I know it was there when my uncle came back from Vietnam and I know it was there until I went into the service in '78." When asked whether the new car shed is in the same location as the old car shed, Ms. LaBorde responded: "Within a few feet one way or the other." Additionally, Ms. LaBorde explained that she operates a crawfish business, initially running the business from a wood frame building used by her father during his lifetime and ultimately moving her business to a metal building on a concrete slab when "[Ms. Motter] took possession of her place." When asked about the selection of the location of the water well, Ms. LaBorde testified:

[D]addy had the water well in his back yard when I moved there.... A hole came in the casing and it sanded in. We had to have a new well.... He put up $1000 and I put up $3000. He said we're gonna put that well in your backyard because I don't want anybody to ever take it from you.

She explained that, when the water well was built, "it fed at my house and my daddy's house and at that time my sister's house." However, Ms. LaBorde stated: "There's not currently any houses fed on it because the water system came through and ... we all got on the water system."

Ms. LaBorde testified that, after her father provided the three children with a copy of his will as initially drafted, she told him that "[the division of the tract of land is] not gonna work" because "somebody's gonna be in trouble with the line going through the house." In response, as explained by Ms. LaBorde, her father added the above-quoted improvements provision to his testament the next day. She testified that she asked her father for a deed to the property and, when he told her that he could not do so, she said to him: "I've ... built the house, now I'm telling you I'm taking it. And I took it." In this regard, Ms. LaBorde stated that she maintains the property. Additionally, David LaBorde testified that his mother and father maintained the property and that his mother does so "to this day." Ms. LaBorde stated that, while there was no fence on the property, her parents "spoke of it as my house, my place" and "respected it as mine."

Ms. Motter also testified at trial, explaining that her father spoke to all three children about the property. When asked what she believed her father's wishes were for the property, she responded: "I think my daddy['s] intention was to treat all three of us equally. He never showed partiality between the three kids." She stated that, at the time of her father's death, there were three houses on the tract of land-Ms. LaBorde's house, their parents' house, and a house that had belonged to their grandmother. When asked to identify which buildings were not on the tract of land in 1986 at the time of her father's death, she responded: "The [metal building on the concrete slab] directly behind my sister's house and the car shed behind daddy's shop." Ms. Motter was then asked, "So at the time of your father's death in '86, those buildings weren't there so they certainly weren't there when he prepared his will in 1982?". Ms. Motter responded, "No."

Ms. Motter was asked to review some photographs that had been admitted into evidence. When looking at one photograph, Ms. Motter explained that it was one that she took after having taken possession of their parents' house. She described a building to the left of lattice work in the photograph as being the metal building on the concrete slab. Ms. Motter was then shown another picture of the property, which she stated was taken at a wedding in July of 1993. She was asked: "Immediately to the left of [the lattice work] do you see any buildings?" To which she responded: "No. It wasn't there." Another photograph from the July 1993 wedding was shown to Ms. Motter, and a car shed was pointed out to Ms. Motter. She testified that that car shed was no longer on the property and had been torn down. Ms. Motter also testified about the driveway that Ms. LaBorde uses, explaining: "[D]addy started driving the school bus ... I don't know what year, I'd have to go back and look but I know he came in that driveway and parked the bus in front of his house."

Additionally, Henry Cole Gahagan testified at trial, explaining that he prepared and notarized Marion, Sr.'s last will and testament in July of 1982. When asked whether it was Marion Sr.'s wish that "his children share and share alike in [the] will[,]" Mr. Gahagan stated:

I think that the language as I drafted it, contemplated that Mr. Friday was uncertain if there was a current present encroachment on the property as of the date but he was making a carve out or a safe harbor in the event that there was.... And the, the understanding that I recall ... is that there were no improvement survey[s] that would have provided me with guidance on the testamentary bequest to be made by Mr. Friday. And therefore the language had to reflect what may have existed on the ground at that time without the benefit of an improvement survey.

Regarding the improvements and encroachments, Mr. Gahagan further testified that "had there been a prospective request I would have separately provided for that."

The trial court rendered judgment, ordering that the boundaries of each party's respective one-third ownership in the tract of land be fixed according to a survey attached to the judgment. In the judgment, the trial court stated:

Here, the "improvements" mentioned in the respective wills of Marion Arthur Friday and of Lena Racine Friday to be accommodated in the equal parceling of the subject family land were intended to be those in place at the time of their deaths. At that time, only the parties' individual homes existed. The evidence demonstrates that if the property was parceled out with each party receiving one third as designated in the will, two of [the] party's homes would encroach upon each other's parcel.
Defendant, Ms. LaBorde, insists that the subject improvements accommodation text was intended to include all future improvements as well. This court demurs. Via the competent drafting of the wills, the identical language used in both wills introducing the improvement accommodation text, in this court's opinion, resolves the issue. Each testator stated at the beginning of the subject paragraph, "I further declare that there are certain improvements located on the property bequeathed to Mary Ann Friday Motter..." [Emphasis added]. The testator's use of the present tense clearly reveals that the following accommodation was for those improvements known to them at the time of drafting .... Had it been the testators' wish to include future improvements in the accommodation, appropriate language would have been used. Fortunately, no other improvements were built between the date of execution of the wills and the testators' deaths, freeing the court from discerning the fate of post-will/pre-death improvements.
....
The boundaries fixed herein are the best equitably possible.

Ms. LaBorde now appeals that judgment, asserting the following assignments of error:

1. The court incorrectly interpreted the testaments of Marion and Lena Friday and failed to account for improvements that existed at the time of their deaths, specifically improvements constructed by Minnie LaBorde that encroach upon the center one-third of the property.
2. The court failed to recognize that Minnie Lucille LaBorde has become the owner of a portion of the property, beyond the west one-third, through acquisitive prescription.

Discussion

Interpretation of Testaments

In her first assignment of error, Ms. LaBorde asserts that the trial court incorrectly interpreted the testaments of Marion, Sr. and Mrs. Friday and failed to account for improvements that existed at the time of their deaths. As the assignment of error is framed, Ms. LaBorde appears to agree with the trial court's determination that the improvements provision applies only to those improvements in place at the death of the testators. However, she disagrees with the trial court's conclusion that the only improvements in place at that time were the three houses.

In determining the provisions of a testament as the trial court was called upon to do in this boundary action, the intent of the testator is the paramount consideration. Succession of Tyson , 30,703 (La.App. 2 Cir. 6/26/98), 716 So.2d 148. If a testament contains ambiguity, then a court may examine extrinsic evidence and circumstances that shed light on the testator's intentions to resolve the ambiguity. Succession of Hackney , 97-859 (La.App. 3 Cir. 2/4/98), 707 So.2d 1302, writ denied , 98-0596 (La. 4/24/98), 717 So.2d 1172. As this court has explained, in cases in which a testament is contested, the factual findings of the trial court are entitled to great weight and should not be disturbed on appeal absent manifest error. Estate of Doucet , 94-61, 94-62 (La.App. 3 Cir. 10/5/94), 643 So.2d 882. Additionally, this court has stated: "Resolution of conflicts in testimony and credibility determinations in succession proceedings are within the province of the trial court." Succession of Young , 96-1206, p. 4 (La.App. 3 Cir. 3/5/97), 692 So.2d 1149, 1151. Accordingly, "they may not be overturned on appeal unless manifestly erroneous or clearly wrong." Id.

As discussed above, the trial court concluded that "the 'improvements' mentioned in the respective wills of Marion Arthur Friday and of Lena Racine Friday to be accommodated in the equal parceling of the subject family land were intended to be those in place at the time of their deaths." Mr. Gahagan testified:

[T]he language as I drafted it, contemplated that Mr. Friday was uncertain if there was a current present encroachment on the property as of the date but he was making a carve out or a safe harbor in the event that there was... And therefore the language had to reflect what may have existed on the ground at that time[.]

He further stated: "[H]ad there been a prospective request I would have separately provided for that." As noted above, Ms. LaBorde does not appear to contest the trial court's determination that the improvements clauses referred to those improvements in existence at the death of the testators. Considering the foregoing testimony and the record as a whole, we find no manifest error in that conclusion.

Neither do we disturb the trial court's determination that the subject improvements were limited to the three houses, and did not include the sundry constructions claimed by Ms. LaBorde. Particularly, Ms. LaBorde suggests that her father's use of the term "improvement" in the testament rather than "house" requires a determination that all constructions be included in the boundary determination. She globally asserts in her brief that her "boundary should be established to provide her ownership of all of her improvements, including, but not limited to, her home, her sewer system, her water well, her driveway, and her car shed." Ms. LaBorde contends that to otherwise limit the term "improvement" would disregard her father's intent.

However, we conclude that the trial court did, in fact, consider Mr. Friday's intent in its consideration of the term "improvement" in light of the facts of the parties' possession as established at trial. Importantly, the trial court explained that the interpretation urged by Ms. LaBorde would have permitted each of the children "lawful carte blanche to build encroachments across the breadth of the family land with the resolve of an owner and leaving collation to console the loser. Such a Manifest Destiny approach to the subject clause defeats the testator's uncontested intent to equally divide the family property among the children."

First, reference to the exhibit by which Ms. LaBorde demonstrated her preferred boundary reveals the breadth of her advanced encroachment claim and the limited means by which the other siblings could be accommodated by equal measure. As remarked upon by the trial court, such a finding would be contrary to an intent of equal division.

Additionally, the evidence as to the time of origin and the use of the claimed constructions does not mandate a finding in favor of Ms. LaBorde's position. While Ms. LaBorde pleas for the collective inclusion of various constructions, she pointedly contests the trial court's failure to include a driveway and a car shed. With regard to her claim for a driveway that she uses to access her home, Ms. LaBorde testified that she began building the driveway in 1960-1961, adding gravel and culverts to the area over the years. This latter time period was not defined. Yet, the record further evidences the use of the driveway not only for access to Ms. LaBorde's home, but for the larger shared property. When Ms. Motter was asked "[h]ow long has that driveway been there[,]" she explained that, although she could not recall what year her father began driving a school bus, she was aware that "he came in that driveway and parked the bus in front of his house." Ms. Motter confirmed that Ms. LaBorde also uses the driveway, but further remarked that "the driveway comes up and it kind of branches off right there and comes ... towards daddy's carport." And, in fact, reference to the survey submitted into evidence indicates that, although the subject driveway enters the property from the road frontage attendant to the western third of the tract designated for Ms. LaBorde, the driveway extends well into the center third of the tract on which the decedents resided and which was ultimately designated for Ms. Motter. The evidence is similarly tenuous with regard to Ms. LaBorde's claim for a car shed as the trial court heard conflicting testimony about the locations of both an original and a newer car shed. And, in fact, the timeline of the construction of the newer car shed was not established. For these reasons, we find no manifest error in the trial court's conclusion that neither the driveway nor the car shed was included in the improvements as described by Marion, Sr.'s will.

Acquisitive Prescription

In her second assignment of error, Ms. LaBorde argues that she has become the owner of a portion of the property, beyond the west one-third, via acquisitive prescription. While she did not specifically plead the concept of acquisitive prescription before the trial court, in briefing to this court, she asserts:

The interpretation of the will is a factor to be considered in this matter, but the inquiry should not have stopped there. This suit is a boundary action. When faced with a boundary action, Code of Civil Procedure article 3693 requires that the court render judgment fixing the boundary in accordance with the ownership or possession of the parties. Civil Code article 792 further provides that the court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to the limits established by possession. Therefore, a boundary action requires the court to consider[ ] not only title to the property but also acquisitive prescription.

Ms. LaBorde contends that the trial court "never even considered acquisitive prescription and never considered the law concerning a boundary action."

While the trial court did not specifically address acquisitive prescription in the judgment, we find no merit in Ms. LaBorde's contention that the trial court was required to do so. As Ms. LaBorde noted, La.Code Civ.P. art. 3693 provides that, in a boundary action, "the court shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties."

Procedural law, such as La.Code Civ.P. art. 3693, guides the enforcement of substantive law. In that latter regard, Louisiana Civil Code Article 792 (emphasis added) provides: "The court shall fix the boundary according to the ownership of the parties; if neither party proves ownership , the boundary shall be fixed according to limits established by possession." Here, however, the trial court concluded that ownership of the tract of land was proven by the testaments of Marion, Sr. and Mrs. Friday. As discussed above, we find no manifest error in the trial court's division of the tract of land.

Moreover, the record before the court is simply not one requiring the trial court to have found ownership by acquisitive prescription. According to La.Civ.Code art. 3486, "[o]wnership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith." This court has explained that the party who asserts acquisitive prescription bears the burden of proving all of the essential facts to support it. Crowell Land & Mineral Corp. v. Funderburk , 96-1123 (La.App. 3 Cir. 3/5/97), 692 So.2d 535. Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a determination of fact by the trial court, and it should not be disturbed on appeal unless it is clearly wrong. Meritt v. Brennan , 08-973 (La.App. 3 Cir. 2/4/09), 3 So.3d 646. Significantly, La.Civ.Code art. 3477 explains that "[a]cquisitive prescription does not run in favor of a precarious possessor[.]" Precarious possession is defined in La.Civ.Code art. 3437 as "[t]he exercise of possession over a thing with the permission of or on behalf of the owner or possessor[.]" According to La.Civ.Code art. 3439, a precarious possessor "commences to possess for himself when he gives actual notice of this intent to the person on whose behalf he is possessing."

Ms. LaBorde's testimony indicates that her possession was exercised with the permission of her parents, who owned the tract of land. As discussed above, Ms. LaBorde testified that she told her father: "I've ... built the house, now I'm telling you I'm taking it. And I took it." Even if construed as notice of Ms. LaBorde's intent to possess for herself, the statement appears to relate only to the house Ms. LaBorde built. As discussed above, Ms. LaBorde retains ownership of that house according to the trial court's judgment and attached survey. Following the deaths of Marion, Sr. in 1986 and Mrs. Friday in 1996, the record indicates that Ms. LaBorde's possession was not exercised in an adverse manner until the difficulties surrounding the present matter arose, well after the date necessary for acquisitive prescription purposes. Accordingly, we conclude that the trial court was not clearly wrong in failing to recognize that Ms. LaBorde has become the owner of a portion of the property beyond the west one-third via acquisitive prescription. Rather, this assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court, fixing the parties' respective boundaries, is affirmed. All costs of this appeal are assessed against Minnie Lucille Friday LaBorde.

AFFIRMED

      In briefing to this court, Ms. LaBorde argues:
      The judgment interpreted the [ ] improvements clause to apply only to those improvements in place at the death of the testator.... Ms. LaBorde does agree with the court's interpretation of the clause.
      ....
      The language of Marion Friday's testament is very clear. It was his intent that any improvement encroaching upon the property bequeathed to another shall belong to the person that built that improvement. If Mr. Friday had intended for the improvements to be limited to only houses, he could have easily used the word "house" instead of the word "improvement." His use of the word "improvement" makes it very clear that he intended to provide for encroachment of any improvements, not just a house. Accordingly, Ms. LaBorde's boundary should be established to provide her ownership of all of her improvements, including, but not limited to, her home, her sewer system, her water well, her driveway, and her car shed.
      ....
      The judgment erroneously states that at the time that the wills were written "only the parties' individual homes existed."