Plaquemines Dirt & Clay Company, L.L.C. v. Plaquemines Parish Government

• Court: Louisiana Court of Appeal
• Decided: September 22, 2025
• Docket: 2024-CA-0838
• Status: Published

Opinion

PLAQUEMINES DIRT & CLAY * NO. 2024-CA-0838 COMPANY, L.L.C. * VERSUS COURT OF APPEAL * PLAQUEMINES PARISH FOURTH CIRCUIT GOVERNMENT * STATE OF LOUISIANA *******

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 66-276, DIVISION “B” Honorable Michael D. Clement ****** Judge Daniel L. Dysart ****** (Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Paula A. Brown)

Stephen O. Scandurro Timothy D. Scandurro Jean-Paul Layrisson SCANDURRO & LAYRISSON, L.L.C. 607 St. Charles Avenue New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLEE

L.V. Cooley, IV William S. Culver Rennie Buras Jacque Touzet Plaquemines Parish Government 333 F. Edward Hebert Blvd Building 100 Belle Chasse, LA 70037 333 F. Edward Hebert Blvd., Bldg. 100 Belle Chasse, LA 70037 Jimmy A. Castex, Jr. W. Lee Kohler CASTEX ESNARD, L.L.C. 650 Poydras Street Suite 2415 New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT

AMENDED, AND AS AMENDED, AFFIRMED

SEPTEMBER 22, 2025 DLD Plaquemines Parish Government (“PPG”) appeals the October 25, 2024 trial RML PAB court judgment in favor of Plaquemines Dirt and Clay Company, LLC (“PDC”),

and against PPG awarding PDC $14,958,600.00 as the fair market value of their

property appropriated for the levee project known as “NOV-NF-W-06A.2, First

Levee Lift and Drainage Canal Relocation Project Pointe Celeste to West Pointe-a-

la-Hache.” This judgment includes compensation for the diminished value of the

remaining portion of PDC’s property, plus legal interest on the amount accruing

from the appropriation on September 14, 2017, until paid in full. The judgment

also awarded PDC all court costs and expert fees in the amount of $36,919.36 and

attorneys’ fees in the amount of $2,500,000.00 pursuant to La. R.S.

38:301(C)(2)(f) against PPG, plus legal interest on these amounts accruing from

the date of the judgment until paid in full.1

FACTS AND PROCEDURAL HISTORY

1 The final judgment appealed from amended the original judgment, which did not specifically

state that interest ran from the date of appropriation, September 14, 2017.

1 This case involves a dispute regarding the amount of compensation owed to

a landowner (PDC) by PPG for land appropriated for a federal levee project in

Plaquemines Parish. Following Hurricane Katrina in 2005, the United States Army

Corps of Engineers (“USACE”) embarked upon a master project to construct a

hurricane protection levee system from New Orleans to Venice, Louisiana in lower

Plaquemines Parish on the West Bank of the Mississippi River. On January 16,

2008, PDC acquired a tract of land known as Farm Fields 59 and 64 for

$1,305,996.00 from Pointe Celeste River Properties, LLC, a company owned by

William Nungesser. This tract of land, which contained approximately 575 acres,

was used as a borrow pit operation by PDC. The property is divided into a north

pit and south pit and prior to the construction of the new levee system, was

protected only by a much smaller levee at the rear portion of the property. In 2010,

before federal funding for the new levee system was approved, USACE approved

PDC’s property as a “contractor-furnished” borrow pit, which meant that PDC

would be included on a list of contractors bidding for jobs whose pits were pre-

approved for mining borrow material.

On April 18, 2012, Citrus Lands Services, LLC (“Citrus Lands”) - the

company from whom Mr. Nungesser had purchased the property in 2006 with

Citrus Lands retaining certain servitude rights - transferred to PPG certain lands

comprising a non-federal back levee system, including the back levee along PDC’s

property. This transfer was made in exchange for PPG’s commitment to maintain

and improve the levees and pumping stations located on the property.

2 On June 22, 2012, PPG entered into a Project Partnership Agreement with

USACE and the Coastal Protection and Restoration Authority Board of Louisiana

(“CPRA”) regarding the federal levee project, with PPG and CPRA acting as the

non-federal local sponsors. This agreement covered the federalization of PPG’s

pre-existing back levee system and its incorporation into the New Orleans to

Venice, Louisiana Hurricane Protection Project. Under the agreement, PPG was

required to acquire the necessary land rights needed for the project. PPG was

tasked with appropriating easements and properties for the new levee system

because USACE does not have appropriation or expropriation powers.

Pursuant to Plaquemines Parish Ordinance No. 17-121, PPG appropriated,

effective September 14, 2017, “New Perpetual Levee/Floodwall Easements” and

“New Perpetual Flood Protection Levee Floodwall & Drainage Ditch Easements”

covering 67.8059 acres of land owned by PDC, and a “New Temporary Work

Easement” covering 0.5443 acres of land owned by PDC.

The ordinance that authorized the appropriation of a portion of PDC’s

property reserved all rights to the landowners “as may be used without interfering

with or abridging the rights and easements hereby acquired.” The appropriated

land bisects PDC’s property. The new levee alignment protects a portion of PDC’s

property, but leaves approximately 300 acres between the new levee and the

existing levee, thereby leaving this latter portion unprotected by the new levee. In

its taking of 68.3502 acres of PDC’s property for the new levee, PPG relied on the

3 appraisal of real estate appraiser Henry Tatje, and tendered a check in the amount

of $274,000.00 to PDC as compensation for the appropriated land. PDC accepted

the check, while specifically reserving all rights to seek additional compensation.

PDC filed suit against PPG on September 11, 2020, seeking recovery for an

increased amount of compensation. Beginning on March 18, 2024, a three-day

bench trial took place.

TRIAL TESTIMONY

The first witness at trial, who testified by video deposition, was Louisiana

Lieutenant Governor William “Billy” Nungesser. Mr. Nungesser testified that he

was elected Plaquemines Parish President in 2006, the year after Hurricane

Katrina. Prior to Hurricane Katrina, Mr. Nungesser signed an option to purchase

the property currently owned by PDC from Citrus Lands. He stated that the

property was an existing borrow pit prior to Katrina. Mr. Nungesser testified that

if the levees were ever raised or needed dirt, there would be some value in the dirt

in that pit because it was already an approved borrow pit. His primary motivation

in buying the property was for borrow pit purposes.

Mr. Nungesser later exercised the option to purchase the property in the

name of a company he owned called Pointe Celeste River Properties, LLC. The

sale of Farm Fields 59 and 64 from Citrus Lands to Pointe Celeste was completed

on December 29, 2006 for the purchase price of $1,305,996.00. At the time of the

sale, Mr. Nungesser had been elected Plaquemines Parish President but had not yet

4 taken office. The property at issue had only a four-foot levee in the back of the

property, and the new federal levees had not yet been approved by Congress.

Mr. Nungesser testified that, after Congress appropriated funds for the

federal levees, he received a verbal offer of $6,000,000.00 for the borrow pit

property from “an Alabama company or gentleman.”2 He was advised by his

attorney that accepting this offer, while legal, could present a problem for him

because of the perception that he used his political office to enrich himself by

actively pursuing federal funding to build levees on properties including the

borrow pit property that he acquired from Citrus Lands. He testified that although

his motivation for pursuing funding for the federal levees was strictly to protect the

parish, he chose to sell the property to some friends for the exact same price that he

paid for it in order to avoid the perception that his motivation was to enrich

himself. He had not been actively marketing the property at that time, and he told

the friends about the higher offer from the company or gentleman from Alabama.

The friends who bought the property formed the entity of PDC for the sale, and the

sale was completed on January 16, 2008.

When Mr. Nungesser bought the land from Citrus Lands and when he sold it

to PDC, he was under the impression that the borrow pits were “grandfathered”

and therefore not subject to subsequently enacted parish regulations regarding

borrow pits in the parish.

2 Mr. Nungesser’s testimony does not include the identity of the Alabama company or gentleman

who made the verbal offer to buy the property.

5 When asked if he had any further involvement with the operation of the

borrow pit or PDC after the sale, Mr. Nungesser said that because some members

of the Parish Council objected to PDC being able to dig on the property, he

requested and approved a letter sent from the Parish Attorney to USACE, stating

the Parish Attorney’s position that PDC was not subject to the Council’s new

borrow pit ordinances that were passed in 2009. Included in those ordinances was

the requirement that borrow pit holes be backfilled with river sediment.

In 2011, before Congress appropriated the funding for the federal levees, the

Parish Council authorized PPG to acquire easements and properties in connection

with the new levee project. Citrus Lands had already donated to PPG rights-of-

way for existing levees, canals and pumping stations that it owned. Prior to the

Act of Transfer from Citrus Lands to PPG for this donation, Citrus Lands had been

responsible for the drainage in this area. Following the transfer, PPG assumed

responsibility for the operation and maintenance of the levees, canals and pumping

stations.

The next witness was Hugh McCurdy, III, a professional land surveyor. He

did the survey for the sale of the property at issue from Pointe Celeste, Mr.

Nungesser’s company, to PDC. Mr. McCurdy testified that the new levee has been

placed mostly where the old levee used to be. But the new levee makes a deviation

through the center of PDC’s property. After Mr. Nungesser sold the property at

issue to PDC, Mr. McCurdy surveyed the property for locations of new borrow

pits. He also staked out a buffer zone for wetlands areas that PDC could not

6 disturb. He determined that there were 118.1 acres of existing borrow pits at the

time of his survey. He calculated that there were 3,470,000 cubic yards of volume

remaining inside the borrow pits. He stated that the borrow pits were there before

PDC bought the property.

Mr. McCurdy testified that PPG hired him to do a survey of the areas

between the drainage canal and the levee in order for engineers to be able to

reconfigure the drainage so that it flows toward the Mississippi River from the

preexisting back levee. Mr. McCurdy said drainage on the south pit would be an

issue after construction of the new levee because it would be dependent on a sluice

gate built through the new levee and on PPG’s maintenance of the back existing

levee. He said that the property in the south pit is outside of the protection of the

new levee system, and will be “a bowl” if the drainage is not maintained correctly.

His calculations of acreage and volume of material did not include the south pit.

On cross-examination, Mr. McCurdy acknowledged that, as a surveyor,

pricing of properties and per acre pricing is typically not something he does. He

also stated that his work for PPG did not include giving an opinion as to what

might need to be done to provide drainage to the property. He said his work

product would be submitted to an engineer to design a drainage plan. Mr.

McCurdy admitted that he is not qualified to do a drainage study of the PDC

property.

His survey calculated acreage and total volume of material remaining the

borrow pits in cubic yards. But he acknowledged that he was not qualified to say

7 whether that volume would all be usable material or whether some of it would be

spoil material that could not be sold.

The next witness was Michael Gaffney. Mr. Gaffney, an attorney, testified

that he was contacted by Mr. Nungesser in 2007 after Mr. Nungesser had been

become Parish President. Mr. Nungesser hired Mr. Gaffney regarding potential

post-Katrina reconstruction projects in Plaquemines Parish after learning that the

FEMA (Federal Emergency Management Agency) did not fund project

management. Mr. Nungesser told Mr. Gaffney that he had a particular piece of

property that he wanted to sell but he did not want the appearance of profiting from

reconstruction projects because of his political position.

In order to avoid that appearance, he said he wanted to sell the property for

the same price he had paid for it. To that end, Mr. Gaffney arranged for a group to

buy the property in 2008 from Mr. Nungesser for the approximately $1.3 million

that he paid for it in 2006. The group established a business entity for the purchase

and named the business PDC.

Mr. Gaffney testified that the property purchased by the group was an

existing dirt pit, and the newly formed business wanted to develop it because of the

belief that new levees would eventually be built in that area and the dirt could be

sold for that purpose and for other construction projects. Mr. Gaffney stated that

the PDC property had certain operational advantages because it was a preexisting

borrow pit that had been approved by USACE so there was an indication that the

materials still at the site would subsequently be approved by USACE.

8 Because the property acquired by PDC was a back parcel and not on a

highway, Mr. Gaffney sought to ensure that the property had adequate access. A

title search revealed that there were two access routes to get to the property, one at

the edge and one toward the middle. The property had a predial servitude of

passage, so Mr. Gaffney said this assured PDC it could access its property.

At the time of the sale of the property to PDC, Congress had not yet

appropriated funding for the new levees. That occurred several years later. After

the sale but before Congress funded the levee project, PDC hired an engineering

consultant to determine if the property had material that would be acceptable to

USACE and if so, the estimated quantity of that material. PDC had been selling

material after the 2008 purchase for private works but not yet to USACE. After

receiving a favorable report from the consultant, PDC submitted a proposal to

USACE detailing how it was going to develop the borrow pit.

In 2009, the Parish Council passed new regulations regarding the operation

of borrow pits. Among other changes, the new regulations imposed a requirement

of backfilling pits after they were emptied, and PDC’s position was that it was

exempt from the new regulations because the PDC borrow pits were already in

existence prior to the enactment of the new regulations. The Parish Council

initially objected to PDC being exempt from the new regulations, but in June 2011,

PPG granted PDC the right to operate as a legal nonconforming use, which meant

PDC was not subject to new regulations on its borrow pits. A Permit Variance

Agreement between PDC and PPG acknowledged that PDC did not have to

9 comply with the 2009 ordinances, but PDC pays PPG $10,000 each year for this

Agreement. PDC contacted USACE, and informed it that PDC was approved and

ready to provide materials for any of USACE’s projects.

Under the above-referenced 2012 Project Partnership Agreement, PPG was

tasked with appropriating easements and properties for the levees because USACE

does not have appropriation or expropriation powers. Mr. Gaffney explained that

the local government has those powers, so the local government acquires property

on behalf of the federal government for its construction projects and the federal

government then pays the local government for the property. In addition to other

acquisitions, PPG acquired the levee, canals and pumping stations over which

Citrus Lands still retained servitudes. As part of that transfer, PPG assumed

responsibilities for the operation and maintenance of those levees, canals and

pumping stations.

USACE’s design of the new levee placed it through the middle of PDC’s

property. Mr. Gaffney stated that the new levee would place a significant portion

of PDC’s property on the unprotected side of the levee, and would present access

and drainage problems that would impact PDC’s ability to conduct its borrow pit

operations. Mr. Gaffney said PDC sent a letter to USACE complaining about the

proposed location of the new levee. He stated USACE responded that it would

construct sluice gates on PDC’s property, which could be opened after a flooding

event and the water could be pumped out. He acknowledged that PDC has access

roads in place to cross the new levee, but his concern is that PDC does not have a

10 servitude to do so. Thus, PDC’s ability to access its property will still be within

USACE’s control, and that access could be denied by USACE at its discretion.

According to Mr. Gaffney, because PDC does not have a right of access and will

not have operational control of the sluice gates, this could affect a potential

customer’s decision to buy materials from PDC.

Philip Ramon, III, a member and managing partner of PDC, was the next

witness. He has been involved with PDC since its inception. He testified

regarding the consulting firm hired by PDC in early 2008 to perform geotechnical

testing at the site. The outcome of that testing was that PDC had usable clay that

would meet USACE’s requirements and PDC should be able to be preapproved for

use in its projects. As stated above, PDC later received that preapproval from

USACE. Mr. Ramon testified that PDC was selling its product before being

preapproved by USACE. The preapproval by USACE was a marketing tool used

to PDC to attract potential customers. The business model of PDC was to allow

contractors to bring in their own heavy machinery and dig and process their own

dirt or clay. This model was also attractive to contractors because they did not also

have to pay PDC for the digging process.

Mr. Ramon stated that from 2008, when PDC began its operations, to 2017,

when PPG appropriated the PDC property for the levee project, 59.02% of PDC’s

sales were for nonfederal projects. He also stated that 42.46% of all PDC’s project

sales over the lifetime of PDC’s operations have been for nonfederal projects.

USACE did not buy any material from PDC for the construction of the new levee.

11 Mr. Ramon testified that after plans for the new levees were released, PDC had

difficulty selling its product because PDC could not guarantee to contractors that

they would be able to access the PDC property. He said the two access ramps over

the new levee that were built by USACE – one to access the north pit and the other

to access the south pit - will be quickly degraded by the type of heavy loaded dump

trucks that will need to cross the levee. The access ramps are on a slope and are

covered with seven inches of crushed gravel.

Mr. Ramon stated that PDC has had no new contracts since construction

began on the levee. He claimed that contractors’ vehicles exceeding a certain

weight will need a special permit from USACE to cross the levee. In support of his

more general contention that access to PDC’s property will be affected, he cited a

section of USACE’s Levee Permit Policy, which states, in part: “Work on or near

hurricane risk reduction levee will be restricted during hurricane season and will be

evaluated on a case-by-case basis for possible waiver.” Mr. Ramon referred to an

additional dirt access road 2 ½ miles north of the PDC property, but said that truck

drivers complained that the dirt road caused damage to their vehicles. He also said

that there are drainage concerns for PDC’s property, especially the south pit that

will be outside of the protection of the new levee and more prone to flooding. He

stated his belief that the new levee will put PDC at a severe financial disadvantage.

On cross-examination, Mr. Ramon acknowledged that a letter from USACE

was sent to PDC explaining that USACE would construct ramps to provide access

to PDC on both sides of the new levee. He was also told that PDC would have to

12 be inconvenienced while construction was ongoing. USACE also told PDC by

letter that it would provide a drainage structure for PDC’s property. He contends

that drainage issues on both the north and south pits are different than they were

before construction of the levee. He said the north side now drains toward the pre-

existing back levee. He said during Hurricane Ida in 2021, all of the south pit

remained flooded for an extended period of time.

Stephen Cali, a professional civil engineer, was the next witness. He was

accepted by the trial court as an expert in the field of civil engineering, including

the permitting of land for development, including borrow pits and operations

thereof. In 2008, he was hired by PDC to prepare documents that would qualify

PDC as a government-approved contractor-furnished borrow pit. He explained

that following Hurricane Katrina, USACE started a borrow program and advertised

for landowners to submit their land for qualification as a borrow pit. If the land

was accepted as such by USACE, the landowner would appear on a list of

contractors bidding for a job whose pits were preapproved for mining borrow

material.

Mr. Cali engaged a firm called PSI to do the geotechnical testing on PDC’s

property. PSI found that PDC’s property contained at least 13 million cubic yards

of suitable clay. In January 2010, USACE approved PDC as a

contractor-furnished borrow pit. With the new levee traversing the PDC property,

the north pit is now on the protected side of the levee and the south side is now

13 what PDC refers to as “orphaned.3” PDC considers the south side orphaned

because it is unprotected by the new levee and so is more subject to flooding. He

stated that the orphaned area is 301.32 acres, and could be mined if accessible. He

testified as to potential drainage issues on both the north and south pits.

Mr. Cali calculated that 71.68 acres of PDC’s property were taken by the

new federal levee. Included in that calculation is approximately 68 acres for the

levee and an additional amount for easements that surround the levee system

including setbacks off the levees.4

He described the access ramps built by USACE as long ramps from both

sides of the levee with a crushed stone base on top of a filter cloth fabric, which is

on top of a clay bed. His opinion is that the way USACE regulations are written,

PDC will need permission from USACE to cross the new levees after construction

is completed. He also opined that the ramps will be degraded very quickly by

loaded dump trucks crossing, and that this will have an impact on PDC’s borrow

pit operations because maintenance issues will have to be addressed. Once the

levee construction project is completed, USACE will turn over operations and

maintenance of the levees to PPG.

Mr. Cali also testified as to the drainage structure being built by USACE.

He said that, when closed, the sluice gates will cut off the flow of water during a

hurricane or storm, and the culverts can be sealed off so there are no tidal surges of

3 In this opinion, we will also use the term “orphaned” to describe the south pit but only because

it is not protected by the new levee system but remains protected only by the preexisting back levee. 4 The parties stipulated at the end of PDC’s case that the servitude taken on PDC’s property for

the levee is 68.3502 acres.

14 water flowing back from the unprotected side of the property to the protected side.

But the effect of the closure of the sluice gates during a storm event is that there

will be a ponding of water. To remove the water, the sluice gate will have to be

reopened and the nearby pump station activated to drain the water through the

pumping system.

Mr. Cali’s opinion is that access and drainage issues will be serious

impediments to contractors trying to access the orphaned area. He stated that

because that the placement of the levee basically divides the borrow pit in two, his

opinion is that this has eliminated PDC’s ability to operate its south pit. He said

the vital operation of the south pit will be affected because contractors digging in

the south pit need access to the north pit to move the materials to the north pit to

“lay down” and process the materials. He said if contractors need to travel a

greater distance to process their materials, PDC will be less attractive to potential

customers.

When asked on cross-examination to explain the basis for his opinion that

drainage will be worse after the levee is constructed than before, he stated that if

trash and grass block the opening of the trash racks on the sluice gate, drainage

will be blocked. He also stated his opinion that the culverts in the sluice gates are

inadequately sized to handle drainage.

The next witness was Baldwin Justice, an expert in the field of real estate

valuation and appraisal. He testified that he was engaged by PDC to determine an

opinion of market value for the PDC property both before and after the

15 appropriation of the property in order to determine just compensation for PDC. He

stated that this was a large acreage tract of land that was a permitted borrow pit

operation with a history of significant revenues generated by the sale of borrow pit

materials. He disputed PPG’s description of this property at pastureland, and said

instead that it was an investment use property.

Mr. Justice testified that this market area has been experiencing a significant

infusion of capital from major industrial development, which should result in

positive growth trends in property values. His opinion is that the highest and best

use of the PDC property is for continuing use as a borrow pit operation. He

explained that highest and best use, at the time of the taking, is a critical

component of the appraisal process. He stated that the four tests for determining

highest and best use are: 1) what is legally permissible to be done on the site; 2)

what is physically possible; 3) what is financially feasible; and 4) what use is going

to generate the greatest return to the land.

He performed a land residual analysis, which he described as a projected

income and discounted cash flow analysis to arrive at the land’s value at the time

of the taking. Because his search revealed no market sales of property with

permitted and active clay borrow pits in Plaquemines Parish, Mr. Justice

considered land in other parishes as comparable properties, although the other

properties were industrial sites or sites acquired for industrial development rather

than borrow pit properties.

16 The mean average value of the comparable properties was $196,477.00 per

acre. He valued the 118 acres of the PDC property where active mining cells were

at the time of his appraisal at $140,000.00 per acre. He arrived at this significantly

lower value per acre because of the fact that the PDC property is not on Louisiana

Highway 23, but rather has to be accessed by gravel roads. Additionally, there was

less industrial development in Plaquemines Parish at the time of his appraisal than

in the areas where his comparable properties are located. He found that the PDC’s

remaining acreage was less valuable than the 118 acres of active mining cells

because the other acreage was servicing or supporting the active mining operation.

He stated that there was no levee servitude over the 118 acres of active mining

cells.

Mr. Justice valued the remaining acreage surrounding active cells at

$10,000,00 per acre. He concluded that the value he gave to the supporting

acreage was conservative because that acreage has the potential to become active

mining pits and would then have a higher value. With those figures, his opinion is

that his land residual analysis established the value of PDC’s total acreage

immediately prior to the taking at $21 million, or $38,000 per acre.5

Mr. Justice’s opinion is that after the taking, the highest and best use of the

north pit remained as a borrow pit, but the highest and best use of the south pit was

changed to recreational use. He based that opinion on access and drainage issues

5 118 acres of active mining cells at $140,000.00/acre = $16,520,000.00. The remaining 457 acres (575 minus 118) at $10,000.00 = 4,570,000.00. $16,520,000.00 + $4,570,000.00 = $21,090,000.00.

17 affecting future borrow pit operations in the south pit. He referred to information

provided to him suggesting that the orphaned south pit area would “be akin to a

bowl” after the new levee is completed. He stated that “if there is some level of

damage to the levee…I don’t know this for certain; I’m just speculating…they

[PDC] may be on the hook potentially for costs associated with repairing the

levee.” He also stated, “if they have damage to the levee and the Corps…decides

to shut down accessing the levee into the rear [south] orphaned area…they [PDC]

may lose time for use for mining that pit area.” He said it was “also not outside the

realm of possibility that if enough damage is done to the levee that the Corps can

come in and say, ‘You know what? We’re pulling the permit.’” Mr. Justice’s

opinion is that contractors would look at the PDC south pit as no longer

realistically viable for continued use as a borrow pit operation.

Mr. Justice testified that there were 67.8059 acres of servitude taken in the

appropriation. Subtracting the 6.37 acres that were previously encumbered by

servitude, he calculated the net new servitude at 61.4359 acres of previously

unencumbered land that was taken as the new levee servitude.6 He valued that

acreage at $36,100.00 per acre. At $36,100.00 per acre, his opinion is the total loss

in value of acreage actually appropriated by the public authorities was

$2,217,836.00.7

6 As stated above, the parties later stipulated that the servitude taken on PDC’s property for the

new levee was 68.3502 acres. 7 61.4359 acres valued at $36,100.00 per acre = $2,217,835.99.

18 He also concluded that there was severance damage to the property on the

south side that is now outside of the levee system. He concluded that there are

254.5 acres in this orphaned area, and he placed a market value on that area after

the taking at $400 per acre.8 He found no severance damage on the north side of

the property. Mr. Justice concluded that the total just compensation owed to PDC

is $11,785,000, but his testimony did not include an explanation of how he arrived

at this total amount. He testified that the property was valued at $21,000,000.00

before the taking, but did not state his conclusion as to the value post-taking, which

was presumably $9,215,000.00 (the difference between $21,000,000.00 and

11,785,000.00), as found by the trial court.

Following Mr. Justice’s testimony, the parties stipulated that the amount of

the servitude taken on PDC’s property for the new levee was 68.3502 acres. PDC

then rested its case.

The first witness called by PPG was Kevin Wagner, USACE’s project

manager for the New Orleans to Venice Hurricane Protection Project. He

identified access roads on a map, which included two existing access roads and a

new one built by USACE. Mr. Wagner described the ramps being installed by

USACE for PDC’s access over the new levee. He said the ramps have a much

flatter slope than USACE normally constructs in order to provide easier access.

He said he is unaware of any permit requirement for access to utilize the ramps for

8 Mr. Cali, PDC’s consulting engineer, calculated that the actual surveyed acreage unprotected

by the new levee was 301.32 acres instead of 254.5 acres as assumed by Mr. Justice when he prepared his report. The trial court, in its findings of fact, stated that the acreage unprotected by the new levee was 300.1 acres.

19 the new levee after construction is completed. When asked about complaints made

regarding the levee project contractor interfering with PDC’s operations, Mr.

Wagner replied that alternative access routes were provided by the contractor while

construction activity was underway.

On the subject of drainage, he said no drainage problems have been brought

to his attention since construction began on the new levee. He explained that the

new drainage structure being built by USACE is designed to carry the same

amount of flow as before the construction of the new levee. He described the new

drainage structure, which through opened sluice gates and concrete pipes and

culverts will allow drainage from the south portion of the property to the north

portion through the new levee alignment to the drainage canal. He also stated that

the existing drainage canal along the back levee was widened and deepened.

On cross-examination, Mr. Wagner confirmed that after the levee

construction project is finished, PPG will be responsible for operating the sluice

gates and cleaning the trash screens. He said the sluice gates will only be closed in

the event of a potential incoming storm.

The next witness was David St. Marie, the President and Owner of Coastal

Engineering Solutions. He is a licensed professional engineer, and in his prior

employment with a different company, he became involved with the federal levee

project that is the subject of this litigation. His former employer oversaw the

design and construction reviews for the new levee system, including the revised

drainage system. On cross-examination, he acknowledged that he was not offering

20 opinions on PDC’s ability to operate after the levee construction, the sufficiency of

the drainage system or the adequacy of the access roads.

Scott Rousselle was the next witness. He is currently employed by PPG, and

his current position is Assistant Director for Coastal Restoration and Flood

Protection. He testified that when the levee project is completed, PPG will operate

and maintain the new structures being built by USACE, including the sluice gate

drainage structure. He said PPG will close the sluice gates when a storm

approaches, but the gates will otherwise remain open. He stated that the total

budget for his department is $300,000.00.

Henry Tatje was accepted as an expert in real estate appraisals. The trial

court limited his testimony to what was in his expert report. In 2019, he appraised

PDC’s property in connection with the taking that is the subject of this lawsuit.

The engineering firm handling appraisals for the levee system instructed Mr. Tatje

to follow the guidelines of The Uniform Appraisal Standards for Federal Land

Acquisitions, commonly referred to as “the Yellow Book.” He stated that these are

the guidelines that USACE requires to be followed for any of its projects.

Mr. Tatje testified that he conducted a “before and after” analysis to

determine an estimate of the value of the property before the acquisition by PPG

and after the acquisition to estimate the compensation owed to the landowner. He

said that in 2017, when the PDC property was appropriated, 239 acres of the

property were wetlands. He stated that this fact was significant because he knew

21 USACE would not allow any excavated material from wetlands to be used in their

levees.

Mr. Tatje stated that before the taking, the PDC property included 24.5214

acres of encumbered land and 551.4586 acres of unencumbered land, for a total

land area of 575.98 acres. He testified that the property had reportedly been used

as a borrow pit operation for many years and was otherwise vacant and

undeveloped land used for recreational hunting and fishing.

He noted that the PDC property was acquired by the current owners in 2008

for $1,305,966.00, or $2,267.00 per acre. He considered the assessed value and

annual tax load of the property for the year 2018 (his appraisal was completed in

2019). His highest and best use analysis considered market conditions, potential

uses and physical attributes, and he stated he considered those factors in

determining the most profitable use of the property. He testified that he could not

find information to convince him that there is a private market for materials from

the PDC property. After also considering comparable properties, Mr. Tatje’s

opinion was that the highest and best use of the PDC property was “farming,

ranching, hunting….those types of rural uses.”

Mr. Tatje toured the property before and after construction of new levee

began. He drove over the new levee ramps. He saw trucks going back and forth

over the levee ramps and did not see any ruts or experience any problems with

traversing the ramps. He saw the new drainage structure. His opinion was that the

22 property, including access and drainage, was at least the same as it was before the

taking other than the fact that it now includes the new levee.

Mr. Tatje found that before the taking, the value of the unencumbered

portions of PDC’s property was $2,900.00 per acre and the value of the

encumbered portions was $580.00 per acre, for a total pre-taking value of

$1,613,500.00. He further found that after the taking, the new levee does not

prevent PDC from continuing to use the property for recreational use but it might

cause some inconvenience due to the new levee cutting the property in half,

whereas there was no impediment before the taking. For that reason, he devalued

the north pit by 20% in his “after” analysis, or $2,320.00 per acre, but he did not

devalue any part of the south pit. He also devalued the properties underneath the

new servitudes by 90% because this portion of the land was previously

unencumbered. His “after” analysis resulted in a value for all of PDC property

types at $1,339,500.00, or $2,325.52 per acre. He subtracted the total “after” value

of $1,339,500.00 from the total “before” value of $1,613,500.00, to arrive at the

figure of $274,000.00 for his opinion of the amount of compensation owed to PDC

by PPG.

On cross-examination, he acknowledged that none of the comparable

properties he considered in his analysis were permitted for borrow pit use. He did

not attempt to value the minerals on PDC’s property. He stated that under the

Yellow Book guidelines he used in his analysis, he needed to find a substantial

volume of dollar amount sales to private entities in order to justify a conclusion

23 that a borrow pit operation was the highest and best use for the property. And he

did not find evidence of that, so his opinion was that the highest and best use of the

property was for recreational purposes.9

PPG rested its case, and PDC called John Helmers as its first rebuttal

witness. Mr. Helmers is a former employee of PPG, and was the Director of

Coastal Resources and Protection. He was responsible for overseeing levees and

repairs. At the time he held that position, there were only two people in that

department, Mr. Helmers and Mr. Scott Rousselle. His testimony differed from that

of Mr. Rousselle on the issue of the department’s budget. Mr. Rousselle said the

budget was $300,000.00, but Mr. Helmers said the department had no budget. Mr.

Helmers’ testimony was that PDC’s property would be a low priority for PPG for

levee repair after a storm.

The other rebuttal witness was Gary Chauvin, one of the managing partners

of PDC. He said he met with two appraisers in 2019, and denied saying that 90%

9 In its appeal brief, PPG referred to appraisals of the PDC property by Mr. Tatje and Ms.

Rebecca Rothschild in its determination that $274,000.00 was the amount of just compensation owed to PDC. PPG states that Mr. Tatje’s opinion as to the amount of just compensation owed to PDC was higher than that calculated by Ms. Rothschild so PPG tendered to PDC the amount calculated by Mr. Tatje. During PDC’s case-in-chief, excerpts of Ms. Rothschild’s deposition and several exhibits were introduced at trial in lieu of her testimony by agreement of the parties. She testified that she received instructions from USACE as to the methodology to be used in her appraisal, and the instructions referenced guidelines contained in the Yellow Book referred to in Mr. Tatje’s testimony. Ms. Rothschild did not consider the PDC borrow pit operation in her determination of the highest and best use of the property because she found that the vast majority of demand for PDC’s materials was from governmental entities, and the guidelines she was instructed to follow only allowed consideration of a use for which there was a competitive demand in the private market. Similar to Mr. Tatje’s conclusion, Ms. Rothschild concluded that the highest and best use of the PDC property was for agriculture, recreation and speculative uses. The excerpts of her testimony and attached exhibits do not include the amount she concluded to be owed to PDC for just compensation for the taking.

24 of PDC’s sales were for federal levees. He also said that percentage is not

accurate.

PPG then proffered additional testimony from Henry Tatje.

Following trial, the trial court rendered judgment in favor of PDC and

against PPG in the total amount of $14,958,600.00. The trial court issued written

reasons for judgment and 55 findings of fact. PPG now appeals, alleging ten

assignments of error.

DISCUSSION

“Appropriation, as opposed to expropriation, is carried out by a resolution of

the appropriating authority, without the need for a judicial proceeding....

Furthermore, appropriation involves the taking of a servitude, whereas

expropriation may involve the taking of ownership.” Bd. of Sup’rs of Louisiana

State Univ. & Agric. & Mech. Coll. v. Mid City Holdings, L.L.C., 14-0506, p. 13

(La. App. 4 Cir. 10/15/14), 151 So.3d 908, 915 (citing W. Jefferson Levee Dist. v.

Coast Quality Constr. Corp., 93-1718, pp. 6-7 (La. 5/23/94); 640 So.2d 1258,

1302). La. R.S. 38:301(C)(1)(a) states: “All 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.” For land taken by way of a permanent levee servitude, compensation is

fair market value of the property taken or destroyed before the proposed use. S.

25 Lafourche Levee Dist. v. Jarreau, 16-0788, 16-0904, p. 12 (La. 3/31/17), 217

So.3d 298, 307, (citing La. R.S. 38:301(C)(1)(h)).10

“The fair market value of property taken for public purposes is the price a

buyer is willing to pay after he has considered all of the uses to which the property

may be put, where such uses are not speculative, remote, or contrary to law.”

Jarreau, 16-0788, 16-0904, p. 20, 217 So.3d at 311 (citing W. Jefferson Levee

Dist. v. Coast Quality Constr. Corp., 93-1718, p.17, 640 So.2d at 1273). “The

current use of the property is presumed to be the highest and best use.” Id. (citing

W. Jefferson Levee Dist., p. 20, 640 So.2d at 1275).

“The trial court's factual determinations as to value of property and

severance damages, and his evaluation of and weight given to testimony of expert

witnesses, will not be disturbed on review in the absence of manifest error.” State

Dep’t of Transp. & Dev. v. Stumpf, 519 So. 2d 279, 282 (La. App. 5 Cir. 1988)

(citing State, Dep’t. of Transp. v. Van Willett, 386 So.2d 1023 (La. App. 3

Cir.1980); State, etc. v. Estate of Aertker, 404 So.2d 316 (La. App. 3 Cir.1981)).

“Severance damages must be shown to a reasonable certainty and must not be too

remote or speculative, for the mere possibility of severance damages is an

insufficient basis for an award.” W. Jefferson Levee Dist. v. Coast Quality Const.

10 La. R.S. 38:301(C)(1)(h) states:

The measure of compensation for lands and improvements taken or destroyed for levee and levee drainage purposes by way of a permanent levee servitude shall be the fair market value of the property taken or destroyed before the proposed use of the property or construction of the levee facilities, without allowing any change in value caused by the construction of the levee facilities. The measure of damages, if any, to the remaining property of the owner by reason of the use or destruction of a portion of the property is determined on a basis of immediately before and immediately after the use or destruction of the property for levee drainage construction, taking into consideration the effects of the completion of the project in the manner proposed or planned.

26 Corp., 640 So.2d 1258, 1297 (La. 1994) (citing State, Through Dep’t of Transp.

and Dev. v. Townsend, 473 So.2d 99, 102 (La. App. 3 Cir. 1985)).

In the first assignment of error, PPG argues the trial court erred in finding

that PDC’s access to its property would be impaired by the new levee. PPG points

to the trial court’s findings of fact wherein he found that PDC’s only access to its

property is over the new levee. The trial court also found that PDC will be subject

to government permission to cross the levee and further found that the access

ramps built by USACE for PDC’s use were not designed for the type of truck

traffic associated with borrow pit operations and will likely deteriorate rapidly.

PPG argues that in addition to the central and downriver access servitudes

which require crossing the levee to access the PDC property, a third upriver

servitude provides access to the PDC property and is unaffected by the levee

project. This alleged third access road runs from Louisiana Highway 23 to the

northwest corner of the PDC property. The access road is referenced on exhibits

including a Map of Division from the 2006 survey of the PDC property by Hugh

McCurdy and in a letter from Philip Ramon to USACE. PDC contends that the

existence of this third access servitude was never raised in the court below, and

therefore cannot be considered by this Court.

PDC is correct that no information about a third access road from Highway

23 to the PDC property was developed through trial testimony, including whether

or not PDC ever used this road or even had the right to use this road. For that

reason, we find no error in the trial court’s finding that PDC’s only access to its

property is now over the new levee.

However, we find the record does not show that PDC proved that its access

to its property is or will be impaired by the new levee. The two access roads at

27 issue were built by USACE specifically for use by PDC. The testimony of Michael

Gaffney and Philip Ramon regarding the potential for USACE to deny permission

to PDC to use the access ramps as well as the potential for the access ramps to

quickly deteriorate based on the materials used to construct the ramps is purely

speculative. Mr. Ramon cited a section of USACE’s Levee Permit Policy, which

states, in part: “Work on or near a hurricane risk reduction levee will be restricted

during hurricane season and will be evaluated on a case-by-case basis for possible

waiver.”11 We agree with PPG’s argument that this statement in the policy does

not address the issue of PDC’s ability to cross the levee.

The Notice of Appropriation specifically reserved to the landowners “all

such rights and privileges in the land as may be used without interfering with or

abridging the rights and easement hereby acquired.” Nothing in the Notice of

Appropriation supports PDC’s contention that PDC will not be allowed to use the

access roads installed by USACE for PDC’s use.12

The record shows that PDC has not been denied access to its property and

trucks are using the ramps to cross the levee. We find merit in PPG’s argument that

PDC’s claims regarding potential access problems are based on the hypothetical

occurrence of future events. “[T]he mere possibility of severance damages is an

insufficient basis for an award.” W. Jefferson Levee Dist. v. Coast Quality Const.

11 The USACE Levee Permit Policy about which Mr. Ramon testified was not introduced into

evidence at trial. 12 One of the trial court’s findings of fact cites La. R.S. 38:213, which provides that no person

shall ride, drive or haul upon public levees unless ample provision is made to guard against damage to the levees from wear, tear and abuse. Section A of that statute also provides, in part: “Each levee district shall publish guidance, erect signage, and require special permits as they deem appropriate to allow them to make provisions for limited riding, driving, or hauling.” However, Section D of that statute provides, in part: “Nothing in this Section shall interfere with the crossing over any public levees, at ramps or inclines established under plans and specifications of the Department of Transportation and Development, or, for levees or integrated coastal protection projects in the coastal area as defined in R.S. 49:214.2, the Coastal Protection and Restoration Authority.”

28 Corp., 640 So.2d 1258, 1297 (La. 1994) (citing State, Through Dep’t of Transp.

and Dev. v. Townsend, 473 So.2d 99, 102 (La. App. 3 Cir. 1985)). Because PDC

did not prove that its access to its property will be impaired by the new levee, we

conclude that the trial court erred in so finding.

The second and third assignments of error relate to the trial court’s finding

that the new level alignment would deprive PDC of the ability to use the orphaned

tract (the south pit) as a borrow pit. In these two assignments of error, PPG argues

that the trial court erred in so finding and in accepting Mr. Justice’s loss valuations

for that portion of the PDC property.

PPG cites the trial court’s finding that the alignment of the new levee

through PDC’s property deprives PDC of the only existing non-wetland working

area to process extracted material. PPG argues that this finding was erroneous

because it was based on testimony of PDC’s witnesses that a special permit would

be needed to cross the levee. We agree.

As PPG notes, Mr. Ramon testified that the south pit has some area to

process material. His testimony regarding PDC’s inability to access that additional

non-wetland acreage was based on his belief that a permit would be needed for

trucks over a certain weight to cross the levee. As stated above, PDC’s evidence on

the issue of the potential for USACE to require a permit to cross the levee was

merely speculative. As will be more fully discussed in the eighth assignment of

error regarding Mr. Justice’s loss valuations, PDC’s failed to prove its claim that

access issues have affected its ability to use the south pit. Therefore, we find the

trial court erred in finding that the placement of the new levee deprived PDC of

access to the south pit, and in accepting Mr. Justice’s diminished value of the south

pit in his calculation of the compensation owed to PDC.

29 In the fourth assignment of error, PPG argues that the trial court erred in

finding that PDC’s north field will have increased drainage issues after the new

levee is constructed. PPG cites the trial court’s finding that the north field will

likely have drainage issues because the existing drainage flow, toward the rear of

the property, will have to be reversed to flow toward the new drainage canal on the

northern boundary of PDC’s property. Mr. Wagner testified regarding efforts

being made by USACE to reverse the original drainage flow. PDC’s evidence did

not establish that drainage in the north field will be a greater problem after the

levee is completed than it was before construction began. Mr. Wagner testified

that no drainage problems have been brought to his attention since construction

began on the new levee. PDC did not offer any evidence that increased drainage

problems have actually occurred since construction of the new levee began.

Mr. Wagner also testified that the new drainage structure being built by

USACE is designed to carry the same amount of flow as before the construction of

the new levee. Testimony to the contrary by PDC witnesses regarding potential

drainage issues resulting from the construction of the new levee was purely

speculative and cannot be the basis for an award for damages.

In the fifth assignment of error, PPG argues that the trial court erred in

finding that the potential for future flooding during storm surge events damaged

the orphaned tract. PPG argues that this finding is clearly wrong because it is

based entirely on speculation that the risk of flooding after the new levee is

constructed will be greater than before. We agree. PPG correctly states that PDC

offered no evidence to establish that drainage time will be longer after the new

levee is constructed than it was for prior flooding events. Because the record

includes only speculative evidence on the issue of the increased potential for future

30 flooding damaging the orphaned tract, we conclude that the trial court erred in so

finding.

In the sixth assignment of error, PPG argues that the trial court abused its

discretion in admitting certain evidence produced by PDC after the discovery

deadline while excluding PPG’s evidence produced after the discovery deadline.

PPG’s argues the trial court abused its discretion in denying PPG’s request to

introduce correspondence between USACE and PDC regarding regulatory activity

related to PDC’s borrow pit operations, yet allowed PDC to supplement its

discovery responses with a Code of Evidence Article 1006 summary exhibit, which

included source documents contained in the summary that were disclosed to PPG

only a week before trial.13

PPG acknowledged that the correspondence it sought to introduce was

produced after the discovery deadline, but alleged that this delay was solely due to

USACE’s failure to timely comply with PPG’s timely request for those documents.

PPG also argues that the trial court abused its discretion in not allowing Mr. Tatje

to testify regarding his criticisms of the methodology employed by Mr. Justice.

PPG argues that while excluding its evidence produced after the discovery

deadline, the trial court nonetheless allowed PDC to introduce a summary exhibit

seven days before trial that included newly disclosed invoices that provided data

supporting the summary exhibit. PPG argues that allowing this evidence that was

produced by PDC just days before trial materially prejudiced PPG because Mr.

13 La. C.E. art. 1006 states:

The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

31 Justice relied on this information to determine that the highest and best use of the

PDC property was a borrow pit.

“The trial court is granted broad discretion in its evidentiary rulings, which

are not to be disturbed on appeal absent a clear abuse of discretion.” Detillieu v.

La. Med. Mut. Ins. Co., 23-226, p. 7 (La. App. 5 Cir. 7/9/24), 392 So.3d 918, 928

(quoting Moonan v. La. Med. Mut. Ins. Co., 16-113, p. 7 (La. App. 5 Cir. 9/22/16),

202 So.3d 529, 534). “The proper inquiry for determining whether a party was

prejudiced by a trial court's alleged erroneous ruling on the admission or exclusion

of evidence is whether the alleged error, when compared to the entire record, had a

substantial effect on the outcome of the case. If the effect on the outcome of the

case is not substantial, reversal is not warranted.” Landry v. City of Mandeville, 21-

1362, p. 12 (La. App. 1 Cir. 4/27/22), 342 So.3d 337, 347; La. C.E. art. 103(A);

(quoting Chiasson v. La. Med. Mut. Ins. Co., 19-0617, 19-0618, p. 6 (La. App. l

Cir. 6/18/20), 307 So.3d 204, 209.)

PPG filed a motion in limine to exclude PDC’s summary exhibit on the

grounds that the summary data in the exhibit is not an accurate representation of

the documents PDC produced in discovery as its purported sales history. The

motion was argued at the beginning of trial. Counsel for PPG stated that seven

days before trial, PDC produced invoices that it claims as summary source

material. Counsel for PDC argued that PPG had at least a week to review the

additional backup documentation. PDC claimed it should be allowed to introduce

a summary exhibit if authenticated by the witness who prepared it. The trial court

denied PPG’s motion in limine, and noted that PPG’s objection was only to the

summary exhibit and not to the underlying data.

32 While we find no abuse of discretion in the trial court’s decisions to disallow

the introduction of the evidence produced by PPG after the discovery deadline or

in limiting the testimony of Mr. Tatje to the opinions contained in his written

report, we do find an abuse of the trial court’s discretion in allowing the summary

exhibit that included the additional invoices. However, as discussed below, even

without the invoices at issue, there was sufficient evidence in the record to support

Mr. Justice’s conclusion that the highest and best use of PDC’s property was as a

borrow pit operation. Therefore, we conclude that any error in admitting the

summary exhibit that included the invoices at issue was harmless as that evidence

did not have a substantial effect on the outcome of the case.

In the seventh assignment of error, PPG argues that the trial court erred in

finding that PDC’s property had a highest and best use as a borrow pit. PDC’s

expert real estate appraiser, Mr. Justice, concluded after considering comparable

properties and other evidence that the highest and best use of PDC’s property was

as a borrow pit. PPG’s expert real estate appraiser, Mr. Tatje, concluded that the

highest and best use was as farming or ranching or recreational uses such as

hunting. The trial court accepted the opinion of Mr. Justice over that of Mr. Tatje

on the issue of the determination of highest and best use.

Mr. Justice and Mr. Tatje presented testimony on the different methods they

used to arrive at their determinations of highest and best use. PPG argues that Mr.

Justice’s opinion regarding highest and best use should not have been accepted by

the trial court because he did not follow the standards set forth in the Uniform

Appraisal Standards for Federal Land Acquisitions, known as the Yellow Book.

PDC argues that PPG does not cite any Louisiana authority requiring that these

federal standards be applied when valuing property appropriated by a local

33 governing authority. We have found no Louisiana authority to support PPG’s

argument that Mr. Justice’s opinions should not have been accepted because he did

not follow the federal Yellow Book standards.

The trial court found that the highest and best use of the PDC property was

as a borrow pit. While the parties presented conflicting evidence as to the demand

for PDC’s materials before and after the appropriation in 2017, the record is clear

that PDC operated as a borrow pit before the appropriation. Mr. Justice performed

a land residual analysis to determine highest and best use of PDC’s property and

concluded that was as a borrow pit. The record supports this determination, and we

find no error in the trial court’s finding that the highest and best use of PDC’s

property is as a borrow pit.

In the eighth assignment of error, PPG argues that the trial court erred in

accepting Mr. Justice’s property valuations. The trial court awarded

$14,958,600.00 to PDC as the fair market value for its property appropriated for

the levee project, and stated that this amount includes compensation for the

diminished portion of the property. In its reasons for judgment, the trial court

stated that “the expert testimony presented by plaintiff, in particular the testimony

of its expert appraiser, Baldwin Justice, established the measure of compensation

owed to plaintiff for its ‘orphaned’ property.”

“The factfinder is not required to accept or reject the testimony of any

particular witness, but may give whatever weight it considers appropriate to the

testimony of any and all witnesses in making a factual determination of the value

of the property taken.” City of Baton Rouge v. Mucciacciaro, 21-0656, p. 5 (La.

App. 1 Cir. 5/25/22), 342 So.3d 955, 963 (citing Terrebonne Par. Consol. Gov't. v.

Richard, 15-0728, pp. 8-9 (La. App. 1 Cir. 6/2/16), 196 So.3d 684, 688, 690).

34 As stated above, PDC offered only speculative evidence on the issue of

potential access and drainage issues negatively affecting PDC’s ability to operate

its borrow pit operation. PDC did not prove that the new levee servitude has

prevented or will prevent it from accessing its property, and also did not prove that

the new levee has caused or will cause increased drainage problems on the

property. The record supports PPG’s argument that PDC’s evidence as to potential

access and drainage problems caused by the new levee consisted only of mere

speculation. Accordingly, to the extent that Mr. Justice’s valuations were based on

PDC’s unproven claims regarding lack of access and increased drainage problems

affecting the value of the property, we find the trial court erred in accepting Mr.

Justice’s total valuations.

However, we conclude there is sufficient support in the record for Mr.

Justice’s acreage values based on his search of comparable properties. Mr. Justice

concluded that the 118 acres of acres of active mining cells that are not

encumbered by the new levee servitude have a value of $140,000.00 per acre. The

remaining 457 acres, which support the active mining operation, have a value of

$10,000.00 per acre. Therefore, we conclude that a value of $10,000.00 per acre

for the 68.3502 acres comprising the new levee servitude is supported by the

record, for a total compensation award of $683,502.00. We will amend the trial

court judgment accordingly.

In the ninth assignment of error, PPG argues that the trial court erred in

excluding Mr. Tatje’s appraisal report from evidence. PDC’s attorney objected to

the introduction of the report as inadmissible hearsay because the witness was in

court to testify as to his report. The trial court sustained the objection.

35 PPG argues that Mr. Tatje’s report was prepared before PDC filed this

lawsuit, and was not prepared in connection with litigation under the provisions of

La. C.C.P. art. 1425 by a “specially retained expert.” PPG argues that the report

was admissible under the public records exception to the hearsay rule. La. C.E. art.

803(8).

PDC correctly notes that PPG did not make a contemporaneous objection

when the trial court sustained PDC’s objection to the introduction of Mr. Tatje’s

report. “[W]hen a party fails to lodge a contemporaneous objection to an

evidentiary ruling, the party waives the right to complain on appeal.” Roberts v.

Boxer, 19-1038, p. 4 (La. App. 4 Cir. 11/18/20), 311 So.3d 513, 517 (citing Aisola

v. Beacon Hosp. Mgmt., Inc., 13-1101, p. 10 (La. App. 4 Cir. 4/2/14), 140 So.3d

71, 78; St. Martinville, L.L.C. v. La. Tax Comm’n, 05-0457, p. 5 (La. App. 1 Cir.

6/10/05), 917 So.2d 38, 42). Furthermore, any error in excluding the report would

be harmless as Mr. Tatje was questioned at trial about his report and opinions.

In the tenth and final assignment of error, PPG argues that the trial court

erred in awarding PDC attorneys’ fees in the amount of $2,500.000.00. La. R.S.

38:301(C)(2)(f), regarding the award of attorneys’ fees for cases involving land

taken for levee purposes, provides:

Reasonable attorneys’ fees may be awarded by the court if the amount of the compensation found to be due by the state, the levee board, or the federal government is less than the amount of compensation awarded in any judgment seeking additional compensation. The attorneys' fees shall not exceed twenty-five percent of the difference between the award and the amount found to be due by the state, the levee board, or the federal government.

Stephen Scandurro, an attorney for PDC, testified regarding the work

performed by his law firm in this matter. As stated above, we are amending the

36 trial court’s judgment to reduce the compensation award owed to PDC to

$683,502.00. The amount tendered by PPG prior to the filing of this lawsuit was

$274,000.00.14 The difference between these two amounts is $409,502.00. 25% of

$409,502.00 is $102,375.50. We find the record supports an award of attorneys’

fees in that amount.

CONCLUSION

Based on the foregoing, we conclude that PDC is only entitled to just

compensation for the taking of the land comprising the new levee servitude, or

68.3502 acres. We further conclude that the fair market value of that portion of the

property is $10,000.00 per acre. Accordingly, we hereby amend the trial court

judgment to reduce the amount awarded in favor of PDC and against PPG for the

fair market value of the PDC property appropriated for the levee project from

$14,958,600.00 to $683,502.00. The judgment is also amended to reduce the

award of attorneys’ fees from $2,500,000.00 to $102,375.50. In all other respects,

the trial court judgment is affirmed.

14 PPG was acting on behalf of the West Bank Levee District in the levee project.