Olivier Plantation, L.L.C. v. Parish of St. Bernard
151 So. 3d 965
La. Ct. App.2014Background
- After Hurricane Katrina, St. Bernard Parish issued a 2005 commandeering order and the Lake Borgne Basin Levee District (LBBLD) authorized entry so the Army Corps of Engineers (USACE) could obtain borrow, access, and repair the Lake Pontchartrain levee adjacent to Olivier Plantation’s land.
- USACE excavated borrow material from Olivier’s property; USACE correspondence indicated it would identify and pay just compensation, but plaintiffs received no settlement.
- Olivier sued St. Bernard and LBBLD in state court (May 2007) under Louisiana Constitution Art. I § 4 for inverse condemnation. Federal proceedings involving USACE were severed and plaintiffs’ state-law takings claims were remanded.
- Trial on stipulated evidence resulted in judgment for Olivier finding defendants jointly liable and awarding compensation for borrow at $5.00/yd³ (adjusted principal after settlements: $1,428,335.00).
- Trial court separately awarded attorney’s fees under La. R.S. 13:5111; it applied a 33% award (contingency contract rate) and denied defendants’ requests to limit fees to billed discounted hourly amounts or to the 25% cap in the levee-expropriation statute.
- On appeal the court affirmed liability and damages and upheld the attorney-fee award as reasonable under the Williamson factors and La. R.S. 13:5111.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether St. Bernard and LBBLD effected a taking under the Louisiana Constitution | Olivier: state commandeering/order + LBBLD authorization created a compensable state taking | Defendants: the work was a federal USACE project; state entities lacked control and thus are not liable | Court affirmed state liability (followed Borgnemouth) — defendants liable for inverse condemnation here |
| Proper statutory basis and cap for attorney’s fees | Olivier: fees governed by La. R.S. 13:5111; no statutory cap; contingency agreement relevant | Defendants: apply levee-expropriation cap (La. R.S. 38:387(E)) — limit to 25% or alternatively limit to discounted hours billed | Court held La. R.S.13:5111 governs (no 25% cap); contingency agreement may be considered; 33% award not an abuse of discretion |
| Whether court should limit fee award to discounted hourly amounts actually billed and paid | Olivier: entire fee agreement (blended contingency + credit for hours billed) is relevant to fee determination | Defendants: fee award should be limited to amounts actually billed/paid ($194,694.75) | Court rejected limiting fee to billed discounted hours; whole agreement considered; fee upheld |
| Standard for reasonableness of attorney’s fees | Olivier: expert and trial court findings support reasonableness (Williamson factors; novel, complex, lengthy litigation) | Defendants: fee excessive under Williamson factors and comparative cases | Court reviewed factors and found 33% reasonable given novelty, difficulty, time, skill, and contingent risk |
Key Cases Cited
- State, Dept. of Transp. and Dev. v. Williamson, 597 So.2d 439 (La. 1992) (factors for determining reasonable attorney’s fees)
- Covington v. McNeese State Univ., 118 So.3d 343 (La. 2013) (standard of review for attorney’s-fee awards)
- Rivet v. State, Dept. of Transp. and Dev., 800 So.2d 777 (La. 2001) (contingency contracts considered but not binding on fee awards)
- Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, 141 So.3d 891 (La. App. 4th Cir. 2014) (companion decision addressing same defendants and issues)
- Vuljan v. Bd. of Com’rs of Port of New Orleans, 170 So.2d 910 (La. App. 4th Cir. 1965) (if project is exclusively federal, state not liable for takings)
- Cooper v. City of Bogalusa, 198 So. 510 (La. 1940) (federal control over project negates state liability for takings)
- Holzenthal v. Sewerage & Water Bd. of New Orleans, 950 So.2d 55 (La. App. 4th Cir. 2007) (fact-specific analysis whether project is federal or state)
- Petrovich v. State of Louisiana, 181 So.2d 811 (La. App. 4th Cir. 1966) (local furnishing of rights-of-way does not alone render project state-controlled)
- National Food & Beverage Co. v. United States, 96 Fed. Cl. 258 (Fed. Cl. 2010) (Court of Federal Claims finding USACE liable where project was federal and Corps directed and executed taking)