United States of America v. Land et al

Filing 54

ORDER AND REASONS granting 42 Motion for Just Compensation. FURTHER ORDERED: the just compensation for the taking of Tract 312-E, payable by the Government to the defendants/claimants, is the total sum of $20,000. FURTHER ORDERED: the Government will submit a proposed judgment consistent with this Order and Reasons within 14 days of the date of this Order and Reasons. Signed by Judge Eldon E. Fallon on 11/16/2022. (mmm)

Case 2:21-cv-00192-EEF-DPC Document 54 Filed 11/16/22 Page 1 of 9

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA

CIVIL ACTION

VERSUS

NO. 21-192

LAND, ET AL

SECTION "L" (2)
TRACT NO. 312E-1
ORDER AND REASONS

Before the Court is the Government’s motion for determination of title and request for
hearing to determine just compensation. R. Doc. 42. The Court earlier granted the motion insofar
as the Court ordered that the issues of ownership and just compensation for the taking of Tract No.
312E-1 will be resolved by a hearing on November 16, 2022, on the papers, because no defendant
had appeared or answered. R. Doc. 42. On October 18, 2022, the Government filed an affidavit
into the record of this case certifying that notice of the Court’s order regarding the hearing was
published in several newspapers of general circulation in Louisiana. R. Doc. 50. Having considered
the record, the briefing, and the applicable law, the Court now rules as follows.
I.

BACKGROUND
On January 29, 2021, the Government initiated this land condemnation action in which the

Government has condemned, for the public use of flood protection, a flood protection levee
easement over real property consisting of 0.741 acres of land, more or less, situated in Plaquemines
Parish, Louisiana, and designated as Tract No. 312E-1, as more fully described in the record at R.
Doc. 2 at 3. On February 8, 2021, the Government deposited $20,000.00 into the Court’s registry,
and title vested in the Government upon the deposit of the funds. No funds have been withdrawn.
The Government has identified the persons who may have ownership interest in Tract No.
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312E-1. Prior to filing the instant complaint, the Government obtained title evidence indicating
that the Tract was owned by Myrtle Rodgers Avist, Harold M. Avist, Penny Coleman, Jr.,
Demaries Coleman Penn aka Demaris Penn, Ramona L. Coleman, Deshonda Coleman, Geraldine
Coleman Williams aka Geraldine Williams, Karen Walker, Sheila Walker, Deborah Walker
Banks, Dianne Walker Davis, Keith Walker, Andrew Walker, Jr., Gary Walker, Damon Walker,
Edwina A. Coleman Kees aka Edwena Coleman Kees, Peter Coleman, Jr., Carolyn Coleman
Gillam, Jacqueline Coleman Hughes, Hattie Matthews aka Hattie W. Matthews aka Hattie
Williams Mathews, George Williams aka George Williams, III, Alfred Williams, Olga Jones
Beasley, Lula Mae Lewis Davis, Florida Jones Merrick, Betty Pinkins Jones, Lavern Jones Moses,
Sylvia Andry Davis, Ramsey Joseph Andry, Jr., Roslyn Andry Miller, Earl Fox, Jr., Essie L. F.
Brown, Kerbey Jones aka Kirby Jones, Darrick Bickham, Gary Hughes, Sr., Linda H. Williams,
Carrol Rodgers, Jr., Irvin Rodgers, Hercules Rodgers, Gulf Loan Company, Inc., Fanny Hymes
aka Fannie Rodgers Hymes aka Fannie Rodgers Hynes, Lillian J. Wilson, Lorraine J. Henderson,
Relief Jones, Jr., Raymond Riley, Scheaun R. Lewis aka Scheuan R. Lewis, Bobbi Smith, and
Timothy Leon Smith aka Tim Smith. R. Doc. 42-2. Fanny and Victor Mitchell purchased the
property which contains the subject Tract as community property in 1925. Id. It appears that Victor
Mitchell died intestate on September 12, 1940, and Fanny Mitchell died intestate on April 4, 1944.
Id. Victor and Fanny Mitchell had four daughters, Lodgy Mitchell Cook, Etherling Mitchell
Franklin, Hattie Mitchell Coleman and Fannie Mitchell, all of whom are deceased. Id. According
to the title evidence, the subject Tract is now owned by the 48 heirs, successors, and assigns of
Lodgy Mitchell Cook, Etherling Mitchell Franklin, Hattie Mitchell Coleman, and Fannie Mitchell.
Id. All known living heirs, assigns and interested parties were named in Schedule G of this
proceeding. R. Doc. 2 at 9–14; R. Doc. 10. During negotiations, Plaintiff learned that Carrol
Rodgers, Jr. died in 2014. R. Doc. 42-3.
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After recording the Notice of Lis Pendens with the Plaquemines Parish Clerk of Court,
Plaintiff obtained updated title through the date of the Notice to ensure that all parties potentially
holding an interest had been named. R. Doc 42-4. The updated title evidence identified only one
new transaction in the chain of title, a Judgment of Possession in the Succession of Myrtle Rogers
Avist recorded on February 9, 2017, as COB 1374, Page 207, in the conveyance records of
Plaquemines Parish, Louisiana. R. Doc. 42-5. Myrtle Rogers Avist died testate leaving her entire
estate to her husband Harold M. Avist, Sr. Id. Harold M. Avist, Sr. already had an interest in the
subject property and was listed as an owner on Schedule G of the Complaint in Condemnation. R.
Doc. 10-2 at 1. Thus, it was not necessary to add new parties to the proceeding. None of the
defendants have appeared or answered.
The Government submitted an Attorney’s Opinion of Title that supports the Government’s
determination of the likely ownership of this Tract. R. Doc. 42-6. Prior to the filing of this action,
the Government obtained a trial appraisal of Tract 312E-1 that estimated $13,350.00 as just
compensation for the real estate interest acquired in the 0.741 acres of land. R. Doc 42-7.
II.

LAW AND ANALYSIS
A. Ownership of Tract 312E-1
Federal courts sitting in condemnation cases are authorized to determine who among

competing claimants held title to land prior to its condemnation. Pursuant to Rule 71.1 of the
Federal Rules of Civil Procedure, the Court “tries all issues, including compensation, except when
compensation must be determined by [a specially constituted tribunal or by a jury].” As the
Supreme Court has observed:
The Rule provides that, except for the single issue of just compensation, the trial
judge is to decide all issues, legal and factual, that may be presented. It is for him
to decide “all issues” other than the precise issue of the amount of compensation to
be awarded.
United States v. Reynolds, 397 U.S. 14, 19-20 (1970). Thus, the Court has jurisdiction to determine
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whether a defendant-claimant has a compensable interest and is thus entitled to present evidence as
to just compensation at a trial on that issue. Rule 71.1(h) reserves this determination, properly
disposed of as a preliminary matter, to the Court.
The Government has identified the persons who may have an ownership interest in Tract
312E-1, all informed by the title company’s review of the chain of title. R. Doc. 42-2. The Court
accepts the Government’s uncontested and factually-supported submission. The Court finds that
the Tract’s owners and their relative ownership interests are as follows:
OWNER

PERCENT SHARE

HAROLD M. AVIST

.2292

MYRTLE ROGERS AVIST

.2380

LILLIAN J. WILSON

.0047

LORRAINE J. HENDERSON

.0047

RELIEF JONES, JR.

.0046

SYLVIA DAVIS

.0227

DERRICK BICKMAN

.0091

EARL FOX, JR.

.0090

ESSIE L. F. BROWN

.0091

GARY L. HUGHES

.0090

LINDA H. WILLIAMS

.0090

BETTY PINKINS JONES

.0075

GULF LOAN COMPANY, INC.

.0083

HERCULES RODGERS

.0007

IRVIN RODGERS

.0091

CARL RODGERS, JR.

.0091
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FANNIE RODGERS HYMES

.0090

KERBEY JONES

.0075

LULA MAE JONES DAVIS

.0076

FLORIDA JONES MERRICK

.0076

LAVERN JONES MOSES

.0075

OLGA JONES BEASLEY

.0075

RAYMOND RILEY

.0046

SCHEUAN RILEY LEWIS

.0046

BOBBIE SMITH

.0023

TIM SMITH

.0023

EDWENA COLEMAN KEES

.0762

ALFRED WILLIAMS

.0254

HATTIE WILLIAMS MATTHEWS

.1014

GEORGE WILLIAMS

.0254

CAROLYN COLEMAN GILLAM

.0095

PETER COLEMAN, JR.

.0095

JACQUELINE C. HUGHES

.0095

PENNY COLEMAN, JR.

.0135

GERALDINE COLEMAN WILLIAMS

.0135

DEMARIES PENN

.0135

RAMSEY JOSEPH ANDRY, JR.

.0113

ROSELYN ANDRY MILLER

.0112

RAMONA L. COLEMAN

.0111

DESHANDA COLEMAN

.0111
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KAREN WALKER

.0017

SHELIA WALKER

.0017

DEBORAH BANKS

.0017

DIANNE DAVIS

.0017

KEITH WALKER

.0017

ANDREW WALKER, JR.

.0017

GARY WALKER

.0017

DAMON WALKER

.0017

B. Just Compensation
In this case, there is no jury demand, and the Court may, therefore, make a determination
of just compensation. Fed. R. Civ. P. 71.1(h). Pursuant to Rule 71.1(e)(3), “a defendant -- whether
or not it has previously appeared or answered -- may present evidence on the amount of
compensation to be paid and may share in the award.” Although the Government published notices
in the newspaper, nobody has appeared to contest the Government’s submission as to just
compensation.
Just compensation is the fair market value of the property on the date of its appropriation.
Kirby Forest Indus. v. United States, 467 U.S. 1, 9-10 (1984). The Government has presented an
appraisal of the property that states that just compensation in the amount of $13,350.00 is proper
and appropriate. R. Doc. 42-7. Again, no party has challenged this just compensation valuation or
submitted an alternative estimate of just compensation. Although the trial appraisal estimated the
Tract’s value to be $13,350.00 the Government deposited $20,000 in just compensation based upon
a Department of the Army Offer to Sell agreement, which was accepted during negotiations with
the landowners. On the one hand, the record includes evidence that could support a finding that
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$13,350 is the fair market value of Tract 312E-1; however, the Government offered certain owners
$20,000 for the Tract and the Government has represented that it is just to compensate the owners
of the property this sum, which it deposited into the Court’s registry. Accordingly, this Court finds
that $20,000 constitutes just compensation for the taking of Tract 312E-1.
Moreover, the Court finds that just compensation should be distributed as follows:
OWNER

AMOUNT

HAROLD M. AVIST

$4,584.00

MYRTLE ROGERS AVIST

$4,760.00

LILLIAN J. WILSON

$94.00

LORRAINE J. HENDERSON

$94.00

RELIEF JONES, JR.

$92.00

SYLVIA DAVIS

$454.00

DERRICK BICKMAN

$182.00

EARL FOX, JR.

$180.00

ESSIE L. F. BROWN

$182.00

GARY L. HUGHES

$180.00

LINDA H. WILLIAMS

$180.00

BETTY PINKINS JONES

$150.00

GULF LOAN COMPANY, INC.

$166.00

HERCULES RODGERS

$14.00

IRVIN RODGERS

$182.00

CARL RODGERS, JR.

$182.00

FANNIE RODGERS HYMES

$180.00

KERBEY JONES

$150.00
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LULA MAE JONES DAVIS

$152.00

FLORIDA JONES MERRICK

$152.00

LAVERN JONES MOSES

$150.00

OLGA JONES BEASLEY

$150.00

RAYMOND RILEY

$92.00

SCHEUAN RILEY LEWIS

$92.00

BOBBIE SMITH

$46.00

TIM SMITH

$46.00

EDWENA COLEMAN KEES

$1,524.00

ALFRED WILLIAMS

$508.00

HATTIE WILLIAMS MATTHEWS

$2,028.00

GEORGE WILLIAMS

$508.00

CAROLYN COLEMAN GILLAM

$190.00

PETER COLEMAN, JR.

$190.00

JACQUELINE C. HUGHES

$190.00

PENNY COLEMAN, JR.

$270.00

GERALDINE COLEMAN WILLIAMS

$270.00

DEMARIES PENN

$270.00

RAMSEY JOSEPH ANDRY, JR.

$226.00

ROSELYN ANDRY MILLER

$224.00

RAMONA L. COLEMAN

$222.00

DESHANDA COLEMAN

$222.00

KAREN WALKER

$34.00

SHELIA WALKER

$34.00
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DEBORAH BANKS

$34.00

DIANNE DAVIS

$34.00

KEITH WALKER

$34.00

ANDREW WALKER, JR.

$34.00

GARY WALKER

$34.00

DAMON WALKER

$34.00

III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that the Government’s motion is GRANTED.
IT IS FURTHER ORDERED that the just compensation for the taking of Tract 312-E,

payable by the Government to the defendants/claimants, is the total sum of $20,000.
IT IS FURTHER ORDERED that the Government will submit a proposed judgment
consistent with this Order and Reasons within 14 days of the date of this Order and Reasons.

New Orleans, Louisiana, on this 16th day of November, 2022.

___________________________________________

ELDON E. FALLON
UNITED STATES DISTRICT JUDGE

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