Aertker et al v. Placid Holding Company et al

Filing 75

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Carl J. Barbier on 9/27/12. (SEK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

AERTKER ET AL.

CIVIL ACTION

VERSUS

NO: 07-473

PLACID HOLDING COMPANY ET
AL.

SECTION: "J” (5)

FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter was tried before the Court, sitting without a
jury, on June 21, 2012. Having considered the testimony and
evidence at trial, the arguments of counsel, and the applicable
law, the Court now issues the following findings of fact and
conclusions of law in accordance with

Federal Rule of Civil

Procedure 52(a).
PROCEDURAL HISTORY AND BACKGROUND FACTS
On April 11, 1936, W. Patrick Aertker, the husband of Bessie
Brown

Aertker,

Plaintiffs’

following property by deed:

ancestors

in

title,

acquired

the

All of Section 3, Township 7 North, Range 1 East,
LaSalle Parish, Louisiana, less and except the South
1/2 of the Southeast 1/4 thereof

(the “Aertker Land”).

On December 22, 1948, W. Patrick Aertker leased the timber
and wood products on the Aertker Land to Herbert N. Tannehill
(“Mr.

Tannehill”)

for

a

term

of

ninety-nine

years

(“Timber

Lease”). The Timber Lease granted Mr. Tannehill the right to
conduct reforestation operations on the land, to plant and grow
trees, to deaden, cut, and remove trees and forest products, and
the right to ingress and egress for the purpose of carrying on
these operations. The lease did not grant Mr. Tannehill the right
to grant servitudes or to engage in any operations unrelated to
the timber operations. Moreover, the lease specifically reserved
to W. Patrick Aertker the right to any oil, gas, or mineral
leases on the property as well as the rights for ingress and
egress to inspect the property and, among other things, “lay
pipeline.”
On

September

25,

1972,

by

mesne

conveyances,

Louisiana-

Pacific Corp. (“Louisiana-Pacific”) succeeded to the interest of
Mr. Tannehill and became “Lessee” of the Aertker Land pursuant to
the

Timber

Lease.

On

September

16,

1981,

Louisiana-Pacific

granted Placid Refining Co. (“Placid”) a right-of-way, 45 feet in
2

width and 1.214 miles in length, over the Aertker Land.1 The
right-of-way
removal

of

authorized
an

8-inch

the

wide

construction,

crude

oil

maintenance,

pipeline

and

(“Searcy-Boyce

Pipeline”). Specifically, the right-of-way was granted over and
across Section 3, Township 7 North, Range 1 East, LaSalle and
Grant Parish, Louisiana, at Sections 3, 4, 8, & 9, which includes
the Aertker Land. The grant of right-of-way was signed by James
Eisses (“Mr. Eisses”), General Manager, Louisiana-Pacific. It was
granted for a consideration of $640.42 and the payment of the
current value of damages which might arise from the exercise of
the servitude. The grant of right-of-way did not include any
language or documentation stating that Mr. Eisses was expressly
authorized to alienate property and/or grant servitudes. However,
at the time the right-of-way grant was signed, a LouisianaPacific Corporate Resolution granting Mr. Eisses the authority
“to consummate any sale or purchase of timber or timberland” was
on file in the LaSalle Parish conveyance records. The resolution
was dated May 5, 1976.2 No member of the Aertker family signed
and/or was included in the grant of the right-of-way. Likewise,
no member of the Aertker Land gave Placid permission to use the

1

It should be noted that in addition to Placid Refining Co., all
references herein to “Placid” also include Defendants Placid Holding Co., Placid
Pipeline Co. LLC, and Rosewood Refining LLC.
2

Trial Exhibit 12, p. 111.

3

right-of-way.
During the preparation for the building of the Searcy-Boyce
Pipeline, Placid utilized the services of independent contract
landmen to purchase the right-of-way for the line. In particular,
Placid’s

chief

landman

for

the

area

hired

the

Bill

Beasley

Brokerage Service to acquire all of the pipeline right-of-ways.
Mr. Beasley died prior to trial. The other contract landmen were
not regular employees of Placid, and no records were maintained
as to their identity. Additionally, as part of its preparation,
Placid

budgeted

acquisition

and

$58,272.00,
damages

or

costs

$150.00
for

the

per

rod,

for

right-of-way

the
which

traversed the Aertker Land.3
At the time that Placid was acquiring the right-of-way, the
Assessor’s records for 1980 and 1981 identify the taxpayer for
the Aertker Land as Louisiana-Pacific. The records show that
Louisiana-Pacific

paid

taxes

pursuant

to

a

ninety-nine

year

lease. The 1972 Assessor’s ownership map for LaSalle Parish (the
ownership map at the time that Louisiana-Pacific granted the
right-of-way to Placid) shows that the Aertker Land was owned by
the Aertker family, and that the land was burdened by a ninetynine year lease in favor of Louisiana-Pacific.
In March 1982, Placid completed the Searcy-Boyce Pipeline, an

3

Tr. Exh. 23, p. 182; Tr. Exh. 31, p. 223.

4

8-inch crude oil pipeline approximately 37.4 miles long, running
from Placid’s crude oil collection and storage facility located
in Searcy, LaSalle Parish, Louisiana to Placid’s storage facility
in Boyce, Rapides Parish, Louisiana. Approximately 1.214 miles of
the

Searcy-Boyce

Pipeline

(388.3

rods)

traverses

the

Aertker

Land, using a right-of-way 45 feet in width. The portion of the
pipeline traversing the Aertker Land also includes a surface
facility

(e.g.

a

block

valve).

The

approximate

cost

of

the

construction was $7,960,000.
The Searcy-Boyce Pipeline was put into service on March 2,
1982, and it was used by Placid until December 1, 2000, when
Placid sold all portions of the Searcy Gathering System (the
system which feeds into and includes the Searcy-Boyce Pipeline)
to Central Louisiana Energy Pipeline Company (CLEPCO). During the
time period in which Placid used the pipeline, Placid used the
pipeline

exclusively

purchased

at

the

to

transport

well-head.

its

Placid

own

oil,

transported

which
a

total

was
of

86,936,658 barrels of crude oil through the Searcy-Boyce Pipeline
and,

thus,

through

the

Aertker

Land.

Because

the

crude

oil

transported through the Searcy-Boyce Pipeline was owned by Placid
and intended for use in Placid's refinery, no charges for use of
the gathering system or the 8-inch pipeline were assessed to
anyone, no tariff was charged, no profit was allocated, and the
5

pipeline was treated as an "overhead item" for the refinery.
While no profit was allocated to the Searcy-Boyce Pipeline, the
total aggregate profit earned by Placid during the time period
that it accounted for the pipeline was $148,926,000.4
As of March 2, 1982, W.P. Aertker, Jr. and Betty Aertker
Harwood, children of W. Patrick Aertker and Bessie Brown Aertker,
had acquired the Aertker Land by inheritance. They owned the
property in indivision, in the proportions of one-half each. On
April 27, 1989, W.P. Aertker, Jr. and Betty Aertker Harwood
partitioned the Aertker Land. On February 12, 1996, W.P. Aertker,
Jr. conveyed his interest therein to DeNiro, LLC. On April 9,
1996, Betty Aertker Harwood conveyed her interest to Southern
Interest, LLC. As a result of the partition and conveyances,
Deniro, LLC owns 580 feet of the former Aertker Land crossed by
the right-of-way, and Southern Interest, LLC owns 5,835 feet.
DeNiro, LLC and Southern Interest, LLC have stipulated that any
award in this case should be allocated equally between the two
entities.
On October 17, 2002, W.P. Aertker, Jr. inspected the Aertker
Land and discovered the existence of the pipeline. Prior to this
inspection, no owner of the Aertker Land knew of the pipeline's
existence. Upon discovering the pipeline, Mr. Aertker assumed

4

Tr. Exh. 31, p. 229.

6

that the pipeline right-of-way was granted by his father. In
2005, Mr. Aertker discovered problems with the grant of the
right-of-way and was put on notice that no owner of the Aertker
Land had granted the right-of-way. In 2006 Plaintiffs filed suit
against

CLEPCO,

the

new

owner

of

the

Searcy-Boyce

Pipeline,

contending that Plaintiffs were the owners of the pipeline and
seeking to evict CLEPCO. The court ruled in favor of CLEPCO but,
thereafter, the Plaintiffs and CLEPCO entered into a compromise
agreement, dated May 1, 2007, which included the grant of a
conventional servitude of passage to CLEPCO for $30,000.
On October 6, 2007, Plaintiffs filed the instant suit stating
that they had a petitory action for accession to immovables or,
alternatively, an action for continuing tort. In defense, Placid
has asserted that it acquisitively prescribed the right-of-way
and/or that Plaintiffs' claims are personal and, therefore, have
prescribed

under

the

one-year

liberative

prescription

period

afforded to delictual actions. At the time that this action came
to trial the following legal questions remained before the Court:
(1) Was Placid a good faith or bad faith possessor for the
purposes of acquisitive prescription, accession, and/or trespass?
(2) What is the proper cause of action in this case? (3) What is
the proper standard for measuring damages based upon the relevant
cause of action?
7

Discussion
A.

Placid was a Possessor in Bad Faith
Under Louisiana law, good faith is presumed for the purposes

of accession and acquisitive prescription. LA. CIV. CODE arts.
487 cmt.(e), 3481. In matters of accession, "a possessor is in
good faith when he possesses by virtue of an act translative of
ownership

and

does

not

know

of

its

defects."

Id.

art.

487

cmt.(b). A good faith possessor must do more than merely believe
that the original author of his title was the owner. Id. "For
purposes of acquisitive prescription, a possessor is in good
faith

when

he

reasonably

believes,

in

light

of

objective

considerations, that he is owner of the thing he possesses." Id.
art. 3480. While good faith is presumed, it may be rebutted with
"proof that the possessor knows, or should know, that he is not
owner of the thing he possesses." Id. art. 3481. Generally, "an
acquirer of immovable property is not charged with constructive
knowledge of the public records, nor is he bound to search the
public records;" however, if he "knows sufficient facts to excite
inquiry [he] is bound exceptionally to search the public records
and is charged with the knowledge that a reasonable person would
acquire

from

the

records."

omitted); see also, id.

Id.

art.

3480

cmt.(d)

(citations

art 3481 cmt.(e) (citing Attaway v.

Culpepper, 386 So.2d 674 (La. App. 3 Cir. 1980)). In determining
8

good faith, the court should consider all relevant factors in a
case that bear on the likelihood of discovering a defect in
title. Phillips v. Parker, 483 So. 2d 972, 977-98 (La. 1986).
Such factors include the purchase price as well as defects in the
title itself. Id. at 978.
In a prior Report and Recommendation issued by the Magistrate
Judge and adopted by the Court, it was determined that Placid had
just title5 to the Aertker right-of-way and that it had possessed
the right-of-way for at least ten years. (Rec. Doc. 31, p. 12-14)
Therefore, for the purposes of both acquisitive prescription and
accession, the only issue before the Court is whether or not
Placid was in good faith.
At trial, Plaintiff's expert professional landman, Oliver
Leblanc ("Mr. Leblanc"), testified that the assessor's ownership
map that predated the 1981 right-of-way agreement showed that
Bessie B. Aertker et al. was the owner of the disputed property,
and that the property was under a ninety-nine year lease to
Louisiana-Pacific.6 Mr. Leblanc also testified that the 1980 and
1981

tax

rolls

indicated

that

the

Aertker

Land

was

5

under

a

Just title, as it was defined at the time that Placid entered into the
right-of-way agreement, was “a title which by its nature, would have been
sufficient to transfer the ownership of the property, provided it had been
derived from the real owners.” Former La. Code Civ. Proc. art. 3485
6

Trial Transcript, pp. 14-15 (June 21, 2012); Tr. Exh. 28.

9

ninety-nine year lease.7 Mr. Leblanc testified that a landman
exercising the proper standard of care would have checked the
records and, thus, would have been alerted to the true ownership
of the land upon viewing these documents.8 Additionally, Placid's
expert economist, Kenneth Boudreaux, testified that on average,
Placid would have expected to pay $58,272.00 for the "acquisition
and

damages"

cost

of

the

disputed

right-of-way,

including

miscellaneous costs of the acquisition such as landmen.9 This
price

is

at

an

estimate

of

$150.00

per

rod.10

In

actuality,

Placid paid $640.42 for the right-of-way.11 The actual price paid
was

approximately

$16.50

per

rod

(or

less).12

In

addition,

Plaintiffs have pointed out that the deed to the right-of-way
contained no warranty of title, no statement of ownership, and no
indication

that

Mr.

Eisses,

Louisiana-Pacific's

agent,

had

written authorization to alienate immovable property.13
Taken on whole, these factors indicate to the Court that

7

Trial Tr., pp. 16-17; Tr. Exh. 29.

8

Trial Tr., p. 17.

9

Trial Tr., p. 166; Tr. Exh. 31, p. 223.

10

Trial Tr., p. 166; Tr. Exh. 31, p. 223.

11

Tr. Exh. 13, p. 112.

12

Trial Tr., p.166.

13

See Tr. Exh. 13, pp. 112-13.

10

Placid was in bad faith because it knew, or reasonably should
have known, that Louisiana-Pacific was not the owner of the
Aertker Land and, therefore, not authorized to grant the rightof-way. To the extent that Placid has argued that it relied on
the expertise of its landman, the Court notes that Mr. Leblanc's
testimony regarding the relative ease of locating the documents
listing the owner of the Aertker Land as well as the standard of
care for a landman is particularly detrimental. His testimony
indicates that at the very least, the landman should have known
"sufficient facts to excite inquiry" into the public records and,
thus, "is charged with the knowledge that a reasonable person
would acquire from the records." See LA. CIV. CODE art. 3480
cmt.(d). Moreover, because the price for the right of way was
well below what Placid had budgeted, that alone should have been
enough to put Placid on notice that there was a deficiency with
the title.
In addition, the Court also notes that under Louisiana law,
"[a] mandatary may establish a predial servitude if he has an
express

and

special

power

to

do

so."

Id.

art.

709.

Because

Louisiana recognizes the equal dignity rule, such power must be
given in writing by the principal to the mandate (agent). See 7
GLEN

G.

MORRIS

ET

AL.,

LA.

CIV.

L.

TREATISE,

BUSINESS

ORGANIZATIONS § 21.04 (2012) (explaining that under the equal
11

dignity rule, a principal must give an agent written permission
to sell immovables); see also, LA. CIV. CODE arts. 708, 2440
(requiring that sale of immovables must be made by authentic act
or by act under private signature). Thus, in order to grant
Placid a right-of-way, Mr. Eisses, Louisiana-Pacific's agent,
would

have

needed

express

corporate

resolution

authority

does

not

that

written
Placid

expressly

permission

points

state

that

to

to

do

so.

as providing

Mr.

Eisses

has

The
that
the

authority to grant servitudes, as required by law.14 Thus, since
Placid has argued that it relied on, or could have relied on, the
resolution, the Court finds that it reasonably should have known
that Mr. Eisses did not have the authority to grant the right-ofway, as it was not expressly provided to him in the resolution.
As such, the Court finds that Placid was in bad faith. This
finding

precludes

Placid

from

acquisitively

prescribing

the

Aertker right-of-way. Additionally, it means that to the extent
the doctrine of accession applies, Placid cannot retain the civil
fruits produced by the pipeline.
B.

Plaintiffs Do Not Have a Cause of Action for Accession to
Immovables
Accession to immovable property is a real right that is

incident to ownership. LA. CIV. CODE art. 482. Under Louisiana

14

See Tr. Exh. 12, p. 111.

12

law, actions claiming the ownership of immovable property, or of
real rights related to the ownership of immovable property, are
classified as petitory actions. LA. CODE CIV. PROC. art. 3651.
Petitory actions may be brought for a present claim of ownership,
ownership limited to a "period which has not yet expired," or
"which may be terminated by an event which has not yet occurred."
Id. art. 3652 (emphasis added).
In the instant case, as the aforementioned facts demonstrate,
Plaintiffs are the undisputed current owners of the Aertker Land.
Likewise, CLEPCO is the undisputed current owner of the pipeline
and the right-of-way in question. Placid has no present ownership
interest in the pipeline, right-of-way, or the Aertker Land.
Thus, there is no dispute about current ownership in this case.
To this Court's knowledge, Louisiana does not recognize a
petitory action, or any other named real cause of action, for
past ownership of immovable property, or for real rights related
to the ownership of that property. As such, this Court finds that
Plaintiffs

do

not

have

a

cause

of

action

for

accession

to

immovables.
To the extent that it could be argued that Plaintiffs have
some

sort

of

innominate

real

15

action15

for

accession

to

Innominate means unnamed. Therefore, an “innominate real action”
designates an “unnamed” real cause of action. 2 A.N. YIANNOPOULAS, LOUISIANA
CIVIL LAW TREATISE, PROPERTY § 292 (4th ed. 2012)(“[A]part from the four nominate

13

immovables,

the

Court

finds

informative

the

Louisiana

Fourth

Circuit Court of Appeals' analysis in Boykins v. Boykins, 070542, p.5 (La. App. 4 Cir. 4/30/08); 984 So. 2d 181. In Boykins,
the court directly addressed the question of the abatement of
revindicatory actions for the recovery of movable property.16 In
the

context

of

movable

property,

the

court

noted that

"the

revindicatory action abates when the movable is no longer in the
defendant's possession." Id. The court found that in the event of
abatement, "a plaintiff may have a personal action for damages or
unjust enrichment against the former possessor." Id. Thus, even
where a real cause of action exists, the nature of the cause of
action may change depending upon the relative relationship of the
parties to the property. In the instant case, neither party to
this suit is in possession of the right-of-way or the pipeline.
Furthermore, neither party professes to currently own the rightof-way or the pipeline. Therefore, this Court finds that any real
cause of action available to the Plaintiffs has abated.17

real actions under the Code of Civil Procedure, numerous innominate actions
[exist to protect property interests].”).
16

Id. at 185. Revindicatory actions are actions seeking recognition of
ownership or the enforcement of ownership rights. Songbyrd. Inc. v. Bearsville
Records. Inc., 104 F.3d 773, 777 (5th Cir. 1997). A petitory action is a
revindicatory action for immovable property. Id. A revindicatory action for
movable property is also one type of innominate real action. Id.
17

The Court notes that the essential problem with determining the nature
of the cause of action in this case is the order in which Plaintiffs chose to
proceed with their suits against CLEPCO and Placid. By choosing to first sue
CLEPCO and settle with them for the right-of-way, Plaintiffs essentially divested

14

Notwithstanding that finding, Louisiana does recognize personal
causes

of

action

for

damages

for

the

infringement

of

a

plaintiff’s ownership rights. A.N. YIANNOPOULAS, LOUISIANA CIVIL
LAW TREATISE, PROPERTY § 242 (2012) ("[A] main demand for damages
on account of the infringement of plaintiff’s ownership is a
personal action."). Specifically, an action seeking damages for
interference with an individual's ownership of immovable property
may

be

styled

as

an

action

for

trespass.

Id.

Under

the

circumstances presented in this case, the Plaintiffs' cause of
action is best classified as a trespass.
C.

Plaintiffs Have a Cause of Action for Continuing Trespass
Trespass is the "unlawful physical invasion of the property

or possession of another." Phillips v. Town of Many, 538 So. 2d
745, 746 (La. App. 3 Cir. 1989) (quoting Patin v. Stockstill,
287 So. 2d 780 (La. App. 1 Cir. 1975)). "A trespasser is one who
goes upon the property or possession of another without the
other's consent." Britt Builders. Inc. v. Brister, 618 So. 2d
899, 903 (La. Ct. 1 App. 1993) (citations omitted). A continuing
trespass occurs where an individual places a permanent structure,
such as a pipeline, on another's property, and fails to remove
it. See Tujague v. Atmos Energy Corp., 442 F. Supp. 2d 321, 325

themselves of their “real” interest in this subsequent suit against Placid.
Ultimately, without any claim of ownership of the right-of-way, all that is left
before this Court are Plaintiffs’ personal claims for damages against Placid.

15

(E.D. La. 2006). Likewise, the use of a right-of-way without
authority

may

also

be

a

trespass.

Booth

v.

Madison

River

Comm.,Inc., 02-0288 (La. App. 1 Cir. 12/3/03); 851 So. 2d 1185,
1187-88.
In the instant case, Placid installed the pipeline on the
Plaintiffs' property in 1981, without Plaintiffs' permission.
From

1981

to

2000,

the

pipeline

remained

in

use,

on

the

Plaintiffs' land, without Plaintiffs' permission. Plaintiffs did
not grant any party permission to use the pipeline on their land
until 2007, when Plaintiffs granted a right-of-way to CLEPCO.
Therefore,

the

Court

finds

that

Placid's

installation

and

subsequent use of the Searcy-Boyce Pipeline on Plaintiffs' land
constituted a trespass. Furthermore, the Court incorporates the
reasoning included in its June 15, 2012 Order relevant to the
existence

of

a

continuing

tort,

and

it

finds

that

Placid's

trespass on the Aertker Land constituted a continuing trespass
that did not cease until 2007, when Plaintiffs granted CLEPCO a
right-of-way. (Rec. Doc. 69, p. 19 - 36)
D.

Plaintiffs are Entitled to the Profit Derived From the
Pipeline as Damages
“[O]ne who unlawfully, and against the will of the owner of

the land, exercises thereon rights belonging exclusively to the
owner, must account to such owner for all the fruits of his
16

unlawful

exercise

of

that

right.” Rosenthal-Brown

Fur

Co.

v.

Jones-Frere Fur Co., 110 So. 630, 632 (La. 1926)(citing Gulf
Refining Co. v. Hayne, 148 La. 340, 340 (La. 1920)); see also,
Corbello et al. v. Iowa Prod. et al., 02-0826 (La. 2/25/03);850
So. 2d 686, 708-09. In such cases, fruits are considered to be
the profits “derived from the unlawful exercise of [the] right
which belonged exclusively to the [owner].” Rosenthal, 110 So. at
633. The sole factor in determining whether or not the owner
receives the profits is the good faith or bad faith of the
trespasser and/or possessor. Corbello, 850 So. 2d at 708-09. Even
where a possessor is in bad faith, he is still entitled to
reimbursement. Rosenthal, 110 So. at 632.
Plaintiffs, as owners of the Aertker Land, held the exclusive
right to grant or deny the use of a right-of-way on their land.
Notwithstanding that right, Placid entered onto the Aertker Land
in 1981 and began illegally using the right-of-way. As such,
Placid exercised a right belonging exclusively to the Plaintiffs,
and, furthermore, did so in bad faith. Thus, Placid must account
to Plaintiffs for the exercise of that right by returning the
profits that they derived from their use of the right-of-way,
i.e. the portion of the profits obtained from the flow of oil
through the pipeline that traversed Plaintiffs’ land.
The only actual account of profits produced by Placid during
17

the relevant period is $148,926,000. This is the aggregate profit
earned by Placid on all of its operations, as Placid did not
report separate profits for the pipeline. From 1980 (the first
year that the company began to include the use of the pipeline
into its total profit figures) until 2000, the percentage of
Placid assets that could be contributed to the Aertker right-ofway varied from 0.232% in 1980 to 0.047% in 2000.18 Applying
those yearly percentages to the yearly profit figure for Placid,
the total amount of profit attributable to the Aertker right-ofway for the relevant twenty-year period is $96,145.33.19 Thus,
$96,145.33 is the amount that Placid profited from its exercise
of the Plaintiffs’ ownership rights and, therefore, it is the
amount

owed

to

the

Plaintiffs

in

damages.20

Additionally,

pursuant to Louisiana Revised Statute § 13:4203, Plaintiffs are
also

owed

legal

interest,

calculated

from

the

date

of

the

judicial demand. Id. § 13:4203.
In regard to the requirement that Placid be reimbursed for
its expenditures, the Court notes that Placid sold the pipeline

18
See Tr. Exh. 31, p. 229 (giving a yearly breakdown of the Aertker
percentage of Placid assets).
19

See Tr. Exh. 31, p. 229 (giving the yearly Placid profit on the Aertker
Land and the total profit figure).
20

The Court awards profits from 1980 to 2000 because that is the first year
that Placid began accounting for the pipeline as part of its overall profit
determination. Thus, the profits derived from Placid’s use of the Plaintiffs’
land actually began one year prior to that use.

18

to

CLEPCO

in

2000.

At

that

time,

Placid

received

full

reimbursement for its expenditures on the pipeline. Likewise, the
Plaintiffs have also settled with CLEPCO, negotiating at armslength for the right-of-way and corresponding expense of the
pipeline. As such, Plaintiffs owe no reimbursement to Placid and
their damage award should not be offset.
Furthermore, the Court also notes that it has used Placid’s
estimate of profit, rather than the Plaintiffs’ estimate, because
it found Placid’s determination more credible. Dr. Boudreaux’s
calculation was based on actual profit figures from Placid as
well

as

Placid’s

actual

depreciation

tables.

In

contrast,

Plaintiffs’ calculation involved a large number of hypothetical
rates and pay back periods that are not supported by the record
before the Court. While the Court acknowledges the authority
submitted by the Plaintiffs regarding the use of hypothetical
information,

actual

profits,

when

available,

provide

a

more

accurate basis for profit determinations and, consequently, are a
more credible source.
Accordingly, judgment will be rendered in favor of Plaintiffs
W. Patrick Aertker, Jr., Betty Aertker Harwood, DeNiro, LLC., and
Southern Interests, LLC, and against Defendants Placid Holding
Co., Placid Pipeline Co. LLC, and Rosewood Refining LLC, with
interest from the date of the judicial demand and court costs.
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New Orleans, Louisiana, this 27th day of September, 2012.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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