City of Baton Rouge v. F & K Investment LLC

135 So. 3d 760, 2013 La.App. 1 Cir. 0501, 2013 WL 5872019, 2013 La. App. LEXIS 2249
CourtLouisiana Court of Appeal
DecidedNovember 1, 2013
DocketNo. 2013 CA 0501
StatusPublished
Cited by2 cases

This text of 135 So. 3d 760 (City of Baton Rouge v. F & K Investment LLC) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Baton Rouge v. F & K Investment LLC, 135 So. 3d 760, 2013 La.App. 1 Cir. 0501, 2013 WL 5872019, 2013 La. App. LEXIS 2249 (La. Ct. App. 2013).

Opinion

KUHN, J.

1 ^Defendant-appellant, F & K Investments, LLC (F & K), and intervenors-appellants, C. Farrell Fruge, Jr., D.D.S., APDC (Fruge APDC), and C. Farrell Fruge, Jr. individually (Fruge), appeal the trial court’s judgment, which dismisses as untimely their claims for the measure of compensation to which each is entitled as a result of the acquisition of their property by plaintiffs-appellees, the City of Baton Rouge and Parish of East Baton Rouge (City/Parish), for a public purpose. We reverse in part; affirm as amended in part; and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 2008, the City/Parish filed a petition, naming F & K as a defendant, which averred that for the purpose of street construction, it was necessary to acquire a tract of land taken from a larger tract in the Coursey Village subdivision believed to be owned by F & K.1 Alleging that a reasonable price could not be agreed upon, the City/Parish estimated just compensation.2

On July 24, 2008, the trial court signed an order directing the deposit of $54,778.00, the highest estimate of the amount of just compensation, into the court’s registry and the surrender of the described property by F & K to the City/Parish. On November 26, 2009, the City/Parish filed into the record a notice of acceptance of work dated September 10, 2009.

F & K answered the lawsuit on June 26, 2012. Additionally, F & K, joined by Fruge APDC and Fruge, asserted claims of entitlement to additional compensation as 13a result of the City/Parish’s acquisition of the subject property, collectively alleging that they had engaged in the delivery of professional dental services to the public and had operated exclusively at the same location since 1986. They averred that prior to the acquisition of the property by the City/Parish, they had made “extensive plans ... to add an additional associate dentist,” expending in excess of $250,000.00 in improvements and projected an increase in net income in excess of $1,500,000.00. Collectively, F & K, Fruge APDC, and Fruge claimed that the additional dentist could not be accommodated “due to loss of parking” and sought reimbursement of those amounts; or alternatively, sought those same amounts “for a replacement facility plus moving costs.” They also requested attorney and expert fees, interest, and costs.

In response, the City/Parish filed motions to dismiss: one, directed at F & K, averred that its claim for additional compensation was untimely; and the other, directed at Fruge APDC and Fruge, urged that these parties had no rights or causes [763]*763of action relative to the property and that their claims were untimely asserted. After a hearing, the trial court granted both motions and dismissed all claims as having been untimely asserted. F & K, Fruge APDC, and Fruge have appealed.

TIMELINESS OF F & K’S CLAIM

La. R.S. 48:450B, contained in the chapter setting forth authority to expropriate and acquire property prior to judgment (commonly referred to as “quick taking”), provides in relevant part:

Where a portion of a lot, block, or tract of land is expropriated, any defendant may apply for a trial to determine the measure of compensation to which he is entitled, provided:
(1) He files an answer within one year from the date he is served, in the same manner provided for service of the petition, with a copy of the [City/Parish’s] notice of acceptance, which has been filed with the clerk of court of the parish in which the action is pending, declaring that it has finally accepted the construction of the highway project for which the property was expropriated; provided however, that he may file his answer at any time prior thereto;
14 (2) His answer sets forth the amount he claims, including the value of each parcel expropriated and the amount he claims as damages to the remainder of his property;
(3) His damage claim is reasonably itemized;
(4) His answer has a certificate thereon showing that a copy thereof has been served personally or by mail on all parties to the suit who have not joined in the answer.3

Urging that the one-year time frame is a prescriptive period, the City/Parish asserts that F & K’s answer, filed on June 26, 2012, well over a year after it was served with the notice of acceptance, was untimely. Thus, the City/Parish contends F & K has waived its right to challenge the amount of just compensation. We disagree.

La. R.S. 48:452 provides:

If a defendant fails to file his answer timely, the [City/Parish] shall thereafter give affirmative notice, by certified mail, to such defendant of the pendency of the proceedings. If an answer is not filed within ten days after the date on which such notice is mailed, the court shall render final judgment fixing just compensation in the amount deposited into the registry of court and awarding that sum to the defendant.

The record does not contain an affirmative notice sent by certified mail from the City/Parish to F & K, and the City/Parish does not maintain that it ever sent one. Thus, under an application of the plain language of La. R.S. 48:452, F & K’s answer is timely since it has until the expiration of ten days after the date the affirmative notice was mailed to file its answer.

The City/Parish contends that interpretation of La. R.S. 48:452 in such a manner nullifies the wording of La. R.S. 48:450B(1). Instead, the City/Parish, suggests that the provisions of La. R.S. 48:452 apply in instances where the expropriating authority has sued more than one defendant, and that the answer filed Rafter the affirmative notice permits a defendant to [764]*764contest the percentage of just compensation which may be collected by that defendant.

The courts adhere to the established principles of statutory construction, which begin with the language of the statute itself. The paramount consideration in interpreting a statute is ascertaining the legislature’s intent and the reasons that prompted the legislature to enact the law. Laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject. Int’l Paper Co., Inc. v. Hilton, 2007-0290 (La.10/16/07), 966 So.2d 545, 558.

We find no conflict between the provisions of La. R.S. 48:450 and those of La. R.S. 48:452. Prior to its amendment La. Acts 1976, No. 391, La. R.S. 48:452 provided:

Upon failure of the defendant to answer within the times prescribed by Section 450 or Section 451 of this Part, as the case may be, judgment by default may be entered against him. This judgment must be confirmed as in other civil suits and, notwithstanding the periods within which answer is to be filed as prescribed by Section 450 or Section 451, the defendant may file his answer at any time prior to the confirmation of a default judgment against him.
In order to confirm a default it shall not be necessary for the [expropriating authority] to take the testimony of its appraisers but in lieu thereof their appraisal reports shall be filed in evidence and shall constitute prima facie proof of the compensation due defendant.

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Bluebook (online)
135 So. 3d 760, 2013 La.App. 1 Cir. 0501, 2013 WL 5872019, 2013 La. App. LEXIS 2249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-baton-rouge-v-f-k-investment-llc-lactapp-2013.