Monroe Redevelopment Agency v. Effron Land Corp.

294 So. 2d 861, 1974 La. App. LEXIS 3258
CourtLouisiana Court of Appeal
DecidedApril 23, 1974
DocketNo. 12,287
StatusPublished

This text of 294 So. 2d 861 (Monroe Redevelopment Agency v. Effron Land Corp.) 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
Monroe Redevelopment Agency v. Effron Land Corp., 294 So. 2d 861, 1974 La. App. LEXIS 3258 (La. Ct. App. 1974).

Opinions

BOLIN, Judge.

Monroe Redevelopment Agency sues Ef-fron Land Corporation, Peoples Loan Service, Inc., and Realty Construction Associates, Inc., seeking to expropriate .350 acres of land in Ouachita Parish, Louisiana. Defendants are claimants of record to the ownership of the property. From judgment of the trial court adjudicating the parcel of land to plaintiff, only Effron Land Corporation appeals. We affirm the judgment.

Monroe Redevelopment Agency is a political corporation of the State of Louisiana created by the City of Monroe, organized and existing by authority of Act 215 of the 1968 Legislature and other applicable statutory authority. This agency filed a petition seeking to expropriate the property in question for the construction of a street. Trial date was fixed for May 10, 1973. Service of the original petition together with notice of the fixing of the trial date was made on defendants, Effron and Peoples Loan, on March 30, 1973.

On May 9, 1973, Effron and Peoples Loan filed answers, Effron alleging it was sole owner of the property and that the other defendants have no title thereto. Service on a third defendant, Realty Construction Associates, Inc., was not accomplished until May 24, 1973, after appointment of a curator. The trial was refixed for June 18, 1973, and a new notice of the trial date was served upon Effron and Peoples Loan on May 29.

Effron admitted plaintiff is authorized to expropriate the portion of the property proposed for a street, but denied it is authorized to take adjacent property, comprised of two small triangular tracts, without showing public necessity therefor. Peoples admitted all the allegations of the petition and merely asked that there be judgment according to law. On May 29 the curator for Realty Construction filed an answer which consisted of a general denial.

The case was tried on June 18, and the trial judge, in a well-written opinion, concluded that since defendant Effron had failed to file its answer within 15 days of the date of the first service of notice of trial, it had waived all defenses except claims for money as compensation. This decision was based on the mandatory language of the requirements of Louisiana Revised Statutes 19:6 and 19:7. Title 19 of Louisiana Revised Statutes is entitled “Expropriation” and contains the statutory [863]*863provisions governing expropriations in Louisiana.

La.R.S. 19:6 provides:

“The defendant shall file an answer within fifteen days after serivce of the notice of the time fixed for the trial. The answer shall be served personally or by mail on either the plaintiff or his attorney of record in the suit.” (Emphasis added)

La.R.S. 19:7 provides:

“Failure of the defendant in any such suit to file his answer timely or to serve a copy thereof on the plaintiff timely constitutes a waiver by the defendant of all defenses to the suit except claims for money as compensation for the property sought to be expropriated and claims for money as damages to other property.”

Although Effron recognized its answer was not filed until approximately 40 days after service of the first notice of the time fixed for trial, i. e., May 10, 1973, it urges on appeal that since the trial was not held on that date but was refixed for June 18, 1973, on ex parte motion of plaintiff, the time for answering was extended until 15 days from service of the second notice on May 29. Thus appellant contends its answer filed May 9, was timely and Effron should not be deemed subject to the waiver provisions of Revised Statutes 19:7.

Appellant also contends that since defendant, Realty Construction, answered timely generally denying plaintiff’s right of expropriation, plaintiff had the burden of proving its allegations by strict legal proof.

The questions to be answered are: (1) did the changing of the trial date and service of a second notice of the refixing of such date allow Effron additional time within which to file its answer and entitle this appellant to contest the necessity and purpose for the expropriation; (2) did the timely filing of a general denial by the curator appointed to represent Realty, which is not an appellant in this court, require plaintiff to prove its case by a preponderance of admissible evidence ?

The mandatory wording of R.S. 19:6 and 19:7 has been held to be free of ambiguity and to require strict construction. Texas Gas Transmission Corp. v. Sigue, 163 So.2d 386 (La.App. 3d Cir. 1964, writ refused) ; Gulf States Utilities Co. v. Morton, 167 So.2d 458 (La.App. 1st Cir. 1964); State v. Landry, 219 La. 456, 53 So.2d 232 (1951).

In Texas Gas Transmission v. Sigue, supra, the trial court refused to consider tardy motions, exceptions and answers and held that the only issue to be considered was the monetary award for the taking, stating:

“ ‘Since the public interest requires that expropriation proceedings be concluded promptly, without delay or filibustering, and the statute fixes a summary proceeding and a penalty for failure of defendant to answer promptly, such penalty must be strictly enforced.’ City of Gretna v. Mitchell, La.App. (Orleans Cir.), 64 So.2d 873, 874. It has been consistently held that the time limits for filing an answer under expropriation statutes are mandatory and failure to answer or plead within the time limit is considered a forfeiture and waiver by defendant of all pleas other than quantum and damages. State Through Department of Highways v. Jackson Brewing Co., La. App. (4th Cir.), 146 So.2d 504 and cases cited therein.” (Emphasis added)

We have been cited to no cases, nor has independent research disclosed any, which would permit of a contrary interpretation. We conclude the appellant is bound by the statute as interpreted by the cited cases and it is held to have waived any defenses with respect «to the necessity for and the purpose of the expropriation.

We further conclude that the continuance and subsequent timely filing of a general denial by Realty cannot redound to [864]*864the benefit of Effron, particularly since Effron- denies the other defendants are co-owners of the property. In a somewhat similar situation the court decided adversely to the appellants in United Gas Pipe Line Co. v. Landry, 228 So.2d 565 (La. App. 1st Cir. 1969), which was one of six cases consolidated for trial and on appeal. In those cases plaintiff sought to expropriate a gas pipeline right of way across six contiguous tracts of land. Three of the named defendants timely filed answers and three failed to answer the expropriation suit within the delay allowed by Louisiana Revised Statutes 19:6. As to the latter three the court held these defendants could only litigate the question of compensation and damages while the three defendants who had complied with the statute could litigate the plaintiff’s right of expropriation and bona fides of plaintiff’s negotiations with defendants prior to instituting expropriation proceedings.

In the instant case Effron at no time requested an extension of time, which it was entitled to do. Further, the answer had been belatedly filed before the refixing of the trial date and there were no subsequent amendments filed by this defendant.

Addressing next the question of whether plaintiff must prove its case by a preponderance of the evidence, we find that Revised Statutes 19:2.1 sets forth the requirements of the petition for expropriation:

“A.

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Related

State v. Jackson Brewing Company
146 So. 2d 504 (Louisiana Court of Appeal, 1962)
United Gas Pipe Line Company v. Landry
228 So. 2d 565 (Louisiana Court of Appeal, 1969)
United Gas Pipe Line Company v. Blanchard
149 So. 2d 615 (Louisiana Court of Appeal, 1963)
State v. Landry
53 So. 2d 232 (Supreme Court of Louisiana, 1951)
City of New Orleans v. Crawford
9 So. 2d 82 (Louisiana Court of Appeal, 1942)
State ex rel. Department of Highway v. Guidry
124 So. 2d 531 (Supreme Court of Louisiana, 1960)
Texas Gas Transmission Corp. v. Sigue
163 So. 2d 386 (Louisiana Court of Appeal, 1964)
State ex rel. Department of Highways v. Wm. T. Burton Industries, Inc.
91 So. 2d 375 (Supreme Court of Louisiana, 1956)
City of Gretna v. Mitchell
64 So. 2d 873 (Louisiana Court of Appeal, 1953)
Gulf States Utilities Co. v. Morton
167 So. 2d 458 (Louisiana Court of Appeal, 1964)

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Bluebook (online)
294 So. 2d 861, 1974 La. App. LEXIS 3258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monroe-redevelopment-agency-v-effron-land-corp-lactapp-1974.