Southwestern Elec. Power Co. v. Scurlock

485 So. 2d 72, 1986 La. App. LEXIS 6238
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1986
Docket17463-CA
StatusPublished
Cited by8 cases

This text of 485 So. 2d 72 (Southwestern Elec. Power Co. v. Scurlock) 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
Southwestern Elec. Power Co. v. Scurlock, 485 So. 2d 72, 1986 La. App. LEXIS 6238 (La. Ct. App. 1986).

Opinion

485 So.2d 72 (1986)

SOUTHWESTERN ELECTRIC POWER COMPANY, Plaintiff-Appellee,
v.
C.R. SCURLOCK, et al., Defendants-Appellants.

No. 17463-CA.

Court of Appeal of Louisiana, Second Circuit.

February 26, 1986.
Rehearing Denied March 27, 1986.

*73 John S. Odom, Jr., Shreveport, for defendants-appellants.

Wilkinson, Carmody & Gilliam by Bobby S. Gilliam, Shreveport, for plaintiff-appellee.

Before MARVIN, FRED W. JONES and LINDSAY, JJ.

*74 MARVIN, Judge.

In this utility expropriation under LRS 19:2(7), the appealing landowners and the power company (SWEPCO), who answered the appeal, complain respectively of the inadequacy and excessiveness of the judgment awarding the landowners $62,390 as just compensation for the property taken, part in servitude and part in full ownership. SWEPCO expropriated the property to construct an intake structure on Toledo Bend Reservoir and a pipeline therefrom to supply water to the SWEPCO electrical power plant in the Dolet Hills south of Mansfield.

Besides the issue of just compensation, we consider parenthetically the timeliness of the landowners' appeal and the landowners' contention that a new trial should have been granted to allow them to recover damages allegedly inflicted upon their lands by SWEPCO's construction after trial of the expropriation action.

We find the appeal timely and, with an amendment to correct an obvious clerical error in the judgment, affirm the trial court in all respects.

TIMELINESS

By minute entry made and mailed to the litigants on March 11, 1985, the trial court denied the landowners' motion for a new trial. On April 11 or 12 the trial judge signed the order attached to the landowners' petition, granting an appeal, and gave it to the district clerk of court. The district clerk thought that a judgment denying the new trial was necessary to perfect the appeal. The clerk so informed the landowners' counsel, who then prepared such a judgment and mailed it to the clerk. That judgment was signed on April 30. The clerk discarded the landowners' first petition and signed order granting the appeal apparently when a second petition for, and order granting, an appeal was signed on May 21. After noticing the apparent untimeliness and requesting a response, we remanded for a hearing which revealed the circumstances recited above.

The district clerk's instructions to the appellant about the necessity of a signed judgment and his later discarding of the petition and signed order granting the appeal should not be imputable to appellant, as SWEPCO now contends. Compare Boyd v. Fourchon, Inc., 408 So.2d 380 (La.App. 1st Cir.1981); Pepitone v. State Farm Mut. Auto Ins., 365 So.2d 1195 (La. App. 4th Cir.1979); Thibodeaux v. Western World Ins. Co., 387 So.2d 601 (La.App.3d Cir.1980). The clerk explained that he did not send SWEPCO a notice of the first and timely appeal because he expected the signed judgment and second appeal from the appellant. The failure of the clerk to mail the notice to an appellee "does not affect the validity of the appeal." CCP Art. 2161. Compare Dupre v. Land Resources, Inc., 409 So.2d 1313 (La.App.3d Cir.1982). SWEPCO was not prejudiced and indeed answered the appeal before the return day as CCP Art. 2133 permits.

MOTION FOR NEW TRIAL

The Scurlocks alleged that after the judgment was signed, SWEPCO's pipeline construction crews damaged a water pipe and private road owned by them. They contend that they should be allowed to assert these demands in a new trial in the expropriation action because the damages could not have been discovered before or during trial through diligent investigation. CCP Art. 1972.

SWEPCO contends that a cause of action for damages incurred after the judgment cannot be instituted by the re-opening of the expropriation proceedings. We must agree.

An applicant is entitled to a new trial when he has discovered new evidence after trial "important to the cause." CCP Art. 1972(2). Our emphasis. A party, of course, cannot discover, before or during trial, damage that occurs after judgment. Nevertheless, the damages alleged are tort damages, unrelated to the "cause" of an expropriation proceeding. The expropriation *75 cause of action inquires into the just compensation and severance damage for the property taken and is distinct from a cause of action for tort damages that may later arise. The worsened condition of an injured plaintiff that occurs after trial in a personal injury action was not "newly discovered evidence" warranting a new trial within the meaning of CCP Art. 1972(2). Burleigh v. State Farm Ins., 469 So.2d 270 (La.App.3d Cir.1985).

Although appellants may have a remedy for the alleged tort damages (another cause of action), that cause of action may not be instituted by application for new trial in an expropriation action which has been tried.

THE MERITS

SWEPCO's authority and necessity to expropriate under LRS 19:2 et seq are not contested. The plat reproduced below depicts the property taken. Tract A is .989 acres taken in full ownership for the construction of a water intake facility similar to that of International Paper Company's intake site immediately to the south, and a 25-foot servitude for a 36" water pipeline from Tract A extending across Tracts B & C. The pipeline servitude is "permanent" and the construction servitude is temporary, ending when the pipeline is completed and operating.

The property is in an area known as Hart's Bluff on the Sabine river about 11 miles southwest of Mansfield.

*76

Before Toledo Bend dam was completed, Hart's bluff was a distinct landmark, steep and high above the river. After the reservoir filled, land on and around the bluff became desirable property. The Scurlocks owned about 164 acres in the area and then sold lots on and off the lakefront to residential and industrial buyers. Several fishing camps and a marina are on the lakefront in the area. Hart's Bluff is one of several desirable areas surrounding Toledo Bend from which water may be drawn from the deep river channel. Since 1979 the City of Mansfield and International Paper *77 Company have constructed water intake facilities at Hart's Bluff to supply their respective needs.

These attributes of the property provoke the dispute between appraisers for the landowners and SWEPCO as to the comparable sales from which to determine market value of the expropriated property. One of SWEPCO's appraisers, Landon, considered as comparables, five water intake sites and 25 lakefront residential lots. Two of the water intake sites are 10-20 miles distant and are not on Hart's Bluff. SWEPCO's other appraisers considered the intake sites at Hart's Bluff and elsewhere but rejected them as comparables. The landowners' appraiser, Dupree, used three Hart's Bluff intake sites, two of which were transferred by the landowners, and one of which was transferred by a neighbor, as comparables.

Without detailing the opinion evidence and comparables upon which it was based, we simply tabulate the respective appraisals and the court's award. The award "A" is for the intake site taken in full ownership. The award "B" is for the pipeline servitudes, permanent and temporary. The award "C" is for timber on the servitude.

    (SWEPCO)        (SWEPCO)        (SWEPCO)         (L/OWNR)
    SISTRUNK         LANDON         WILLIAMS          DUPREE            COURT
A   $25,500.        $27,350.        $17,500.        $108,790. 

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Bluebook (online)
485 So. 2d 72, 1986 La. App. LEXIS 6238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southwestern-elec-power-co-v-scurlock-lactapp-1986.