State, Department of Transportation & Development v. Campbell

617 So. 2d 1224, 1993 La. App. LEXIS 1376, 1993 WL 117156
CourtLouisiana Court of Appeal
DecidedApril 14, 1993
DocketNo. 92-664
StatusPublished
Cited by1 cases

This text of 617 So. 2d 1224 (State, Department of Transportation & Development v. Campbell) 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
State, Department of Transportation & Development v. Campbell, 617 So. 2d 1224, 1993 La. App. LEXIS 1376, 1993 WL 117156 (La. Ct. App. 1993).

Opinion

KNOLL, Judge.

This is an appeal in an expropriation suit. The Department of Transportation and Development (DOTD) appeals the trial court judgment which awarded defendants, Ira L. Campbell, Jr. and his wife, $64,859 for future economic losses associated with the expropriation. DOTD’s argument on appeal is that the trial court erred in awarding compensation for future economic loss which was based on speculative testimony. [1225]*1225We remand for the taking of additional evidence.

FACTS

DOTD brought this action against Mr. and Mrs. Ira L. Campbell, Jr., the owners/lessors 1 of a tire/automobile service business in Natchitoches, to expropriate a strip of land, measuring approximately 15 feet in width with a corner flare widening to approximately 45 feet at the intersection of Keyser Avenue and East Fifth Street.

When DOTD initiated the expropriation, the property was leased by the Campbells to Goodyear Tire & Rubber Company. The written lease, which began on May 24, 1972, provided for a 10 year primary term with two 5 year option periods. At the time of the expropriation, the lease was in its second option period and had a termination date of August 31, 1993.

DOTD initiated the expropriation proceeding by depositing $17,836 in the registry of the court as estimated compensation due the Campbells. The Campbells answered, asserting that additional compensation was due for severance damages and future business losses.

At trial, the parties stipulated that the value of the part taken was $20,160. In addition, the trial court awarded the Camp-bells $127,840 for severance damages. DOTD has not appealed these awards.

The trial court also awarded the Camp-bells future economic losses of $64,859. At the time of trial, highway construction had not begun. However, the trial court made an award of economic loss since construction was imminent. There was a clause in the written lease between the Campbells and Goodyear which granted Goodyear the right to terminate the lease if the business premise or any part thereof was expropriated.2 The trial court itemized this award as follows: (1) $8,644 for losses during building construction; (2) $12,965 for losses during highway construction (180 days @ $72.03/day); (3) $43,250 for reasonably anticipated lower rental payments. This appeal followed.

FUTURE ECONOMIC LOSSES

DOTD contends on appeal that the trial court’s award for future economic losses was speculative. It argues that the evidence does not preponderate that quantifiable economic losses were anticipated before the expiration of the Goodyear lease on August 31, 1993.

The general law and jurisprudence on expropriation is well developed in Louisiana and will not be repeated herein. See, State, DOTD v. Dietrich, 555 So.2d 1355 (La.1990). With regard to the specific issue presented in the case sub judice, it is established that where the landowner challenges the amount DOTD deposits for compensation, a greater value must be proven by a preponderance of the evidence. Id. Proof of economic loss may be determined by various methods, and it may exceed the market value of the property. However, the method employed for proof of loss must demonstrate by a preponderance of the evidence that an actual loss will be [1226]*1226sustained by the business because of the taking. Id.

It is undisputed that highway construction on Keyser Avenue had not begun as of the time of trial. Equally undisputed is that at the time of trial, Goodyear continued to timely pay its monthly rentals and had not informed the Campbells that it would exercise its right under the lease to terminate the lease because of the expropriation.

Dr. Melvin Harju, an economist, testified as an expert witness on behalf of the Campbells. Dr. Harju stated, in pertinent part:

“I had in my notes that we could expect that Goodyear would be out of operation for 120 days [the estimated time of construction for remodeling the building].
[[Image here]]
So essentially what I am saying is that if they were out of operation for 120 days, if they did in fact demand that they not pay rent obviously for the time that they were out of operation, then Doctor Campbell would be out an additional eight thousand, six hundred and forty-four dollars ($8,644.00).
Now, if you’ll look at the second of those three calculations there you’ll see the losses to the end of the lease. Now, I don’t mean to imply that these are actual losses, they are potential losses that could occur if he were not to receive any more lease payments from today until the end of the lease.
As I appreciate it the lease, current lease, should end on the 31st of August of 1993. This is currently the 15th of October, 1991, which means that there are 686 days left on the remaining lease. Based upon the lease rate of twenty-six thousand, two hundred and ninety-two dollars ($26,292.00) per year if he were not to receive any additional lease payments between now and the end of the lease his losses for the period to the end of the lease would be forty-nine thousand, four hundred and fifteen dollars ($49,415.00).
Now obviously, as I appreciate it, he still is receiving such payments, and may on into the future. So what I’ve done is to have shown the lease payments per day, which are seventy-two dollars and three cents ($72.03). So it would be very easy to say this, for example, that if the days out of operation completely were two hundred days you’d simply take two hundred times seven-two [sic] dollars and three cents and that would be the amount of the loss. If there were additional days in which there would be perhaps a reduction in lease payments, although not an absolute reduction to zero, then one could take the number of such days, multiply the percentage times this figure, seventy-two dollars, and arrive at a figure for that period of time. So I have attempted to put the seventy-two dollar figure on there so that that could be used in conjunction with whatever the evidence supports as to the expected down time for this particular facility.
[[Image here]]
So if the days out of operation were 120 the minimal loss would be eighty-six hundred and forty-four dollars.
[[Image here]]
[If we take into account the possibility of a longer period of time for down time that] exceeded 120 days, then the amount of the loss would be greater than eight thousand, six hundred and forty-four dollars, but less than forty-nine thousand, four, fifteen, since that would represent the totality of the remaining lease payments from today until the end of the lease.”

Later, under cross-examination, the following colloquy developed between counsel for DOTD and Dr. Harju:

“Q. Has construction started on this project?
A. Not to my knowledge. I understand that it’s supposed to be let soon, or was designated to be ...
Q. Do you know when it will start?
[[Image here]]
A. No, I don’t. And that’s the reason why I stated in terms of dollars per day. [1227]

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Bluebook (online)
617 So. 2d 1224, 1993 La. App. LEXIS 1376, 1993 WL 117156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-transportation-development-v-campbell-lactapp-1993.