State, Department of Transportation & Development v. Lauricella Land Co.

65 So. 3d 712, 2011 WL 1599656
CourtLouisiana Court of Appeal
DecidedApril 28, 2011
Docket10-CA-790
StatusPublished
Cited by5 cases

This text of 65 So. 3d 712 (State, Department of Transportation & Development v. Lauricella Land Co.) 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. Lauricella Land Co., 65 So. 3d 712, 2011 WL 1599656 (La. Ct. App. 2011).

Opinion

MARC E. JOHNSON, Judge.

12This appeal arises from a jury verdict awarding damages in favor of Defendant/Appellee, Lauricella Land Company, L.L.C. (hereinafter referred to as “Lauri-cella”), and against PlaintiffyAppellant, the State of Louisiana, Department of Transportation and Development (hereinafter referred to as “DOTD”), in the 24th Judicial District Court, Division “L”, for an expropriation matter. Both DOTD and Lauricella appeal the verdict, while DOTD also appeals the denial of a Motion for Directed Verdict. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 4, 2008, DOTD filed a Petition and an Order of Expropriation pursuant to LSA-R.S. 48:451, et seq. DOTD named Lauricella and The Pep Boys— Manny, Moe & Jack, Inc. as defendants to the action. The petition requested the immediate taking in full ownership of the property of the defendants located at the bottom of the Huey P. Long Bridge on Clearview Parkway (Parcel Numbers 22-3, |s22-4, and 23-3) for the purpose of constructing the “Huey P. Long Bridge Widening Westbank & Eastbank Approaches & Main Bridge Deck Widening State Routes LA-US 90, LA 3287, LA 48, & LA 18” project (hereinafter referred to as “the Project”). 1 The properties were located in a desirable, high-traffic area and were extremely valuable for commercial retail use before the taking. DOTD deposited $6,175,253.00 in the registry of the court for compensation for the expropriation.

The Order of Expropriation was signed by the trial cohrt on March 10, 2008. An Ex Parte Joint Motion to Withdraw Funds from the Registry of the Court was signed by the trial court on May 14, 2008. On November 19, 2008, Lauricella filed an Answer and Reconventional Demand requesting an amount sufficient to compensate Lauricella to the full extent of its loss for *716 the taking. 2

Prior to the commencement of trial, DOTD altered its right-of-way plans regarding Parcel 23-8. Parcel 23-3 is located on the FedEx/Kinko’s site on Clearview Parkway. The original right-of-way plan designed by DOTD included the taking of an area on the FedEx/Kinko’s site, which encompassed seven parking spaces. Additionally, DOTD’s original right-of-way plan included the removal of a semaphore traffic signal, which allowed a lane for protected left turn onto the FedEx/Kinko’s site, at the intersection of Clearview Parkway and East Corporate Boulevard; nonetheless, the turning lane was not eliminated. The altered right-of-way plan declared Parcel 23-3 “no longer necessary for the project.” The altered right-of-way plan continued to include the removal of the semaphore traffic signal. However, a traffic sign would replace the traffic signal.

On October 30, 2009, DOTD sent Lauri-cella a letter via certified mail | informing Lauricella that final approval had been received to sell Parcel 23-3. DOTD offered to sell Parcel 23-3 to Lauricella for $71,964.00 through a private sale. Lauri-cella did not accept DOTD’s offer.

A jury trial was held on November 16-19, 2009 on the matter. The jury was asked to determine just compensation for the three parcels taken (Parcel Numbers 22-3, 22-4, and 23-3) and severance damages to the remainder of the property, and was presented nine questions as Special Jury Interrogatories. After a four day trial, the jury awarded Lauricella a total of $9,601,698.00 in just compensation and severance damages. In particular, the jury awarded $608,107.00 as just compensation for the damages to the remainder of the land and improvements on the FedEx/Kin-ko’s site as a result of the taking, and $0.00 as just compensation for the loss of rental income relating to the FedEx/Kinko’s site as a result of the taking. The jury verdict was incorporated in the Judgment signed on December 8, 2009.

DOTD filed a Motion for Supplemental Deposit and to Amend Pleadings to Conform to Evidence on December 8, 2009 requesting to be allowed to amend its Petition and be allowed to deposit additional funds into the registry of the court for just compensation. The trial court sign an ex parte order granting DOTD’s motion on the same date. In response, Lauricella filed a Motion for Partial New Trial and/or Partially to Vacate Order on December 17, 2009 challenging the permission of the amendment of the pleadings by DOTD. On January 12, 2010, a Consent Judgment was issued granting Lauricella’s motion only in the respect that the rights of DOTD and Lauricella were fully reserved to appeal or answer any appeal of the December 8, 2009 Judgment. The instant appeal followed.

On appeal, DOTD only challenges the award as just compensation for the remainder of the land and improvements on the FedEx/Kinko’s site as a result of |sthe taking of Parcel 23-3.

ASSIGNMENTS OF ERROR

On appeal, DOTD alleges 1) the trial court erred as a matter of law in denying its Motion for Directed Verdict; 2) the jury erred in awarding severance damages without considering the effects of the alteration to the Project as proposed and planned by DOTD; and, 3) the jury erred in awarding severances damages based *717 upon a potential further loss of a traffic control signal.

In its Answer to the appeal, Lauricella alleges the amount of compensation awarded does not constitute just compensation for 1) the taking of its land, building and improvements by DOTD, and 2) damages for lost rental income. 3 Additionally, Lau-ricella seeks to recover additional attorneys’ fees incurred in responding to DOTD’s appeal.

LAW AND ANALYSIS

DOTD’s First Assignment of Error

DOTD alleges the trial court erred in not granting its Motion for Directed Verdict when the testimony established that damages were too remote and speculative to be compensable for Parcel No. 28-8. DOTD argues the testimony presented and the record establishes that 1) DOTD declared that Parcel No. 23-3 was not necessary for the Project; 2) the Project did not affect Parcel No. 23-3; and for these reasons, 3) no taking occurred that would give rise to a claim for damages under Title 48; and, 4) Lauricella’s evidence related only to a possible future claim in inverse condemnation. DOTD further argues the future damages for the traffic signal were highly speculative because DOTD has the legal right to amend its | (¡construction plans at any time prior to the completion of a project and has the right to control traffic without incurring liability for exercise of such control pursuant to Constance v. DOTD, 626 So.2d 1151 (La.1993). Lastly, DOTD argues the determination of whether Lauricella is entitled to severance damages for alterations in traffic control or patterns is a question of law that should have been ruled upon by the trial judge in the Motion for Directed Verdict, not a factual determination by the jury.

The trial judge has much discretion in determining whether or not to grant a motion for directed verdict. Warden v. Richoux, 09-794, p. 15 (La.App. 5 Cir. 3/23/10); 40 So.3d 139, 149, writ denied, 10-0921 (La.6/25/10);, 38 So.3d 340, citing Delaney v. Whitney National Bank, 96-2144, pp.

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Related

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Bluebook (online)
65 So. 3d 712, 2011 WL 1599656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-transportation-development-v-lauricella-land-co-lactapp-2011.