State, Dept. of Transp. v. Maynard

565 So. 2d 532, 1990 La. App. LEXIS 1675, 1990 WL 88163
CourtLouisiana Court of Appeal
DecidedJune 28, 1990
Docket89-CA-1790, 89-CA-1791
StatusPublished
Cited by16 cases

This text of 565 So. 2d 532 (State, Dept. of Transp. v. Maynard) 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, Dept. of Transp. v. Maynard, 565 So. 2d 532, 1990 La. App. LEXIS 1675, 1990 WL 88163 (La. Ct. App. 1990).

Opinion

565 So.2d 532 (1990)

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION
v.
George MAYNARD, et al.

Nos. 89-CA-1790, 89-CA-1791.

Court of Appeal of Louisiana, Fourth Circuit.

June 28, 1990.

*534 Ronald J. Bertrand, Rayne, for plaintiff/appellant.

Randy Opotowsky, Steeg and O'Connor, New Orleans, for defendants/appellants.

Before CIACCIO, WILLIAMS and PLOTKIN, JJ.

CIACCIO, Judge.

In this expropriation suit, both the State and the property owners have appealed from the judgment of the trial court. For the following reasons, we amend and affirm.

FACTS

The State of Louisiana, through the Department of Transportation and Development (State), instituted these suits to expropriate portions of two adjacent tracts of land located in eastern New Orleans. The land was needed by the State as part of a project known as the Almonaster Interchange on State Route I-510 from St. Bernard Parish to the Interstate 10 intersection at Paris Road.

These subject properties are bounded generally by Paris Road, Old Gentilly Road, the proposed Bullard Road extension and the L & N Railroad. The smaller tract, which prior to any expropriations, was fronted on Paris Road, was purchased in 1977 by Mr. and Mrs. George Maynard from New Orleans Public Service, Inc., and is referred to herein as the NOPSI tract. The larger tract, which is located to the west of and adjacent to the NOPSI tract, was purchased by the Maynards and Mr. and Mrs. Henry Smith in 1980 from the Charbonnet family, and is referred to as the Charbonnet tract.

The record reveals that in 1968, the State of Louisiana announced a project to build what was known as the Dixie Freeway across the land owned by property owners. In 1976 or 1977, due to certain environmental problems, this proposal evolved into the construction of two spurs in the New Orleans area, one of which was labeled as I-510, known as the Almonaster Interchange. Part of the property owned by the Charbonnet family and the Maynards and Smiths was needed for the construction of a service road and drainage servitude for this project. In March 1979, George Maynard contacted the Department of Transportation and Development concerning his plans to develop and subdivide his property. The State informed Maynard at that time that they opposed any development of property within the State right of way, but that he was free to develop any of the lots outside of the proposed right of way. The right of way requirements at that time *535 were preliminary plans and had not yet been finalized.

In February 1980, upon request of the landowners, the State acquired certain portions of property from the NOPSI and Charbonnet tracts which would be needed for the project. Maynard and Smith subsequently purchased the remainder of the Charbonnet tract in March 1980. Following this initial expropriation, the State made some design changes in the project and found it necessary to expropriate additional areas of this property. The State then instituted the present proceedings in 1986 against the Maynards as owners of the NOPSI tract and against the Maynards and Smiths as owners of the Charbonnet tract to obtain the additional property. These two lawsuits were consolidated for trial.

An order of expropriation was signed by the court on December 19, 1986. On the same day, the State deposited into the registry of the Court the sum of $361,139.00 for the NOPSI tract and $679,339.00 for the Charbonnet tract, representing the State's estimated value of the land expropriated. After withdrawing the funds deposited, the property owners answered the petition of the State on September 30, 1987 and reconvened, claiming additional compensation as follows: 1) value of the land taken; 2) severance damages in the form of the cost to cure; and 3) loss of use/unreasonable delay damages.

Trial of this matter occurred on December 7, 12 and 13, 1989. At trial, the State presented the testimony of its expert appraiser. The property owners presented testimony from two expert appraisers. After taking the matter under advisement, judgment was rendered on February 23, 1989. The trial court found that additional compensation was due to the property owners for the value of the land taken over and above the amount deposited in the court registry. Neither the State nor the property owners appeal this part of the judgment, and it will therefore not be considered by this Court. The trial court also awarded the property owners damages in the amount of $313,632.00 for the NOPSI tract and $580,219.00 for the Charbonnet tract for the loss of use and unreasonable delay by the State in expropriating the property. Both the property owners and the State appeal this portion of the judgment. In addition, the property owners appeal that part of the judgment which denies them severance damages in the form of "cost to cure." The property owners also appeal the amount of attorney's fees awarded. Further, the State appeals from the trial court's calculation of attorney's fees and legal interest which were awarded to the property owners.

LOSS OF USE/UNREASONABLE DELAY

The property owners contend that the trial court erred in the method of calculating damages due for the loss of use of their property during the pendency of the State project. The State argues that damages for loss of use or unreasonable delay are not compensable, or in the alternative, that the property owners failed to meet their burden of proof to establish the alleged loss. We must first determine whether these damages are recoverable under Louisiana law.

It is now recognized that the Louisiana Constitution of 1974, Article 1, Section 4, effected substantial changes in expropriation law, requiring that a property owner in an expropriation proceeding be compensated "to the full extent of his loss." Under this current provision, the property owner cannot be limited to receiving the market value of the property taken and the severance damages to his remainder; rather, such an owner must be put in as good a position pecuniarily as he would have been had his property not been taken. State, Through Dept. of Highways v. Champagne, 356 So.2d 1136 (La.App. 3rd Cir. 1978); State, Through Dept. of Highways v. Constant, 359 So.2d 666 (La.App. 1st Cir.1978), affirmed and amended, 369 So.2d 699, 702 (La.1979).

The law as it stands now allows for compensation in areas that were not previously compensable. Based on this broadening of the constitutional requirements for measure of damages, the property *536 owner must now be compensated for any economic loss sustained as a result of the taking upon adequate proof of such loss. Id., 359 So.2d at 672. Certainly, if a property owner establishes damages resulting from loss of use, such loss may be compensated. We therefore conclude that damages suffered from the loss of use of property which has been taken out of commerce for an unreasonable length of time by an impending expropriation are recoverable. We must now determine whether the property owner herein has submitted adequate proof of such damage.

The record in the case under consideration establishes that the State first announced this project in 1968, and based on environmental problems and federal intervention, actual construction did not begin until 1988 and was expected to be completed by 1990-1991. The property owners contend that the State's inaction during this time caused a "chilling effect" which prevented the marketing or development of this property.

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Bluebook (online)
565 So. 2d 532, 1990 La. App. LEXIS 1675, 1990 WL 88163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-transp-v-maynard-lactapp-1990.