STATE, DOTD v. Brookhollow of Alexandria

578 So. 2d 558, 1991 WL 57868
CourtLouisiana Court of Appeal
DecidedApril 17, 1991
Docket89-1191
StatusPublished
Cited by17 cases

This text of 578 So. 2d 558 (STATE, DOTD v. Brookhollow of Alexandria) 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, DOTD v. Brookhollow of Alexandria, 578 So. 2d 558, 1991 WL 57868 (La. Ct. App. 1991).

Opinion

578 So.2d 558 (1991)

STATE of Louisiana—DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellant-Appellee,
v.
BROOKHOLLOW OF ALEXANDRIA, INC., Defendant-Appellee-Appellant.

No. 89-1191.

Court of Appeal of Louisiana, Third Circuit.

April 17, 1991.
Writs Denied June 21, 1991.

*560 Bertrand & Soileau, Ronald Bertrand, Rayne, for plaintiff-appellant-appellee.

Anna Dow, Baton Rouge, and Charles Gravel, Alexandria, for defendant-appellee-appellant.

Before STOKER, KNOLL and KING, JJ.

KING, Judge.

This appeal presents for review whether the trial court's awards for damages and attorney's fees in an expropriation proceeding are correct.

The State of Louisiana, through the Department of Transportation and Development (hereinafter plaintiff) filed suit to expropriate land from Brookhollow of Alexandria, Inc. (hereinafter defendant) on September 29, 1987. Plaintiff deposited $432,755.00 into the registry of the court as its estimate of just compensation for the expropriation of defendant's property.

On December 15, 1987, defendant answered plaintiff's suit seeking additional compensation from the plaintiff for the expropriation. A trial on the merits was held on May 3 and 4, 1989. The trial court rendered judgment fixing compensation at $655,000.00. The trial court also awarded defendant $20,000.00 in attorney's fees and $8,000.00 for expert witness fees. A formal written judgment was signed by the trial court on July 14, 1989.

Plaintiff filed a timely suspensive appeal from the trial court's judgment. Defendant also timely appeals the trial court's judgment and answered plaintiff's appeal seeking an increase in the amount of damages and attorney's fees awarded to defendant. We affirm the judgment of the trial court and increase defendant's attorney's fees by $1,500.00 for services rendered in connection with the appeal.

FACTS

In 1973 and 1974, defendant negotiated for and purchased approximately 246 acres of land (hereinafter the property) just outside the city limits of Alexandria, Louisiana for development. In approximately 1978, defendant learned that I-49 would be constructed near its property and would result in the loss of some of its property. Defendant asked the plaintiff to expedite the expropriation, but plaintiff refused.

Plaintiff filed suit in 1987, almost ten years after defendant first learned of the *561 proposed expropriation, to expropriate approximately thirty acres of defendant's land. Although listed as one parcel, the expropriation actually consisted of two non-contiguous tracts of land. The larger part taken will be used for I-49 and the smaller tract will be used to relocate Highway 1208-1, which had previously run alongside the property.

Plaintiff deposited $432,755.00 into the registry of the court as its estimate of just compensation for the expropriation of defendant's property. On December 15, 1987, defendant answered plaintiff's suit seeking additional compensation for the land expropriated. A trial on the merits was held on May 3 and 4, 1989. The trial court rendered judgment fixing compensation at $655,000.00, an amount which exceeded plaintiff's original deposit by $222,245.00. The trial court also awarded defendant $20,000.00 in attorney's fees and $8,000.00 for expert witness fees. A formal written judgment was signed by the trial judge on July 14, 1989.

Plaintiff filed a timely suspensive appeal urging two assignments of error. First, that the trial judge erred in awarding damages for loss of use to defendant as such damages are not recoverable in an expropriation proceeding under Louisiana law. Second, that, in the alternative, the trial judge erred in awarding damages for loss of use to defendant in the absence of sufficient evidence to justify such an award. Defendant answered plaintiff's appeal asking for an increase in the damages awarded and seeking additional attorney's fees. On appeal defendant urges three assignments of error. First, that the trial court erred by failing to award damages for condemnation blight. Second, that the trial court erred by awarding only $150,000.00 for damages for loss of use when expert testimony indicated that the amount awarded should have been $653,639.00. Third, that the trial court erred in failing to award sufficient attorney's fees.

LAW

The first assignment of error urged by plaintiff is that the trial judge erred in awarding damages for loss of use, so called "delay damages," to defendant. Plaintiff argues that such damages are not recoverable in an expropriation proceeding under Louisiana law.

Plaintiff argues that, under La.R.S. 48:453(B), damages are only to be determined on a basis of land values immediately before and immediately after the taking. However, La.R.S. 48:453(B) also states that, when determining damages, the effect of the completion of the project in the manner proposed or planned should also be taken into consideration and that the owner shall be compensated to the full extent of his loss.

The Louisiana Constitution of 1974, Article 1, Section 4, effected substantial changes in Louisiana expropriation law by requiring that a property owner in an expropriation proceeding be compensated "to the full extent of his loss." Under this current constitutional provision, the property owner cannot be limited to just receiving the market value of the property taken and severance damages to the remainder, rather, such an owner must be put in as good a pecuniary position as he would have been had his property not been taken. State, DOTD v. Dietrich, 555 So.2d 1355 (La. 1990); State, Dept. of Highways v. Bitterwolf, 415 So.2d 196 (La.1982); State, Through Dept. of Highways v. Constant, 369 So.2d 699 (La.1979); State, DOTD v. Chambers Investment Co., Inc., 576 So.2d 1174 (La.App. 3 Cir.1991); State, Dept. of Transp. v. Maynard, 565 So.2d 532 (La. App. 4 Cir.1990), writ den., 568 So.2d 1079 (La.1990); State, DOTD v. Crawford Business Trusts, 538 So.2d 1078 (La.App. 3 Cir.1989), writ den., 542 So.2d 1381 (La. 1989); State, Through Dept. of Highway v. Champagne, 356 So.2d 1136 (La.App. 3 Cir.1978). Compensation for damages that were not previously compensable are now permitted. Based on the broadening of the constitutional requirements for the measure of damages, the property owner must now be fully compensated for any economic loss sustained as a result of the taking upon adequate proof of such loss. Champagne, supra; Maynard, supra. If a *562 property owner establishes damages resulting from loss of use or delay, he may be compensated for the loss. Thus, we conclude that the damages suffered by defendant from the loss of use of its property which were caused by being taken out of commerce for an unreasonable length of time, due to plaintiff's delay in completion of the highway, are recoverable. For this reason, we find this assignment of error to be without merit.

The second assignment of error argued by plaintiff is that the trial court erred in awarding delay damages in the absence of sufficient evidence. Plaintiff claims that there was no factual basis for an award of delay damages by the trial court and that the amount awarded for delay damages is based on speculation and assumption.

Generally, damages for expropriation are to be awarded according to the highest and best use of the property. State, DOTD v. Chambers Investment Co., Inc., supra; State, through DOT v. Estate of Davis, 560 So.2d 566 (La.App. 5 Cir. 1990), writ den., 565 So.2d 424 (La.1990).

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Bluebook (online)
578 So. 2d 558, 1991 WL 57868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dotd-v-brookhollow-of-alexandria-lactapp-1991.