State, DOTD v. McKeithen

976 So. 2d 832, 42 La.App. 2 Cir. 830, 2008 La. App. LEXIS 218, 2008 WL 442086
CourtLouisiana Court of Appeal
DecidedFebruary 20, 2008
DocketNo. 42,830-CA
StatusPublished
Cited by3 cases

This text of 976 So. 2d 832 (State, DOTD v. McKeithen) 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. McKeithen, 976 So. 2d 832, 42 La.App. 2 Cir. 830, 2008 La. App. LEXIS 218, 2008 WL 442086 (La. Ct. App. 2008).

Opinion

MOORE, J.

_JjThe State of Louisiana, Department of Transportation and Development, appeals a judgment condemning it to pay $914,181 as just compensation for a 2.669-acre strip of land expropriated to widen a highway in Caldwell Parish and for the closure of a cotton gin necessitated by the taking. Finding error in one portion of the district court’s calculation, we amend the judgment to $869,181 and the attorney fees to $145,000, but in all other respects affirm.

Factual and Procedural Background

In 2005, the state initiated a project to widen and improve U.S. Hwy. 165 through Columbia. It needed to expropriate four parcels of land, including 2.669 acres along [836]*836the base of a triangular 7.3-acre tract which Corey Gin Co. (“Corey”) had utilized as a cotton gin since 1953 under a 99-year lease. Neither the gin itself nor its accessory structures (other than one scale and an office space) were located on the land to be taken, but after the taking the new highway would run a mere 20 feet from the gin’s staging platform. Corey contended that without adequate space for rigs to enter, unload and exit safely, the business could no longer operate. The state countered that because of Corey’s limited capacity of about 10,000 bales per year and the market trend toward larger ginning facilities, Corey could not have remained in business.

Upon filing suit, the state tendered $305,109 as just compensation for Corey.1 The state also hired consultants who proposed, over a year after the ^taking, a “cure” to reconfigure the staging area around the gin, pave much of the surface and replace the scale, whereby the gin could stay open. Corey and its own consultants, however, maintained that the cure was unfeasible and that the tender was inadequate. Corey demanded $1.5 million for the closure of the gin.

Prior to trial, the parties stipulated that the value of the expropriated land was $6,250 per acre. The issue for trial was just compensation for the improvements taken and any resultant damages.

Overview of Corey’s Evidence

The matter proceeded to a four-day trial in July 2006. Charles Rowland, Corey’s general manager and president, testified that Corey was built in 1953. Despite its corporate status, Corey was run as a cooperative for local cotton farmers. Most of its excess revenues were returned to farmers as rebates, and it did not charge its members for ginning. Even though Corey showed a profit in only two of its last five years of operation, during this time it had reduced a debt of $1.8 million incurred to purchase a nearby gin to $250,000. Although the ginning business had its “ups and downs,” Rowland had fully expected Corey to continue into the future. He described Corey’s layout and manner of operation, and specifically how the loss of over one-third of its land would make the business unsustainable. He had examined the state’s original and revised cures, but felt they did not leave enough space for a 70-foot rig to turn around.

Thomas A. Calloway II, a cotton farmer and gin manager in Ft. Necessity, testified that although Corey’s clientele was loyal and its facility pin excellent condition, it could not operate on the remaining small tract. Buddy Tanner, a gin operator in Frogmore, testified that no gin could possibly operate on 4V2 acres.

Tony Dollar, a gin appraiser from Killen, Alabama, testified that although he had no college degree or specialized training, he routinely applied a formula he had learned from his now-deceased mentor, Dick Day, to evaluate cotton gins. Based on this formula, any gin with a 10,000-bale annual capacity has an ongoing business value of $1.15 million, and Corey’s equipment had a replacement value of $287,500 in its current condition. He originally thought the equipment itself had been taken, but when advised that Corey still owned it, he estimated it had a salvage value of $60,000.

David Johnston, an expert in business valuation, testified that an asset-based analysis was most appropriate in this case; he disagreed that sales of other gins were truly comparable. Using Dollar’s $287,500 [837]*837figure for the equipment, Johnston testified that Corey’s value as an ongoing business was $1,150,000.

Gene Cope, a certified appraiser from Lafayette, testified that because of the tract’s shape and gin’s construction, Corey was a special design property which would be best valued by a cost approach. Accepting Tony Dollar’s estimate of the replacement cost of the machinery, he fixed the total replacement cost at between $1.4 and $1.7 million. After depreciation, he fixed total just compensation at $974,181 if Corey retains its lease on the remainder of the tract, and $1,180,700 if it loses its lease.

\ ¿Overview of the State’s Evidence

James L. Whitman, a cotton farmer and former gin manager in Rayville, testified that gins in Louisiana normally gin cotton for the seed, at no cost to the farmer, and actually pay a rebate to the farmer. Because of new varieties, however, gins are earning less from seed sales while other costs have risen. Because of these economics, six gins had closed in Richland Parish in recent years. He also testified that many farmers now carry their cotton to gin in shrink-wrapped modules, which hold more and travel farther, thus cutting the advantage of local gins. However, he was certain that a gin could survive on a smaller tract than Corey’s.

Charles Taylor Jr., a civil engineer from Monroe, testified that the taking removed a significant area of Corey’s operation, but that the state’s proposed cure would allow it to stay in business. The cure, which would cost $321,000, complied with all federal safety regulations, leaving sufficient room for an 18-wheeler or module truck to make a 360° turn. (Corey’s witnesses Rowland, Calloway and Tanner disagreed; during the hectic ginning season, a gin needed space enough for two cotton trailers to maneuver at the same time, and the proposed cure was simply too tight.)

Appraiser Billy Bratton of Alba, Texas, prepared a detailed appraisal. He fixed the replacement cost of Corey’s equipment at $258,000, but testified that on the date of taking it was worth $105,000.

Keats Everett, an appraiser from Monroe and adjunct professor at Louisiana Tech and University of Louisiana in Monroe, testified that he used a market data approach to evaluate the taken property. He found four | ¡^comparable sales of gins in the area between 1993 and 2005, concluding that the total value of Corey’s land, improvements and site improvements was $336,000.

The state’s expert in financial accounting, Michael E. Daigle of Covington, testified that an asset-based analysis was appropriate to evaluate a business like Corey, which did not turn a profit (he disagreed with Corey’s witness, Tony Dollar, who used a direct capitalization approach). He excluded cash receivables, vehicles, and other items not actually taken, and used Bratton’s estimate of the equipment value and Everett’s appraisal of land and improvements. He concluded that Corey’s total value was $370,000.

Action of the District Court

In written reasons for judgment, the court first stated the parties’ positions. It found that the cure proposed by the state would not restore Corey’s ability to operate. The court specifically cited the testimony of Corey’s general manager, Rowland, and of Calloway and Tanner, that the gin could not functionally and properly operate onsite after the taking.

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Related

State, Department of Transportation & Development v. Everett
47 So. 3d 631 (Louisiana Court of Appeal, 2010)
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Bluebook (online)
976 So. 2d 832, 42 La.App. 2 Cir. 830, 2008 La. App. LEXIS 218, 2008 WL 442086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dotd-v-mckeithen-lactapp-2008.