STATE, DOTD v. McMillion Dozer Service

639 So. 2d 766, 1994 WL 231448
CourtLouisiana Court of Appeal
DecidedMay 31, 1994
Docket93-CA-590
StatusPublished
Cited by16 cases

This text of 639 So. 2d 766 (STATE, DOTD v. McMillion Dozer Service) 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. McMillion Dozer Service, 639 So. 2d 766, 1994 WL 231448 (La. Ct. App. 1994).

Opinion

639 So.2d 766 (1994)

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
v.
McMILLION DOZER SERVICE, INC.

No. 93-CA-590.

Court of Appeal of Louisiana, Fifth Circuit.

May 31, 1994.
Rehearing Denied August 16, 1994.

*767 Bernard L. Malone, Office of the General Counsel, Baton Rouge (Ronald J. Bertrand, of counsel), Rayne, for plaintiff-appellant.

David Stone, Randall A. Smith, Scott T. Whittaker, Stone, Pigman, Walther, Witmann & Hutchinson, New Orleans, for defendant-appellee.

Before GAUDIN and GRISBAUM, JJ., and JOHN C. BOUTALL, J. Pro Tem.

GRISBAUM, Judge.

In this expropriation matter, the Louisiana Department of Transportation and Development (DOTD) appeals from a jury award finding the DOTD liable for $300,000 in delay damages and the legal interest award from the date of the expropriation petition, rather than from the date of legal demand. We amend in part and, as amended, we affirm.

ISSUES

We are called upon to determine three specific questions:

(1) Whether the jury interrogatory concerning delay damages was sufficient to inform and allow the jury to make a factual finding as to whether delay damages were due;

(2) Whether the evidence supports the jury's finding that delay damages were due; and

(3) Whether the 1993 amended version of La.R.S. 48:455 should be applied retroactively thereby allowing defendant to collect legal interest from the date of the filing of DOTD's petition as opposed to the date of legal demand.

BASIC RECORD FACTS AND PROCEDURAL HISTORY

On March 28, 1989, the DOTD filed suit to expropriate defendant's land in connection with the I-310 interchange project at Airline Highway in St. Charles Parish. On March 30, 1989, the DOTD deposited $487,952 into the court registry.

Defendant, McMillion Dozer Service, Inc. (McMillion) filed an answer on August 16, 1990 seeking additional compensation to the amount deposited. In addition to requesting additional compensation for the land taken and severance damages, McMillion sought delay damages and business damages.

A jury trial was held January 12-14, 1993 whereby the jury found that the DOTD owed $376,000 for the land taken, $375,000 for severance damages and $300,000 for delay damages. The jury did not award any amount for the alleged business damages. The trial court's judgment incorporated the jury's award and further awarded legal interest on the difference between the amount *768 previously deposited and the amount owed. The interest was to be computed from March 28, 1989, which was the date of the filing of DOTD's expropriation petition. Thus, this appeal ensued.

ISSUE ONE

STANDARD OF REVIEW

Our jurisprudence tells us that interrogatories that are misleading or confusing may constitute reversible error. However, the manifest error standard must be applied in determining whether an interrogatory is so inadequate that the jury is precluded from reaching a verdict based on correct law and facts. Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La.App. 3d Cir.1991).

ANALYSIS

The following interrogatory form was submitted to the jury:

SPECIAL JURY INTERROGATORIES
1. What amount of money do you find is just compensation for the land taken by the DOTD from McMillion Dozer Service, Inc.?
$376,000.00
2. What amount of money do you find is just compensation for the severance damages caused by the DOTD's taking to the remainder of land owned by McMillion Dozer Service, Inc.?
$375,000.00
3. What amount of money do you find is just compensation for the delay damages suffered by McMillion Dozer Service, Inc. as a result of its property being taken out of commerce, because of the DOTD's actions, for an unreasonable or excessive length of time?
$300,000.00
4. What amount of money do you find is just compensation for the business damages to McMillion Dozer Service, Inc. as a result of the DOTD's taking?
$0.00

The DOTD only appeals the language of the third interrogatory claiming that the wording does not allow the jury to make a factual finding of whether delay damages are due but rather dictates to the jury to fill in the amount owed for such damages.

Prior to jury deliberations, the DOTD objected to the interrogatory form on the ground that question Nos. 3 and 4 should not be separate and distinct questions because question No. 2, addressing severance damages, was sufficient to cover delay and business damages. When a party fails to object to the jury interrogatory form before the jury retires, the party waives his right to raise the objection on appeal. Horton v. McCrary, 620 So.2d 918 (La.App. 3d Cir. 1993). While we question whether appellant's objection was sufficient to preserve its right to appeal the issue of the wording of the interrogatories, we will nonetheless address it.

The record shows the trial judge instructed the jury several times regarding delay damages. The trial judge stated, "Further, the State must also pay McMillion for any damages it incurred prior to the expropriation in 1989 if you find that its property was taken out of commerce for an unreasonable length of time prior to the expropriation."

The trial judge also advised the jury of the defendant's burden of proof concerning delay damages, as follows:

To recover delay damages, McMillion must prove that it is more like than not that its property was effectively taken out of commerce for an unreasonable length of time due to the State's actions.
If McMillion's property was taken out of commerce for an unreasonable or excessive length of time because of the State's actions, then McMillion is entitled to recover all damages it sustained resulting from such actions by the State.

We cannot say that in the totality of the jury instructions and the jury interrogatory form the jury misunderstood the issues before them. It is clear from the jury's findings they understood that they must first make a factual finding as to whether such damages were due. In addition, all four interrogatories are worded the same. The first two categories, the value of the land and severance damages, are owed as a matter of *769 law. The latter two categories, delay and business damages, are due only if the facts indicate that such damages were suffered. State DOTD v. Brookhollow of Alexandria, 578 So.2d 558 (La.App. 3d Cir.1991), writ denied, 581 So.2d 709, 710 (La.1991). We find the jury necessarily made factual determinations when it decided delay damages were due while business damages were not. Ergo, we see no error.

ISSUE TWO

STANDARD OF REVIEW

Now, we will be reviewing the factual findings of the jury which should not be disturbed absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

ANALYSIS

The DOTD appeals the jury's award for delay damages on the ground that the evidence does not support such a finding.

La. Const. art. I, § 4

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