State of La., Thru Dotd v. Paul Henry Wagner
This text of State of La., Thru Dotd v. Paul Henry Wagner (State of La., Thru Dotd v. Paul Henry Wagner) 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.
Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-644
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
VERSUS
PAUL HENRY WAGNER
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 34,960 HONORABLE J.P. MAUFFRAY, JR., DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir and Billy Howard Ezell, Judges.
AFFIRMED AS AMENDED.
Bernard L. Knobloch, Jr. Attorney at Law P. O. Box 94245 Baton Rouge, LA 70804-9245 (225) 237-1341 Counsel for Plaintiff/Appellant: State of Louisiana, Department of Transportation and Development R. Joseph Wilson Donald R. Wilson Attorneys at Law P. O. Box 1346 Jena, LA 71342 (318) 992-2104 Counsel for Defendant/Appellee: Paul Henry Wagner DECUIR, Judge.
In this expropriation case, a jury determined the amount of damages to be paid
to Paul Henry Wagner by the Louisiana Department of Transportation and
Development (DOTD) for the taking of Wagner’s property in a road construction
project. The $136,242.00 award consisted of $84,588.00 as the value of the property
taken with improvements, and $51,654.00 in other economic losses. Wagner was also
awarded attorney fees equal to 25% of $51,162.00, described in the judgment as “the
difference between the amount awarded for compensation and the amount deposited
into the Registry of Court.” Both Wagner and DOTD have appealed the economic
loss portion of the award, and Wagner requests an increase in attorney fees. For the
following reasons, the judgment rendered below is amended as urged by Wagner, and
as amended, is hereby affirmed.
Wagner was the owner of 2.465 acres of land located at the intersection of U.S.
Highway 165 and U.S. Highway 84 in LaSalle Parish near the town of Tullos. On
January 27, 2006, in connection with the widening and improvement of U.S. Highway
165, DOTD expropriated a portion of the land owned by Wagner. The taking
consisted of 0.885 acres and included two gutted buildings, built decades ago as a gas
station and restaurant, leased at the time of the taking for a future flea market. The
remaining property, which Wagner had never developed since inheriting the tract in
the 1980s, consisted of a wooded lot fronting U.S. Highway 165 and restricted in part
by a sewage servitude.
Wagner testified that he hoped to build a modern gas station and convenience
store on the property. He presented the testimony of Michael Wilson, who was
qualified as an expert in the planning, construction, and operation of convenience
stores, who opined that the highest and best use of the subject property is as a convenience store due to several factors. The property is located at the only
intersection of two U.S. highways in the parish, it is sixty miles along U.S. Highway
165 from the nearest similar facility, and it is the only corner at the intersection
feasible for construction of such a facility. Wagner also presented the testimony of
two experts who described the steps necessary to prepare the wooded, unimproved
property for construction, including moving the sewage line, at a cost of nearly
$130,000.00. In this appeal, Wagner does not ask the court to award damages for the
construction of a new, modern building; rather, he requests an increase in damages
to reflect the estimated cost of preparing his remaining tract for construction at his
own expense. Mr. Shelby Loe, an expert contractor in the field of site preparation,
estimated that cost at $129,291.50. Loe’s testimony was unrefuted.
By contrast, DOTD’s evidence consisted of estimates of the value of the
property taken and severance damages, as well as a discussion of the lack of other
economic damages. Severance damage is essentially the diminution in value of the
landowner’s remaining property after the taking of the subject property. The State’s
appraisers used different methods of calculating Wagner’s loss and ultimately offered
Wagner a total of $85,080.00, representing the value of the land and improvements
thereto, plus severance damages. DOTD deposited that amount into the registry of
the court at the time of the taking.
After considering the evidence presented, the jury awarded Wagner a portion
of the damages he claimed, assessed at $51,654.00 for “other economic losses,” a
figure taken from Loe’s testimony and listed as an itemized expense in the work he
proposed. DOTD contends Wagner has not proved any economic losses, while
2 Wagner argues he is entitled to no less than $129,291.50, the full amount of Loe’s
proposed work.
In the recent case of Lafayette City-Parish Consolidated Government v.
Entergy Gulf States, Inc., 07-1065 (La.App. 3 Cir. 1/30/08), 975 So.2d 177, 181, writ
denied, 08-685 (La. 5/16/08), 980 So.2d 712, this court discussed the standard of
review in an expropriation case:
The standard of appellate review of factual findings in a civil action is the manifest error/clearly wrong standard, and factual findings should not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the reviewing court may not reverse. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id.
An assessment of damages in an expropriation case must include consideration
of the most profitable use to which the land can be put “by reason of its location,
topography, and adaptability.” City of Shreveport v. Abe Meyer Corp., 219 La. 128,
52 So.2d 445, 447 (1951). The process of taking such factors into consideration is
commonly known as the “highest and best use” doctrine. Exxon Pipeline Co. v. Hill,
00-2535 (La. 5/15/01), 788 So.2d 1154, 1160; State, Dep’t of Highways v. Rapier,
246 La. 150, 164 So.2d 280 (1964). “It is well established that the current use of the
property is presumed to be the highest and best use and the burden of overcoming that
presumption by proving the existence of a different highest and best use based on a
potential, future use is on the landowner. . . . The characteristics examined by the
experts cannot be speculative and must consider the property in its use at the time of
expropriation.” Exxon, 788 So.2d at 1060-62.
3 The jury was presented with evidence showing that the highest and best use of
the subject property was as a commercial site. Wagner testified as to his intention to
build a gas station and convenience store on the property. Wagner explained that he
had not upgraded to a new gas facility which complied with current laws because the
road construction project had been discussed for a decade or more; he did not want
to build a modern gas station only to have it torn down by DOTD a few years later.
The jury also heard evidence regarding the need to incur expenses in moving the
sewage line on the remainder property. Mr. Loe’s testimony on that subject, as well
as his written estimate of $129,291.50 in costs to properly prepare the property for
construction, was uncontradicted by DOTD. Nevertheless, the jury quantified
Wagner’s economic loss in the adaptation of the remainder property to commercial
use at $51,654.00, a figure taken from the testimony of Mr. Loe, but which
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