State Thru DOTD v. Wahlder

647 So. 2d 481, 1994 WL 680268
CourtLouisiana Court of Appeal
DecidedDecember 7, 1994
Docket94-761
StatusPublished
Cited by5 cases

This text of 647 So. 2d 481 (State Thru DOTD v. Wahlder) 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 Thru DOTD v. Wahlder, 647 So. 2d 481, 1994 WL 680268 (La. Ct. App. 1994).

Opinion

647 So.2d 481 (1994)

STATE Of Louisiana THRU DOTD, Plaintiff-Appellant,
v.
Michael WAHLDER, et al., Defendant-Appellee.

No. 94-761.

Court of Appeal of Louisiana, Third Circuit.

December 7, 1994.

*483 Charles E. Soileau, Rayne, for State of La., thru DOTD.

James C. Downs, Alexandria, for Michael Wahlder et al.

Kathy J. Johnson, Virgil Russell Purvis Jr., Jonesville, for Wilson Oil Co.

Before YELVERTON, THIBODEAUX and PETERS, JJ.

YELVERTON, Judge.

This expropriation compensation case is again before this court, a sequel to State, DOTD v. Wahlder, 554 So.2d p. 233 (La.App. 3d Cir.1989), writ granted 558 So.2d 561 (La.1990), on remand 560 So.2d 705 (La.App. 3d Cir.), writ denied 565 So.2d 446 (La.1990). The present case comes from an intervention filed by Wilson Oil Company, Inc. which was severed from the Wahlder expropriation suit filed by the State of Louisiana, through the Department of Transportation and Development (DOTD). In the intervention Wilson Oil claimed to be the owner of certain improvements located on the property owned by the Wahlders.

The trial court found that Wilson Oil owned some of the improvements on the land and awarded $36,075 for the improvements, $2,570 for moving expenses and 25% of the total award as attorney's fees. The DOTD appealed this judgment claiming that the trial court erred in finding that Wilson Oil owned the property expropriated, in accepting Steve Cagle as an expert witness and, if Cagle was rightfully accepted, in finding that there was a sound basis for his value conclusions. Wilson Oil answered the appeal and claimed that the trial court erred in not awarding it damages for its lost profits for the remaining balance of its lease and future extensions of this agreement and for other property shown to be owned by Wilson.

FACTS

In 1987 the DOTD brought expropriation proceedings against Michael and Nurit Wahlder, the landowners, depositing $163,371 into the registry of the court as full compensation. The property is located in Alexandria.

On the western half of the property was a building used as a service station/convenience store named Uncle Harvey's. R.C. Henderson was also named a party to this action as having a leasehold interest in this portion of the property. Wilson Oil filed a petition of intervention alleging that Henderson had assigned his lease and all interests in the premises to Wilson Oil and that it was the owner of certain improvements located on the expropriated land.

*484 Henderson had entered into a lease with Wahlder on May 22, 1978. Henderson then assigned all his rights in this lease to Wilson Oil on August 25, 1983 which was consented to by Wahlder and his wife. Perk, Inc., a company owned by Henderson and his wife, conveyed its interest in certain property located on the premises to Wilson Oil on August 31, 1983. Wilson Oil then renovated the premises.

Although the assignment of the lease from Henderson to Wilson Oil was not filed in the public records, the DOTD knew that Wilson Oil was the lessee of the premises at the time of the expropriation by way of correspondence with Mike Wilson, the president of Wilson Oil, throughout 1987. However, the DOTD never named Wilson Oil as party to the expropriation. Wilson Oil's intervention, besides asserting ownership to some of the improvements, also made a claim for lost profits.

The intervention claim was severed from the claim of the Wahlders for additional compensation. The Wahlder case proceeded to trial and judgment was ultimately rendered in their favor by this court for the sum of $185,708.58.

Wilson Oil's intervention claim was finally tried on June 1, 1993. The trial court found that Wilson Oil had proved ownership of the gas distribution system on the premises which consisted of the tanks and pumps and related pipes and islands. The court awarded $29,600 for the distribution system. The trial court also found that Wilson Oil had proved ownership of the hoist and signs and awarded $6,475 for those items. The trial court found that Wilson Oil failed to prove its claim for lost profits. A moving expense award for $2,700 which the DOTD admitted it owed was also included in the judgment. In addition, the trial court awarded attorney's fees to Wilson Oil in the amount of 25% of the total award pursuant to La.R.S. 48:453.

The DOTD appealed this judgment raising three assignments of error. Wilson Oil answered the appeal seeking more money.

OWNERSHIP OF PROPERTY

The DOTD claims in its first assignment that the trial court erred in finding Wilson Oil the owner of certain items of property expropriated and entitled to compensation for these items.

Specifically, the trial court found that Wilson Oil owned the gas distribution system, hoist and signs and awarded compensation for these items. The DOTD claims that these items were owned by either Perk, Inc. or the Wahlders and not by Wilson Oil.

The ownership of the property is a finding of fact by the trial court which can not be set aside by this court unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). This finding is correct as to the items found to belong to Wilson Oil by the trial court, which we will now explain.

On August 31, 1983, Perk sold the assets on the premises, which included the gas distribution system and the signs, to Wilson Oil. On the same day that Wilson Oil was assigned the lease and purchased the assets on the premises, Mr. Wilson also bought Perk and Henderson Oil Company, Inc. from Henderson. Mr. Wilson, on behalf of Perk, on the next day signed a collateral mortgage in favor of Security First National Bank pledging the property that Perk had originally sold to Wilson Oil.

On the day that Perk pledged the property to the bank, it no longer had an interest in the property. Wilson Oil was the true owner of the property then and remained the owner. There are no documents to indicate that Wilson Oil ever sold this property. Although the propriety of the mortgage from Perk to the bank is not at issue here, one cannot validly mortgage another's property. Acadian Production Corp. v. McKendrick, 223 La. 79, 64 So.2d 850 (1953).

The DOTD claims that the Wahlders are the owners because Mike Wahlder and Mr. Wilson agreed that under the terms of the lease, the improvements became the property of the lessor. Actually, the lease states that the improvements become the property of the lessee, but all parties agreed that that was a typographical error. The DOTD claims that the lease terminated by *485 operation of law on the date of taking and the improvements became the property of the Wahlders and not Wilson Oil. La.Civ. Code art. 2697.

The pertinent part of the lease reads as follows:

It is agreed and understood that all buildings on the leased premises, at the termination of this lease, shall belong to and remain the property of Lessee[sic]—Lessee shall have the right to remove, at the termination of this lease, all personal property or personal equipment placed on the leased premises by Lessee.

It is clear from this provision that only the buildings became the property of the lessors. All personal property or personal equipment placed on the leased premises by the lessee remained the property of the lessee. The lease further provided that the lessor had the right of first refusal to buy the personal equipment placed on the premises by the lessee which includes tanks, canopies or pumps.

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Cite This Page — Counsel Stack

Bluebook (online)
647 So. 2d 481, 1994 WL 680268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-thru-dotd-v-wahlder-lactapp-1994.