97-244 La.App. 5 Cir. 2/11/98, State, Dept. of Transp. and Development v. August Christina & Bros., Inc.

• Decision Date: 11 February 1998
• Citation: 716 So.2d 372
• Parties: 97-244 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 372

716 So.2d 372

97-244 La.App. 5 Cir. 2/11/98

STATE of Louisiana, DEPT. OF TRANSPORTATION AND DEVELOPMENT v. AUGUST CHRISTINA & BROTHERS, INC.

No. 97-CA-244.

Court of Appeal of Louisiana Fifth Circuit.

Feb. 11, 1998.

Opinion After Grant of Rehearing

July 28, 1998.

Salvatore Panzeca, Gregory G. D'Angelo, Panzeca & D'Angelo, Metairie, for Plaintiff/Appellant State of Louisiana, Department of Transportation & Development.

Salvatore Panzeca, Gregory G. D'Angelo, Panzeca & D'Angelo, Edward A. Michel, Metairie, for Plaintiff/Appellant on rehearing.

Mack E. Barham, Robert E. Arceneaux, Jerry B. Jordan, Travis Bourgeois, Barham & Arceneaux, New Orleans, for Defendant/Appellee August Christina & Brothers, Inc.

Before GAUDIN, BOWES and GOTHARD, JJ.

[97-244 La.App. 5 Cir. 1] BOWES, Judge.

Plaintiff, State of Louisiana Department of Transportation and Development (hereinafter "DOTD"), appeals a ruling of the trial court granting a judgment notwithstanding the verdict ("JNOV") and conditional new trial in favor of defendant, August Christina & Brothers, Inc., (hereinafter "Christina"), and assessing damages, interest, attorney fees, witness fees, costs and sanctions against DOTD totaling $1,076,118.00, and judicial interest from date of judgment until paid.

For the following reasons, we reverse the grant of the JNOV and the conditional grant of a new trial and we reinstate the verdict of the jury and render judgment accordingly.

[97-244 La.App. 5 Cir. 2] In addition, we vacate the award of attorney fees, judicial interest, costs and sanctions imposed against the DOTD, and we remand this matter for a determination of attorney fees, costs and expert witness fees in accordance with the views set forth in this opinion.

STATEMENT OF THE CASE

On December 5, 1988 the state filed a petition for expropriation against Christina seeking to expropriate property for the construction of Interstate 310 in St. Charles Parish. Plaintiff alleged that fair and just compensation for the property was $102,233.00 and that amount was deposited in the Registry of the Court. On February 21, 1989, Christina filed a motion to withdraw amount deposited in the Registry of the Court and reserved its right to later contest the value and damage amount set by DOTD. Some discovery motions were filed in 1989. On October 28, 1992, Christina filed a motion to withdraw interest on funds previously deposited in the Registry of the Court.

Notice of completion of the project was filed by DOTD on February 21, 1995. On April 21, 1995, Christina filed an answer to DOTD's petition for expropriation and a reconventional demand, alleging that the sum deposited into the Registry of the Court by DOTD was inadequate to compensate for damages incurred as a result of the expropriation of the property.

[97-244 La.App. 5 Cir. 3] On February 29, 1996, DOTD filed a motion for final judgment pursuant to La. R.S. 48:452.1, alleging that Christina had abandoned the suit by its failure to prosecute for five years after the filing of the petition for expropriation. Christina responded with the filing of a motion for sanctions, alleging that DOTD's motion for final judgment was a frivolous and unsupported pleading. The trial judge denied DOTD's motion for final judgment at a hearing on March 20, 1996. The trial court signed an order dated March 27, 1996 referring the motion for sanctions to the trial on the merits.

DOTD sought a writ of review from this Court concerning the denial of its motion for final judgment, but this Court denied the application for writs. DOTD then applied to the Louisiana Supreme Court for supervisory review, but that court also denied DOTD's application, stating "Stay Denied. Writ Denied. Relator may reraise on appeal."

On May 24, 1996, DOTD filed peremptory exceptions of prescription and peremption and no cause/no right of action. The exceptions were denied prior to the commencement of trial on May 30, 1996.

A jury trial was held on May 30-31, 1996 and June 17-19, 1996. On June 19, 1996, the jury returned with a verdict. The jury verdict was made the judgment of the court on July 30, 1996.

Christina filed a motion to fix attorney fees, expert witness fees and to tax costs on July 22, 1996, which was heard on September 24, 1996. On [97-244 La.App. 5 Cir. 4] August 7, 1996, Christina filed a motion for judgment notwithstanding the verdict (JNOV), alternative new trial or alternative additur, which was heard on October 29, 1996.

On November 22, 1996, the trial court rendered judgment granting the JNOV and conditional new trial, and assessing attorney fees, witness fees, interest and costs.

On January 16, 1997, DOTD filed its motion for appeal.

FACTS

Christina was the owner of a tract of land running north from River Road to a point about 60 feet short of Airline Highway. The tract of land is approximately one and one-half arpents wide (288 feet) and is intersected at two places by railroads, namely the Illinois Central Gulf Railroad ("ICG") and the Louisiana & Arkansas Railroad ("L & A"), creating three distinct segments. The state filed suit and expropriated two parcels of land from this property.

The first segment of land runs from the L & A Railroad to the northernmost point of the property, and it contains one of the parcels expropriated (parcel 21-2, located at the northernmost tip and 60 feet from Airline Highway). Immediately adjacent to this segment was a piece of property containing the Koehl Landfill. This landfill encroached upon and encompassed part of Christina's property. Christina sought compensation for the taking of the parcel 21-2, plus severance damages and delay [97-244 La.App. 5 Cir. 5] damages to the remainder of this first segment. Delay damages were sought because the landowner alleged that actions of the DOTD caused the property to be taken out of the stream of commerce for almost five years prior to the taking.

The second segment lies between the L & A and ICG Railroads, and consists of approximately 44 acres of virgin cypress swamp. This segment contains the second parcel taken (parcel 15-9, which lies somewhere in the middle of the segment). Christina sought compensation for the property taken, plus severance damages to the remaining property due to the inability to access the property under the I-310 elevated highway.

The third segment of land runs from ICG Railroad to River Road. This tract was unaffected by the taking and no damages were sought by the landowners.

Prior to the start of expropriation proceedings, DOTD had the property appraised by two experts, Jack Evans and Rebecca Deano. Jack Evans determined that the highest and best use of the property was to hold for future speculative development (not within the next 5-10 years) for industrial use (first segment) and residential development (middle segment). He appraised the value of the property taken at $26,852.00, and severance damage to the remainder of the property at $68,746.00. He found that no delay damages were occasioned by the DOTD and he opined that the landowner was due a total of $95,598.00.

[97-244 La.App. 5 Cir. 6] Rebecca Deano also found that the best and highest use of the land was to hold for future speculative development. She valued the portions of the property taken at $27,974.00 and appraised severance damages at $74,058.00, for a total valuation of $102,032.00. She also found that no delay damages were warranted in this case.

In filing the suit for expropriation, the state accepted this appraisal of Ms. Deano and deposited the sum of $102,032.00 into the Registry of the Court.

The landowners had the property appraised by two experts, Mr. Fred Guice and Mr. J. Bradley Oubre. Both Mr. Guice and Mr. Oubre testified that the best and highest use of the northernmost tract was commercial, light industrial development and that the best and highest use of the middle tract was residential developmental. They both testified that development was not speculative (that it was believed at the time of the taking that the development would occur within ten years).

Mr. Guice appraised the property taken at $40,000.00. He found that severance damages to the remainder of the property valued at $676,756.00. Mr. Guice also found that actions of the state caused the property to be taken out of commerce prior to the taking and he evaluated these damages at. $564,728.00. He testified that the landowner was damaged in the amount of $1,505,000.00.

[97-244 La.App. 5 Cir. 7] Mr. Oubre testified that the value of the land taken was $43,995.00; severance damages to the remaining property was $841,929.00; and that delay damages were valued at $586,409.00, for a total amount of $1,472,333.00.

After trial on the merits, the jury found that the value of the property taken was $30,000.00; that severance damages to the remainder of the property was $100,000.00; and that delay damages were valued at $0.00, for a total verdict award of $130,000.00.

TRIAL JUDGE'S REASONS FOR JUDGMENT

Prior to the rendition of the judgment granting the JNOV, counsel for defendant, Christina, submitted to the trial judge proposed "reasons for judgment," which he had prepared and which were adopted by the trial judge virtually in toto and without change. Appellant objects to this practice or action, and requests that this Court give no value to these reasons by plaintiff's counsel that were signed by the trial judge.

We believe that the better course by far is for a trial judge to author any reasons for judgment himself, thereby giving us the benefits of his thoughts and his insights into the litigation under consideration. This is especially true in a case such as this because the reasons for judgment authored by defendant's counsel, which were accepted and used by the trial judge as his reasons for judgment, overturn a jury verdict which was very unfavorable for the client of the counsel that authored those reasons. [97-244 La.App. 5 Cir. 8] However, we are...