Acadian Gas Pipeline Sys. v. McMickens
Decision Date | 28 December 2018 |
Docket Number | 18-337 |
Citation | 263 So.3d 524 |
Parties | ACADIAN GAS PIPELINE SYSTEM v. Oliver Liecht MCMICKENS, et al. |
Court | Court of Appeal of Louisiana — District of US |
John M. Wilson, Kelly Brechtel Becker, Katherine Seegers Roth, Jaclyn E. Hickman, Liskow & Lewis, 701 Poydras Street, Suite 5000, New Orleans, LA 70139-5099 (504) 581-7979, COUNSEL FOR PLAINTIFF/APPELLANT: Acadian Gas Pipeline System
H. Brenner Sadler, Provosty, Sadler, deLaunay, APC, P. O. Drawer 13530, Alexandria, LA 71315-3530, (318) 445-3631, COUNSEL FOR DEFENDANTS/APPELLEES: Oliver Liecht McMickens, Ricky Loren McMickens, Mark R. McMickens, Neal L. McMickens, Scott A. McMickens
Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.
In this expropriation litigation, the plaintiff, Acadian Gas Pipeline System, appeals from the trial court judgment in favor of the defendant landowners, denying its expropriation of a right-of-passage servitude through the landowners' property. For the following reasons, we affirm.
On October 10, 2016, the plaintiff, Acadian Gas Pipeline System (Acadian), filed suit, seeking to acquire a perpetual servitude, in the form of a non-exclusive right-of-passage, across a 1,405-acre tract of land owned by the Defendants, Oliver Liecht McMickens, Ricky Loren McMickens, Mark R. McMickens, Neal L. McMickens, and Scott A. McMickens (referred to collectively as "the Defendants"). The property is located in Rapides Parish, just outside of Alexandria, Louisiana. The purpose of the servitude is to provide Acadian with access to and from its pipeline, which runs from east to west across the southernmost portion of the Defendants' property.
Following a March 16, 2017 bench trial, the trial court took the matter under advisement, then on August 31, 2017, it issued written reasons for ruling and signed a judgment denying Acadian's expropriation request. Notice of judgment was mailed to the parties on September 1, 2017. On September 12, 2017, Acadian filed a motion for new trial. The next day, the trial court wrote the word "Denied" diagonally across the proposed show-cause order and included the notation, "written reasons given," apparently to indicate that it had issued written reasons for its August 31, 2017 judgment. No hearing was held on the motion for new trial, and no written reasons regarding the motion appear in the appellate record. Subsequently, a hearing was held to address issues involving costs and attorney fees, and those issues were disposed of in a judgment rendered on October 30, 2017. That same day, Acadian filed a motion to appeal the trial court's August 31, 2017 judgment.
On January 31, 2018, this court issued a rule for Acadian to show cause why its appeal should not be dismissed as being premature. Thereafter, we dismissed Acadian's appeal, finding:
[T]he notation "Denied" written on the rule to show cause order does not constitute a valid judgment. Since the trial court did not conduct a hearing or sign a judgment properly disposing of the motion for new trial, we find that the appeal order signed on October 30, 2017, was premature and that the trial court was not divested of its jurisdiction. Having concluded that we lack jurisdiction over this appeal, we find that the appeal must be dismissed and remanded to the trial court for consideration of Plaintiff's motion for new trial.
On remand, Acadian moved for a judgment denying its motion for new trial, after which the trial court rendered a judgment denying the motion on February 9, 2018. Thereafter, Acadian again filed a motion to appeal the trial court's August 31, 2017 judgment.
On appeal, Acadian raises three assignments of error committed by the trial court:
In response to this appeal, the Defendants filed a motion to strike and for a partial dismissal of Acadian's appeal, arguing that the issue of compensation due to the Defendants was not properly before this court since no judgment was rendered on that issue by the trial court. Acadian opposed this motion, and the matter was referred to the merits of the appeal.
"Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property." La.Const. art. 1, § 4 (A). However, private property is subject to expropriation by a public entity when it is needed "for public purposes" and when just compensation is paid to the owner. La.Const. art. 1, § 4 (B)(1). Private entities, when authorized by law, are also entitled to expropriate private property, such as in the case of Acadian, which was created for the purpose of building a pipeline to supply natural gas to the public. La.Const. art. 1 § 4 (B)(4); La.R.S. 19:2(5). "[W]hether the purpose" of the expropriation is "public and necessary" is a determination made by the trial court, which finding will not be reversed absent manifest error. La.Const. art. 1, § 4 (B)(5); Lafayette City-Parish Consol. Gov't v. Person , 12-307 (La. 10/16/12), 100 So.3d 293.
The law applicable to expropriation by a private entity was addressed by the supreme court in Exxon Mobil Pipeline Co. v. Union Pacific Railroad Co. , 09-1629, pp. 12-13 (La. 3/16/10), 35 So.3d 192, 200, wherein it stated:
In Calcasieu-Cameron Hospital Service District v. Fontenot , 628 So.2d 75, 78-79 (La.App. 3 Cir. 1993), writ denied , 94-168 (La. 3/18/94), 634 So.2d 854, this court further explained:
[T]he extent and location of the property to be expropriated are within the sound discretion of the body possessing the power of eminent domain, and these determinations will not be interfered with by the courts if made in good faith. Greater Baton Rouge Port Comm'n. v. Watson , [224 La. 136, 68 So.2d 901 (1953) ] ; Board of Comm'rs. of Tensas Basin Levee Dist. v. Franklin , 219 La. 859, 54 So.2d 125 (1951) ; Evangeline Parish Police Jury v. Deville , [247 So.2d 258 (La.App. 3d Cir.1971) ]. Questions such as the location of the expropriation, the extent of the property taken, the nature of the title to be taken, and the wisdom of pursuing the particular improvement project relate to the necessity of the taking. The standard is whether the expropriator, in selecting the location and extent of the property to be expropriated, acted in bad faith or so capriciously or arbitrarily that its action was without an adequate determining principle or was unreasoned. Criteria to be considered by the expropriator include the availability of an alternate route, costs, environmental factors, long-range area planning,...
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Lafayette City-Parish Consol. Gov't v. Bendel P'ship
...and capriciously. Est. of Griffin, 669 So.2d at 570. Further, in Acadian Gas Pipeline Sys. v. McMickens, 18-337, p. 26 (La.App. 3 Cir. 12/28/18), 263 So.3d 524, 540, this court found that the expropriating party acted arbitrarily, capriciously, and in bad faith where "much of the testimony ......
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Lafayette City-Parish Consol. Gov't v. Bendel P'ship
...Est. of Griffin, 669 So.2d at 570. Further, in Acadian Gas Pipeline Sys. v. McMickens, 18-337, p. 26 (La.App. 3 Cir. 12/28/18), 263 So.3d 524, 540, this court found that the expropriating party acted arbitrarily, capriciously, and in bad faith where "much of the testimony . . . was self-ser......