State of La., Thru Dotd v. Paul Henry Wagner

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-644

STATE OF LOUISIANA, DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT

VERSUS

PAUL HENRY WAGNER

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 34,960
HONORABLE J.P. MAUFFRAY, JR., DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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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

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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.

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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

specifically did not include the cost of moving the sewage line. Finding error in the

jury’s decision to award only part of the proven amount of damages, we increase the

economic damages awarded to Wagner to $129,291.50.

In this appeal, Wagner also requests an increase in the amount of attorney fees

awarded by the trial court, as well as additional attorney fees for work done pursuant

to this appeal. As Wagner’s appellate efforts have been successful, we find he is

entitled to the relief sought. We hereby increase attorney fees to 25% of $129,291.50,

and we award $5,000.00 for work performed pursuant to this appeal

For the above and foregoing reasons, the judgment of the trial court is amended

so as to increase the award of damages to $129,291.50, increase the award of attorney

fees to 25% of $129,291.50, and award $5,000.00 in additional fees for work done

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on appeal. As so amended, the judgment is hereby affirmed. Costs of the appeal are

assessed to DOTD, specified as $3,200.70.

AFFIRMED AS AMENDED.

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