Pipeline Technology VI, L.L.C. VS Don L. Ristroph
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 1210 PIPELINE TECHNOLOGY VI LLC VERSUS DON L RISTROPH Judgment rendered On Appeal from the AY 2 zooe 18th Judicial District Court Parish of Iberville State of Louisiana Case Number 63573 Division D If The Honorable William C f J James P Dore Linda S Akchin Baton Rouge Kirk A Patrick III Rouge l kul Counsel for PlaintiffAppellee Pipeline Technology VI LLC LA David F Zuber Baton Dupont Judge Presiding Counsel for Defendant Appellant Don L Ristroph LA J BEFORE I2AJCtIs PARRO KUHN AND DOWNING JJ DOWNING J This is action instituted appeal I attorney s by a fees s 2 prior reasons landowner s to and 3 trial affirm the trial some an expropriation three issues are two excluding court court of the erred in For the expert witness fees s on award the landowner whether the trial claim for attorney fees excluded and denied his claim for to erred in court of the landowner we failing erred in court whether the trial some following There private pipeline company witnesses award to landowner who defeated a whether the trial landowner failing appeal by an that denied the judgment of his expert witnesses two expert witness fees FACTS AND PROCEDURAL HISTORY Don L thwarted Pipeline Technology servitude across his property motion in limine on Mr Ristroph was s VI LLC to lay fees to tax costs the trial claimed prior costs to Ristroph signed accordingly s The trial trial of Mr court Ristroph Both Mr s by court court appeal all defenses and to the filed was granted and only Mr appeal Ristroph Ristroph costs Ristroph and dismiss its rights At prejudice s he had s PTVI on by 2 testify was Ristroph hearing on a claim for attorney paid to to the experts award the total Judgment 12 2008 Ristroph appeal remains to was appealed the judgment February Mr a a trial PTVI s A bench trial other expert witnesses to to scheduled court also declined PTVI however moved expropriate ruled in favor of Mr denied Mr claim for to Prior were the trial action with expropriation It also denied Mr excluded pipeline granted and two experts who held November 28 30 2006 the trial motion lawsuit PTVI s benzene a behalf were excluded and dismissed PTVI s successfully the defendant appellant landowner Ristroph reserving The dismissal DISCUSSION FAILURE TO A WARD ATTORNEY FEES In Mr court Ristroph erred in assignment of to award attorney fees 2 pursuant failing 19 201 and La R S first s to La he error on I grounds two Const Art I S that the trial alleges pursuant to 4 Statutorv Provision for Attorney Fees Under Louisiana law authorized La statute pertinent a such fees are not by or statute or contract 882 instituted Thus unless Mr an p Ristroph 5 can award of attorney fees awardable provides as follows by having jurisdiction of a proceeding State of Louisiana a parish a municipality the encv Lal of any of them to expropriation shall award the such real court 06 2072 of Louisiana court or Albrecht v providing for Louisiana Revised Statute 19 201 A allowed except where not are Smith contract 965 So 2d 879 I Cir 6 8 07 App show by attorney fees acquire owner vested reimburse such the power of real property by expropriation right or title to or interest in as will in the opinion of the of any property such with sum for his reasonable owner incurred attorney the because of expropriation actually proceeding if the final judgment is that the plaintiff cannot acquire the real property by expropriation or ifthe proceeding is abandoned by the plaintiff Any such award shall be paid from fees the same funds from which the would have been purchase price of the property paid of the landowner herein fixed are in addition to any other rights he may have under the Constitution of Louisiana The rights Emphasis Mr added Ristroph argues that La R S be awarded attorney fees PTVI the became an The upon a authority to of Mr private entity statutory authority to delegated to He contends that when Louisiana expropriate private property which it exercised it agent of the crux 19 201 is his state and under the Ristroph such as s statute argument is that when Louisiana conferred PTVI 3 the power to take private land an relationship agency statute was thereby allowing created which puts entities like PTVI within the award of attorney fees an contends that if he could show that PTVI is the statute Ristroph cites I Trapping Co Monsanto Company as an agency within the 248 La 2 agency under La The federal court Louisiana law 49 for in as an relationship RS 2001 with the state 23 vested with the 19 Mongrue stated that for the taking does seem to by the imply a attorney fees of agency nor was agent or it decided generic common was not law must agency is defined implied contract or 2 to to by law as was a Mr qualifies now expropriation expropriate court not have been s opinion when the about an an agency individual s Mongrue holding Dictionary fiduciary relationship created by party the agent may in its 8th ed express act Supreme Court stated that the only way is when it has been vested with this power by the state In a on 4 or behalf private entity power ofeminent domain must have been expressly The legislature listed specific categories of private entities that may expropriate property under s takings clause Constitution to Moreover discussion 67 one state right Law s out relationship agency In Black in which expressly Ristroph uses the term Mongrlle the U S Sth Circuit recognized that the delegated by the sovereign to the private entity 3 PTVI although dicta taken private entity a In Tennessee Cas Transmission tile Louisiana obtains the power v 249 F 3d at 429 court the basis of the meaning 2004 1 Mongrue authority for the power of by a Louisiana court presenting his argument In Mongrue Mongrue however created as Violet v private entity to qualify under entity that in that delegated expropriation authority was of agent of the government for the purposes of establishing This statement made context and 1965 5th Cir 249 F 3d 422 429 unconstitutional an So 2d 425 176 delegated the power of eminent domain Mongrue of Ristroph meaning Gas Transmission Co Tennessee that because of this liability Mr he could prove his entitlement to an attorney fee award Mr premise an Thus our of another party Louisiana civil law actions mandate as a the person by which no to transact contract suggests that PTVI any ofthe other the types of affairs state on and PTVI The nothing in that private entities with statute refers to statute power to the state subdivisions created for the purpose of powers in La RS 19 private entity to common entities do not carrier are it then pipelines in La RS listed the agents or 1977 It why a when the or an the legislature agents of the political corporations any state or governmental describes each other type of is expropriate v granted Because these including types of private LeDoux 347 So 2d 4 7 19 201 allows is reason was not entitled attorney fees actually agency of any of them legislature for whatever expropriate exercising 19 2 8 s are not and Appeal succinctly explained in Louisiana expropriating authority municipality Constitution our agencies of any governmental body Corporation La RS or suggests that by delineating its or similarly situated landowner explained that principal in the record implication is that these entities The Third Circuit Court of Intrastate Gas to under thereby become separately which the power separately become 1 2 another described in La RS 19 20 I somehow intended all of these entities to state on behalf of the State of Louisiana expropriate property may Nothing of terms mandate affairs for the more or legislature listed specific categories of the Louisiana However clause or one governmental bodies private entities that generally speaks in principal confers authority between the transacts 19 2 In La person the a mandatary Here there is however Louisiana Civil Code article 2989 defines not agency contract takings principal and bind that other party by words the Id to the The La to App 3 Cir attorney fees the landowner parish a explained that the state court a limited recovery of attorney fees 5 only to a successful or its was not litigant only if the political subdivisions and agencies powerless to extend the statute Id included within its scope entity with powers to set out in the discuss a state provisions a Therefore parish a of La RS and LeDoux note no subject not state case or an not Mr Property that the to compensated extend to constitutional right agency Section 4 B a to Mr to the full statute and apply Ristroph the attorney fees extent set statute S 4 entitled of his loss compensated be reimbursed for his He claims mandates that for his losses means Right to including that he has litigation expenses damaged by any private entity authorized by law to expropriate except for a public and necessary purpose and with just compensation paid to the owner in such proceedings whether the purpose is public and necessary shall be a judicial question In every expropriation a party has the right to trial by jury to determine compensation not not holding in provides in pertinent part the following Property shall or directly private entity make the can Ristroph contends that this phrase to not attorney fee reimbursement he the winner of this lawsuit must be Mr did We agree with the that La Const Art I guarantees his right attorney fees municipality Attornev Fees Ristroph next argues phrase a court here is forth in La R S 19 201 PTVI does not fit within the Constitutional Entitlement penalty provisions agency of any of them hence the apply of the word to parish private a state agency municipality powerless a the to it expropriators certainly implies that it did expropriating authority 19 201 do to court as a in LeDoux held that that the LeDoux ruling ofthe straining we are court the state brought by It commented that the not private entity was a As in LeDoux the the We but the agency consider that Id was was was provisions by analogy s The expropriate since it statute any agency of them not expropriation action be taken or 6 a owner shall be Emphasis added and the loss This issue expressed no also raised was opinion compensated to as result of the there that when Article I deals with the extent 4 was owner of his loss dealt read in a his specifically court 4 of the 1974 Constitution S successful not taking apply n 2 to the The damaging or case court because explained with La RS 19 9 which conjunction in which property is valued for the purpose of it becomes apparent that the only with to the phrase full taken by situation when the property is a Neither in LeDoux Id expropriation S of extent of but the 347 So 2d at 7 LeDoux manner compensating the event since the article did taking taking was no LeDoux whether Article I authorized attorney fees in the as a 10 full to the A law review article written nor in this by Professor case was Lee there taking a Hargrave entitled The Declaration of Rights of the Louisiana Constitution in 35 La Law Rev 15 18 detailed the 1974 1975 through revisions history of how Article I S 4 evolved the Constitutional Convention into its final form at Pertinent excerpts of the article read as follows history of Section 4 reveals a desire to increase the level of compensation beyond that provided by existing state law The change from the 1921 Constitution s language just and adequate compensation to the new phrase compensated was deliberate to the full extent of his loss prompted by a belief on the part of the sponsors that inadequate awards have The new formula comes been provided under existing law The from the 1972 Montana Constitution committee in whose comments as and intended to was stated change is far reaching The Delegate Louis you are hiring Jenkins indicated litigation going an attempt the owner taken to remain in equivalent circumstances after the taking This level of compensation applies in every expropriation public agencies or private persons costs of the permit by has been property financial and to lose it would attorney fees A nd even even because of the cost of take into account that fact 7 whether by Explaining his proposal attorney which you ll have to 1 to extend to if you win going to court pay So this would The author too was insistent using the on the loss term extent of his loss rather than indicate that consideration be given to an owner s subjective intangible losses rather than only to objective to determinations The words t he full extent of his loss were in the original committee proposal and were continued in the final compromise Explaining the impact of the compromise the author Walter Lanier indicated that the Delegate breadth of the formula was to be continued original He referred also to things which perhaps in the past may have been considered damnum absque injuria such as the cost of removal and things like that The debate also indicates an formula would cover moving costs establishing point the a understanding that and the cost of the re premises had been taken At one adopted an amendment requiring business whose convention consideration of loss of aesthetic or historical values in locating public projects Though this provision was not included in the final compromise language it again displays the breadth of the Giving the people more rights in this regard provision certainly tends the aim was confirm to compensation circumstances In any event the convention debate committee s the concept of full putting as after in one the taking equivalent financial including items doubt this provision not will existing law No but it is clear that the level of spawn much litigation expropriation awards must be expanded to include moving expenses business losses because of change of location and compensation for some intangible losses not covered under prior law Acceptance of such a radical and expensive concept in the state s law may be partly explained by the experience of many of the delegates under recent federal legislation which had greatly increased the required payments in case of expropriations paid with federal funds compensable under Changing the justification the existing for exercise of the eminent language for to a higher purposes of public utility standard a public and necessary purpose provoked intense It was only resolved by the final compromise controversy provision which applied the higher standard to takings by domain power from public purposes and private entities public agencies constitutional but continued the old standard to takings by into court for his benefit was not meant to restrict the class of persons who could claim compensation to owners in a technical property Reference to payment to the owner or The purpose was to give citizens more rights and the term as stated by the author of the final compromise is intended to be used in its broadest sense in other words a law sense leasehold interest in land is know fact and there when one s been a some couples you and I well In that in the past property right trouble over this intent with the 8 as requirement that compensation be to the full extent of one s loss the purpose emerges of giving protection to a broader category of persons by referring to property taken or damaged compensation must be given not only when ownership or a real right is taken but also when property is damaged Footnotes omitted and emphasis added than was previously the It is unclear whether suggested proposed or he defeated having that It is also clear that case Delegate Louis a was to We property his loss defeat this cannot attorney fees if speculation is fees only provides attorney Ristroph has incurred private pipeline entity award Mr comments to the taken The record reflects that Mr attorney fees to However this expropriated his property landowner whose property Jenkins landowner would be entitled since the final version unnecessary Woody that tried Ristroph compensation pursuant to Article I S 4 since there was no 150 000 in over to expropriate his to the full extent of Thus this taking assignment of error is without merit EXCLUSION OF EXPERT WITNESSES In Mr court Scott erred Ristroph as to the that PTVI put the safety public testified that pipeline safety to at of the was pipeline would the trial court not erred to impact one of PTVI s testimony barge He argues designated Thomas Orlofsky of the He claims that Mr primary aptly demonstrate that promote the health or 9 the to was proposed safety of the public by not allowing these experts to testify on testify Orlofsky purposes served contradict this issue he to benzene proposed of benzene via expropriation Ristroph argues that retain certain experts He contends that their transportation issue when it purpose safety Mr and economic the he argues that the trial error by excluding the testimony of Christopher and John Theriot with respect pipeline assignment of of law matter Chad Scott pertained as to a next s by the forced to benzene He argues that this issue The decision of whether left on admit to or exclude expert considerable discretion of the trial to the in the absence of appeal Insurance 474 477 The trial court and will abuse of that discretion an 04 0319 Company court plainly p 3 La not Moory transcript that standpoint it considered the witnesses testimony one be disturbed Allstate v 1 Cir 2 11 05 App stated in the testimony is 906 So 2d from a relevance It also stated unnecessary that testimony regarding how efficiently and safely barge traffic operated was not the issue for the about the relative A trial expeditious La C C P witness 938 not art 702 2d So particularly control the proceedings Sims v a trial so an orderly justice is done 1D that admissibility of a Ward 05 0278 p 16 La App 1 Cir 6 9 06 These witnesses testimony Accordingly abuse its discretion in concerned barge operations This discretion includes the of this lawsuit these witnesses versus it was conducting to 1631 711 Nor discretion in and manner decide of pipeline court has testimony s outcome safety court to granting we was to the court did pertinent not conclude that the trial PTVI s motion in limine and excluding testimony This assignment of error is without merit FULL AMOUNT OFEXPERT FEES Mr erred in Ristroph assignment of error that the trial argues in his final denying the full amount of expenses he incurred in retaining experts including those whose testimony trial He argues that he incurred successfully defend his argues that this case case involved 54 569 27 in but he was chemical costs excluded to for his experts to 16 381 62 He complex issues with regard appraisal to and T SCREEN air 10 expropriation in the industrial Other witnesses testified about environmental engineering transportation faith in prior only awarded One witness testified in the field of real estate corridor was good court kinodynamics modeling Mr Ristroph that a contends that the great deal of time the other experts and The trial La 1 Cir App 1 11 08 After we spent preparing for trial in collaboration with has discretion to assess costs State Farm Mut Auto v 8 29 07 972 So 2d 1168 of discretion PTVI was warrants 970 So 2d 564 On appellate reversal ofthe trial reviewing the facts of this find no their bills demonstrates individually court Rideau manner paperwork accompanying 581 of Ins suit in any a Co 06 0894 writ denied only a court cost allocation case La showing of an abuse and the expert abuse of discretion in the trial 19 p 07 2228 review s equitable court s Id costs not taxed allocation to This assignment of error is without merit DECREE Based The costs on of this the foregoing the judgment of the trial appeal are assessed court against Pipeline Technology AFFIRMED 11 is affirmed VI LLC
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