State of Louisiana, Department of Transportation & Development VS David C. Henderson and Diane Doyle Henderson
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2212 STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT VERSUS DAVID C HENDERSON AND DIANE DOYLE HENDERSON Judgment Rendered G MAY 7 2010 On Appeal from the Twenty Judicial District Court First In and for the Parish of Livingston State of Louisiana Docket No 104247 Honorable M Douglas Hughes Judge Presiding Alicia E Wheeler Counsel for PlaintiffAppellant Carl B Duke Department of Transportation and Development Baton Rouge Louisiana James Bradford Covington Louisiana D Stephen Brouillette S Bradley Rhorer V Katherine CrumbyNance Counsel for DefendantsAppellees Jason S Mickenhiem Doyle Henderson David C Henderson and Diane Julie J Baxter Baton Rouge Louisiana BEFORE DOWNING GAIDRY AND McCLENDON JJ McCLENDON J Plaintiff the Louisiana Department of Transportation and Development DOTD appeals a judgment granting partial summary judgment in favor of the defendants David and Dianne Henderson the Henderson For the reasons that follow we conclude that the certification of the judgment as final and appealable pursuant to LSA C art 1915 was improper and we dismiss P 8 the appeal FACTS AND PROCEDURAL HISTORY In 2004 DOTD sought to purchase three parcels of land from the Hendersons to build the Juban RoadInterstate 12 interchange in Livingston Parish Because no agreement could be reached between the parties on June 15 2004 DOTD filed a Petition for Expropriation pursuant to LSAR 48 et S 441 seq In compliance with LSAR 48 DOTD also deposited 288 S 442 00 834 into the registry of the court reflecting its Estimate of Compensation for the value of the Hendersons land On June 15 2004 the court signed an Order of Expropriation giving DOTD title to the three parcels of land On June 29 2004 the Hendersons pursuant to LSAR 48 S 449 withdrew the amount DOTD deposited with the court On May 16 2008 DOTD filed its Notice of Acceptance indicating that the state had accepted the highway project for which it took the Hendersons land In response on July 31 2008 the Hendersons filed an answer asking for additional compensation above the amount of the deposit See LSAR 48 S 450 B The parties then engaged in discovery wherein DOTD avers it learned that the Hendersons land could possibly be wetlands DOTD in a February 26 2009 letter to the Hendersons indicated that it would be prepared to request a jurisdictional determination on the Hendersons entire parent tract as we believe a wetlands determination and any resulting mitigation requirements will have significant impact on the before and aftervalue of the property DOTD further indicated that in the event there is any determination the property svalue is less than initially estimated by our appraisers we will seek a return of any amount 2 we determine has been paid in excess of the actual fair market value of the property which DOTD estimated would be at least 96 00 100 On May 15 2009 the Hendersons filed a Motion for Partial Summary Judgment asserting that DOTD cannot recover any money deposited and already paid to the Hendersons in excess of the fair market value of the expropriated property Following a hearing the trial court granted the Hendersons motion finding that DOTD has no legal authority to recover excess funds from either the registry of the court or the Hendersons should DOTD prove an amount of just compensation less than the estimate originally deposited in conjunction with the Petition for Expropriation The trial court signed a judgment reflecting its ruling in open court on July 27 2009 DOTD has appealed the trial court judgment s On appeal DOTD asserts that the trial court erred in granting the Hendersons motion for partial summary judgment thereby prohibiting DOTD from recovering funds originally deposited in the registry but ultimately determined to be in excess of just compensation PROPRIETY OF APPEAL The trial court July 27 2009 judgment is clearly a partial judgment As s such this court must consider whether this partial judgment is a final judgment for purposes of immediate appeal See LSAC art 2083 and McGehee v P C City Parish of East Baton Rouge 00 1058 p 3 La 1 Cir 9 809 App 01 12 2d So 258 260 Appellate courts have the duty to examine subject matter jurisdiction sua sponte even when the parties do not raise the issue Whether a partial judgment is immediately appealable is determined by examining the requirements set forth in LSAC art 1915 Article 1915 provides that P C 1 6 hen w a court renders a partial judgment or partial summary judgment as to one or more but less than all the claims demands issues or theories the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay Emphasis supplied 3 This provision attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties R J Messinger Inc v Rosenblum 041664 p 13 La 3 894 So 1113 05 2 2d 1122 The trial court after having expressly determined there was no just reason for delay certified its judgment as final pursuant to LSAC art P C 1 8 1915 Because the trial court gave no explicit reasons for its determination that no just reason for delay existed we must make a de novo determination of whether the designation is proper See R Messinger Inc 041664 at pp J 1314 894 So at 1122 2d In conducting this review we consider the overriding inquiry of whether there is no just reason for delay as well as the other non exclusive criteria trial courts should use in making the determination of whether certification is appropriate which include 1 the relationship between the adjudicated and the unadjudicated claims 2 the possibility that the need for review might or might not be mooted by future developments in the district court 3 the possibility that the reviewing court might be obliged to consider the same issue a second time and 4 miscellaneous facts such as delay economic and solvency considerations shortening the time of trial frivolity of competing claims expense and the like Id 20041664 at p 14 894 So at 2d 112223 Despite any ruling on the merits at this time plaintiffs will present evidence in an attempt to show that they are entitled to more compensation than DOTD originally deposited into the registry of the court Similarly even if we were to conclude that DOTD cannot recover an excess deposit nothing precludes DOTD in an effort to prevent the Hendersons from obtaining a judgment of deficiency against it from presenting evidence to show that the appropriate measure of compensation is less than the amount it originally deposited into the registry of the court As such it appears that any ruling on appeal at this point will not shorten the time of trial cause undue delay or needlessly increase the cost of litigation 2 More importantly if it is later determined that the measure of compensation to which the Hendersons are entitled is equal to or greater than the amount DOTD deposited into the registry of the court DOTD would not be entitled to a refund and this issue would become moot Based on our de novo review we conclude that the trial court s certification of the judgment under LSAC art 1915 was improper P C 1 B Accordingly we pretermit review of the merits of DOTUs appeal DECREE Because the trial court improperly designated the partial summary judgment rendered herein as a final judgment pursuant to LSA C art P B 1915 we dismiss the appeal for lack of appellate jurisdiction The case is remanded to the trial court for proceedings consistent with this ruling Assessment of appeal costs shall await final disposition of this matter APPEAL DISMISSED MATTER REMANDED We also note that a partial summary judgment does not constitute a final judgment for purposes of appeal and thus may be revised by the trial court at any time prior to the rendition of the judgment adjudicating all issues and claims LSAC art 1915 and Gold Dust P C 2 8 Graphics Inc v Diez 06 0323 p 7 La 1 Cir 12 951 So 270 274 App 06 28 2d 5
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