City of Baton Rouge and Parish of East Baton Rouge VS F & K Investments, LLC
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0501 CITY OF BATON ROUGE AND PARISH OF EAST BATON ROUGE VERSUS F K INVESTMENTS LLC DATE OF JUDGMENT NOU 0 1 2013 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NIJMBER 569 SEC 8 PARISH OF EAST BATON ROUGE 079 STATE OF LOUISIANA HONORABLE WILSON FIELDS JUDGE Aubin Leo J D Counsel for Plaintiffs Appellees Baton City of Baton Rouge and Parish Rouge Louisiana of East Baton Rouge Robert T Counsel for Defendants Appellants Baton F K Investments LLC C Farrell S C Fruge Jr D APDC Talley Rouge Louisiana Farrell Fruge Jr Individually BEFORE KtIHN HIGGINBOTHAM AND THERIOT JJ Disposition REVERSED IN PART AMENDED AND AS AMENDED AFFIRMED IN PART H REMANDED WTI ORDER I KU J appellant K Defendant F Investments LLC F and intervenors K appellants C Farrell Fruge Jr D APDC Fruge APDC and C Farrell Fruge S Jr individually Fruge appeal the trial court judgment which dismisses as s untimely their claims for the measure of compensation to which each is entitled as a result of the acquisition of their property by plaintiffs the City of Baton appellees Rouge and Parish of East Baton Rouge City for a public purpose We Parish reverse in part affirm as amended in part and remand FACTUAL AND PROCEDURAL BACKGROUND On 7uly 22 2008 the City filed a petition naming F as a defendant Parish K which averred that for the purpose of street construction it was necessary to acquire a tract of land taken from a larger tract in the Coursey Village subdivision believed to be owned by F Alleging that a reasonable price could not be agreed upon the K Parish City estimated just compensation On July 24 2008 the trial court signed an order directing the deposit of 00 778 54 the highest estimate of the amount of just compensation into the court s registry and the surrender of the described property by F to the City On K Parish November 26 2009 the City filed into the record a notice of acceptance of Parish work dated September 10 2009 K F answered the lawsuit on June 26 2012 Additionally F joined by K Fruge APDC and Fruge asserted claims of entitlement to additional compensation as The property is described as Parcel 1 being a certain parcel or tract of land taken from a 7 larger tract said larger tract being designated as Lot 1 Coursey Village Subdivision East Baton Rouge Parish Louisiana said Parcel 7 1 being more particularly shown on a map recorded at Original 547 Bundle 12057 in the office of the Clerk of Court The City described Parish improvements on or in the property it sought to acquire as concrete paving concrete curbing two concrete parking bumpers as well as gas water and sewer laterals 2 Additionally the City averred that it had provided or attempted to provide the owner of Parish the property the name and qualifications of the persons who prepared the estimate of just compensation the methods of determining the estimates as well as the amounts of those esrimates prior to filing the petition 2 a result of the City acquisition of the subject property collectively alleging s Parish that they had engaged in the delivery of professional dental services to the public and had operated exclusively at the same location since 1986 They averred that prior to the acquisition of the property by the City they had made extensive plans Parish to add an additional associate dentist expending in excess of 250 in 00 000 improvements and projected an increase in net income in excess of 1 00 000 500 Collectively F Fruge APDC and Fruge claimed that the additional dentist could K not be accommodated due to loss of parking and sought reimbursement of those amounts or alternativeiy sought those same amounts for a replacement facility plus moving costs They also requested attomey and expert fees interest and costs In response the City filed motions to dismiss one directed at F Parish K averred that its claim for additional compensation was untimely and the other directed at Fruge APDC and Fruge urged that these parties had no rights or causes of acrion relative to the property and that their claims were untimely asserted After a hearing the trial court granted both motions and dismissed all claims as having been untimely asserted F Fruge APDC and Fruge have appealed K TIMELINESS OF FCLAIM S K La R 48 contained in the chapter setting forth authority to S 450B expropriate and acquire property prior to judgment commonly referred to as quick taking provides in relevant part Where a portion of a lot block or tract of land is expropriated any defendant may apply for a trial to determine the measure of compensation to which he is entitled provided i He files an answer within one year from the date he is served in the same manner provided for service of the petition with a copy of the Ciry notice of acceptance which has been filed with the s Parish clerk of court of the parish in which the action is pending declaring that it has finally accepted the construction of the highway project for which the property was expropriated provided however that he may file his answer at any time prior thereto 3 2 His answer sets forth the amount he claims including the value of each parcel expropriated and the amount he claims as damages to the remainder ofhis property 3 His damage claim is reasonably itemized 4 His answer has a certificate thereon showing that a copy thereof has been served personally or by mail on all parties to the suit who have not joined in the answer Urging that the one time frame is a prescriptive period the City year Parish asserts that F answer filed on June 26 2012 well over a year after it was s K served with the notice of acceptance was untimely Thus the City contends Parish K F has waived its right to challenge the amount of just compensation We disagree La R 48 provides S 452 If a defendant fails to file his answer timely the City Parish sha11 thereafter give affirmative notice by certified mail to such defendant of the pendency uf the proceedings If an answer is not filed within ten days after the date on which such notice is mailed the court shall render final judgment fi just compensation in the amount ng deposited into the registry of court and awarding that sum to the defendant The record does not contain an affirmative notice sent by certified mail from the Ciry to F and the City does not maintain that it ever sent one Parish K Parish Thus under an application ofthe plain language ofLa R 48 F answer is S 452 K s timely since it has until the expiration of ten days after the date the affirmative notice was mailed to file its answer The City contends that interpretation of La R 48 in such a Parish S 452 manner nullifies the wording of La R 48 Instead the City S 450B 1 Parish suggests that the provisions of La R 48 apply in instances where the S 452 expropriating authority has sued more than one defendant and that the answer filed 3 Although the le expressly provides ataking mechanism for expropriation by islation quick the Department of Transportation and Development see La R 48 a political subdivision S 441 is also entitled to utilize the quick taking procedure pursuant to the Local Services Law R S 1321 33 1337 City ofBaton Rouge u Johnca Properties L 2000 La 6 794 C 2524 Ol 1 2d So 766 772 73 4 after the affirmative notice permits a defendant to contest the percentage of just compensation which may be collected by that defendant The courts adhere to the established principles of statutory construction which begin with the language of the statute itself The paramount consideration in interpreting a statute is ascertaining the legislature intent and the reasons that s prompted the legislature to enact the law Laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject Int l Paper Co InG u Hilton 2007 La 10 966 So 545 558 0290 07 16 2d We find no conflict between the provisions of La R 48 and those of La S 450 S 452 R 48 Prior to its amendment La Acts 1976 No 391 La R 48 S 452 provided Upon failure of the defendant to answer within the times prescribed by Section 450 or Section 451 of this Part as the case may be judgment by default may be entered against him This judgment must be confirmed as in other civil suits and notwithstanding the periods within which answer is to be filed as prescribed by Section 450 or Section 451 the defendant may file his answer at any time prior to the confirmation of a default judgment against him In arder to confirm a default it shall not be necessary for the expropriating authority to take the testimony of its appraisers but in lieu thereof their appraisal reports shall be filed in evidence and shall constitute prima facie proof of the compensation due defendant After the answer has been filed in accordance with this Section or Sections 450 or 451 the expropriating authority may fix the case for trial and the clerk of court shall thereupon issue a notice to each defendant of the time fixed for the trial This notice shall be served at least twenty days before the time fixed for trial and in the same manner provided for the service of citations See State Through Dep Highways u Baudy 252 So 553 554 La App 4th tof 2d Cir writ refused 259 La 1048 254 So 461 La 1971 2d The present version of La R 48 is a streamlined version of the earlier S 452 express default judgment procedure through the implementation of an affirmative duty on the expropriating authority to provide a property owner with fmal notice of his constitutional right to compensation to the full extent of his loss See La Const 5 Art I 4 in every expropriation or action to take property the owner shall be 5 B compensated to the full extent of his loss Except as otherwise provided in the Constitution the full extent of loss shall include but not be limited to the appraised value of the property and all costs of relocation inconvenience and any other damages actually incurred by the owner because ofthe expropriation Accordingly the trial court conclusion dismissing Fclaims is reversed s s K TIMELINESS OF INTERVENORS CLAIMS According to the allegations of their pleading Fruge APDC and Fruge joined with F in a demand for additional compensation Although they assert that along K with F they are collectively engaged in the delivery of professional dental K services to the public in a solo practice under the name of C Farrell Fruge Jr S D and haue operated exclusively at the same location since 1986 neither has been named a defendant in this expropriation suit Thus their claims are properly asserted as intervenors rather than plaintiffs See La C arts reconvention in P 1061 A defendant in the principal action may assert in a reconventional demand the any causes of action which he may have against the plaintiff in the principal action and 1091 a third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object ofthe pending action against one or more of the parties thereto by uniting with defendant in resisting the plaintiffs demand The trial court sustained the City peremptory exception raising the s Parish objection ofprescription finding that intervenors claims were untimely asserted On appeal intervenors challenge that conclusion Before addressing the correct prescriptive period applicable to these intervenors claims we must first determine whether they have an interest in property that the City has taken from them Parish 4 Our conclusion is underscored by the July 22 1976 Minutes of the House Committee Civil Law and Procedure Meeting at which David Ellison explained that the proposed law required among other things a notice to landowner who failed to answer original suit second 6 without compensating them See 5tate Dep of Transp and Dev u Jacob 483 t 2d So 592 595 La 1986 We begin by examining the contents of the intervenors pleading Although they aver along with F the collective engagement in dental services and an K exclusive operation at the same location they do not identify the location or allege any direct connexity with the expropriated property While a liberal reading of their allegations leads to an inference of some arrangement with F whom they have K joined in their intervention claims there is no allegation describing the nature of their interest in the expropriated property This court may raise on our own motion a peremptory exception objecting on the basis of the failure of the pleading to disclose a right of action See La C P art 927B The function ofthe exception of no right of action is to determine whether the intervenors belongs to a class of persons to whom the law grants the cause of action asserted in the suit The focus in an exception of no right of action is on whether the particular intervenors ha a right to bring the suit but it assumes that e the pleading states a valid cause ofaction for some person and questions whether this party is a member of the class that has a legal interest in the subject matter of the litigation See Gibbs u Delatte 2005 La App lst Cir 12 927 So 0821 OS 22 2d 1135 1131 writ denied 2006 La 4 926 So 548 0198 06 24 2d Attached to a responsive memorandum intervenors filed in conjunction with the City s Parish peremptory exceptions is a copy of document entitled TRANSFER AND ASSIGNMENT a According to this document dated June 19 2008 prior to the filing ofthe expropriation proceeding K F conveyed and assigned to intervenors the usufruct use and utility of the tract of land from which the City expropriated a smaller tract and additionally conveys and assigns to Parish intervenors all litigious and other personal rights and interests in and to any expropriation or other eminent domain proceeding involving that same larger tract But neither the minutes nor the transcript of the proceeding show that Lhe document was admitted into evidence and considered by the trial court And the document was not annexed to the intervenors pleading Thus the document is not properly considered on review See Niemann u Crosby Dev Co L 2011 C 1337 La App lst Cir 5 92 So 1039 1045 evidence not properly and officially offered 12 3 3d and introduced cannot be considered even if it is physically placed in the record in particular documents attached to memoranda do not constitute evidence 7 Because intervenors have failed to set forth facts sufficient to ascertain what property the City has allegedly taken from them without compensating them Parish to the full e oftheir loss they have failed to state a right of action entitling them ent to relief Thus although the trial court correctly granted the City smotion to Parish dismiss the correct basis was intervenors failure to state a right of action When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition the judgment sustaining the exception shall order such amendment within the delay allowed by the court La C art P 934 Accordingly the matter is remanded to the trial court with inshuctions that an order be issued to intervenors to amend their pleading to state a right of action against the City within a delay deemed reasonable by the trial court Parish DECREE Accordingly for these reasons that portion of the trial court judgment s granting the City motion to dismiss and dismissing F claim for s Parish s K additional compensation is reversed That portion of the trial court judgment s granting the City motion to dismiss intervenors claims on the basis of s Parish prescription is amended to dismiss intervenors claims on the basis of failing to state a right of action and as amended is affirmed Appeal costs in the amount of 50 587 are assessed one to the City of Baton Rouge and Parish of East Baton half Rouge and one to C Farrell Fruge Jr D APDC and C Farrell Fruge Jr half S individually REVERSED IN PART AMENDED AND AS AMENDED AFFIRMED IN PART REMANDED WITH ORDER 8
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