405 So. 2d 1174 | La. Ct. App. | 1981
This is an appeal taken by the State Department of Highways from the awarding to defendant, Roland J. Robert Distributor, Inc. of $57,280.00, less a credit of $7,897.00 previously deposited in the court, for property value and severance damages in the expropriation of a portion of a certain tract of land which the defendant corporation owned and on which it operated a service station, tire and automobile parts distributorship and automobile repair service department. Also located on the tract of land was a building used as a warehouse, on each end of which building were two retail rental units. The Department of Highways contends on appeal that the portion of the award attributable to property value was excessive, and that no severance damages should have been awarded. We affirm.
The order of expropriation was dated March 9, 1976. The trial on the amount to be awarded was conducted December 21, 1979. Although the cases were not consolidated, by stipulation of counsel the testimony taken in four other expropriation cases
The service station and related facilities are located on the northwest corner of the intersection of Louisiana Highway 44 and Louisiana Highway 30 in Ascension Parish. The property taken in the present case was a strip of property fifteen feet in width along Louisiana Highway No. 44, containing 2,287.50 square feet. The strip of property is the easternmost fifteen feet of the defendant’s tract of land at this site. The parent tract of land owned by the defendant and affected by this expropriation is slightly irregular in shape, but it approximates a 200 foot by 200 foot square excluding a roughly equilateral triangle of land of about 90 feet on each side of the triangle which filled in the northwest corner of the said intersection. At the point of intersection Highway 44 runs north and south from Gonzales to the Burnside industrial complex and Highway 30 runs east and west from Baton Rouge to the Airline Highway. Gonzales lies a short distance to the north on Highway 44.
The property of defendant on Highway 44 along with property belonging to others was expropriated to effect the widening and improvement of that highway. The intersection of Highways 44 and 30 was controlled by a traffic signal both before and after widening. However, a median was to be placed on Highway 44 on the north and south approaches to the intersection which had not been in place before.
At the time of expropriation defendant’s place of business had one island for gasoline pumps, located on the Highway 30 access drives to the service station. Although wiring and plumbing had been installed to permit the building of another service island parallel to Highway 44, the gasoline pumps for that island had not been installed at the time of the taking.
Defendant called one expert appraiser, Kermit W. Williams. The Department of Highways called two expert appraiser, L.J. Roy and Oren W. Russell. The three appraisers arrived at their valuation of the property by the comparable sales method. Williams estimated the expropriated property to have a value of $5.00 per square foot, or the portion taken to be worth $11,-437.00 for the land and $1,508.00 for the improvements taken, for a total value of $12,945.00. He testified that on the remaining property defendant had sustained severance damages of $44,335.00 as a result of the taking, determined by the reduction of the value of the remaining land from $5.00 to $4.00 per square foot, and a reduction of 10% of the utility of the buildings and improvements on the remaining land. Roy, on the other hand, testified that the expropriated property was worth $2.50 a square foot at the time of taking, or $5,719.00. Improvements were valued by Roy at $2,288.00. He thus arrived at a total valuation of the property expropriated at $8,007.00. Russell estimated the value of the property taken to be $2.31 a square foot, or $5,284.00. Improvements were valued by Russell at $2,709.00. He thus arrived at a total valuation of $7,993.00. Neither Roy nor Russell found that any severance damages had been sustained.
The trial court found in written reasons for judgment that Williams’ appraisal was the most reasonable. The reasons for judgment specifically mention (1) the fact the corner in question was the prime corner in the area, (2) the fact that the corner in question had the greatest traffic flow in the area, and (3) the fact that the largest shopping center in the Gonzales area stood on the north and west sides of the defendant’s property. A trial court award in an expropriation case will not be upset when it bases its award upon a reasonable and sound analysis of expert testimony. State through Department of Highways v. Havard, 239 La. 133, 118 So.2d 131 (1966); State through Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970).
Defendant’s expert and the state’s experts used, or were aware of, generally the same comparable sales. All the sales were made for a price substantially less than the $5.00 per square foot used by Williams in making his appraisal. However, some of the comparable sales were old, and the locations of the comparable property were not nearly so favorable. As noted by the trial court, he relied in making his award primarily upon the extremely favorable and, therefore, valuable location of the property expropriated. No other locations were nearly so favorable, and some of the sales were much more remote in time. The basic disagreement between the appraisers for the state and the defendant results from their use of different sales in arriving at the most appropriate percentage of increase in value to be applied to the subject property to reflect most accurately its value at the time of the taking. We
Severance damages are the damages to the remainder of a tract of land resulting from a partial taking, and are ordinarily calculated as the difference between the market value of the remaining property immediately before and immediately after the taking. State, Dept. of Hwys. v. Denham Springs Dev. Co., Inc., 307 So.2d 304 (La.1975). The trial court awarded defendant the sum of $44,335.00 as severance damages to its remaining property stating that the formerly unrestricted access to the property from La. 44 will be restricted “due to the construction of a median barrier on La. 44.” The trial court further stated that “because of the reduction in size of the subject tract and its layout, particularly with reference to the pump island, ingress and egress from the service station area will be rendered much more difficult.” Both of the state’s appraisers testified that the taking resulted in no damages to the remainder of defendant’s property. These two appraisers, using the market data method, were of the opinion that after the taking the highest and best use of the remainder was still commercial retail as it was before, and that the utility of the remaining land and its improvements had not been diminished by the taking of the expropriated parcel. They testified that the construction of the median barrier on La. 44 would not have the effect of impairing access to the subject tract to any greater extent than before, and that there remained sufficient land area to utilize the pump island area on La. 44 and to conduct the same volume of business that defendant enjoyed prior to the taking. Mr. Williams, defendant’s appraiser, testified that damages to the remaining property were sustained in the amount of $44,335.00. Also using the market data approach, he agreed with the state’s appraisers that the remainder retained its highest and best use as commercial retail after the taking, but was of the opinion that the utility of the buildings and improvements on the remainder had been diminished in value by approximately 10%, and that the value of the re
The record further shows, in regard to severance damages, that on the La. 44 side of defendant’s property, there was approximately twenty-five parking spaces for vehicles left for servicing, repairs, tires and accessories. Some ten of these parking spaces will be lost as a result of the expropriation. The loss of so substantial a number of customer parking spaces will clearly diminish the ability of defendant to accommodate as large a number of its customers’ cars as before, and will thus reduce the amount of business that defendant is able to conduct on the remaining property, hence reducing its value. Furthermore, as a result of the taking it will not be feasible to complete and use the projected service island along La. 44 because of the reduction of space attendant upon the taking, and the defendant has been deprived of the full potential of the future growth of its business operations. We, therefore, find no error in the trial court’s award of severance damages.
We note that the judgment of the trial court appears to fix attorney’s fees for defendant at 25% of the entire amount of the award. Under the provisions of LSA-R.S. 48:453(E) the award of attorney’s fees is to be fixed in a reasonable amount not to exceed 25% of the amount by which the award exceeds the amount deposited in the registry of the court. The trial court in the exercise of its discretion fixed attorney’s fees at 25%. The judgment of the trial court should have spelled out that attorney’s fees of 25% were to be computed upon the difference between the amount deposited and the amount of its award for market value and severance damages. To the extent it failed so to limit attorney’s fees by specific language, it erred.
The total award for property value and severance damages was $57,280.00. The amount deposited was $7,897.00. Hence the amount of attorney’s fees should be 25% of the difference between these two sums, or 25% of $49,383.00. The judgment of the trial court is hereby amended accordingly.
We affirm the judgment of the trial court, as amended, all costs to be paid by appellant.
AMENDED AND AFFIRMED.
. State through DOTD v. First National Bank of Gonzales, No. 25,277, State through DOTD v. LeBlanc, No. 24,528, State through DOTD v. Cannon, No. 22,973, and State through DOTD v. Daigle, No. 25,278, Twenty-Third Judicial District Court, Parish of Ascension.