State Through DOTD v. Estate of DavisState Through DOTD v. Estate of Davis
This lawsuit involves an expropriation proceeding in St. Charles Parish, Louisiana, pursuant to
On July 21, 1983, six days later, Harold J. Sonnier filed a motion to be recognized as attorney of record for the Estate1 and a motion to withdraw the $94,450 deposit. On the same day, the motions were granted by the trial judge and Sonnier withdrew the funds from the registry of the court. On October 4, 1983, Sonnier filed an answer to the expropriation suit, first asserting that just compensation for the property was $199,464.30 and lаter amending his answer to increase the value of the property to $370,900. On April 23, 1984, a petition for intervention was filed by Jo Ann Davis, an alleged heir of Giles Davis, opposing the position of both the Department and the Estate. She was not represented by Harold Sonnier. She prayed to be recognized as an heir to the Estate and as such entitled to take her full share in the proceeds obtained by the Estate as a result of the expropriation. Her petition to intervene was granted.
Thеreafter, on September 21, 1984, the Estate, the Department and Jo Ann Davis filed a joint petition to settle the expropriation suit whereby the Department deposited an additional $126,250 in the registry of
About two months later, when Sonnier‘s clients, as well as the heirs of Giles Davis not represented by Sonnier in the expropriation suit, learned of the settlement judgment, they filed two lawsuits. The first was a petition to annul the settlement judgment alleging that Sonnier never informed them of his attempt to compromise the expropriation suit and that none of the sums paid to him were received by the heirs. They further alleged that the settlement judgment should be annulled because it was rendered agаinst the “Estate of Giles Davis” which is not a proper party to the lawsuit and because it was obtained by fraud or ill practices. The second suit was filed against Harold Sonnier to enjoin him from expending monies withdrawn from the registry of the court, to order an accounting of those funds and for damages. The suits were consolidated for trial. Based on a stipulation of facts, judgment was rendered against the Department annulling the September 21, 1984 settlement judgment insofar as it authorized the withdrawal of $115,890.40 by Harold Sonnier on behalf of the Estate but affirming the judgment insofar as it authorized the withdrawal of $10,359.60 by Jo Ann Davis.2 In the suit against Sonnier, the trial judge ordered that the sums withdrawn from the registry of the court by Harold Sonnier be returned.3
Subsequently, on October 27, 1988, the expropriation suit was tried.4 The trial judge rendered judgment awarding the Estate the sum of $218,604 as just and adequate compensation for the expropriation of the property. He gave the Department credit for the $220,700 it had deposited in the registry of the court concluding that “it would be unwisе and unfair to make [the Department] pay twice.” He awarded $10,000 in attorney fees. The Estate‘s motion for a new trial was denied. The court of appeal, 560 So.2d 566, affirmed the award of compensation and attorney fees. It also affirmed the credit in favor of the Department for sums previously paid, finding that the Department followed procedures set forth in the expropriation statutes by depositing funds in the registry of the court. The court held that it was the responsibility of the trial court, not the Department, to disburse the funds so deposited; hence, the Department acted properly and was entitled to a credit. The court amended the judgment to award interest on $126,250 from the date the Estate answered the expropriation suit demanding additional compensation (October 4, 1983), until the date the Department made its second deposit
Upon application by the Estate of Giles Davis and Geraldine Hill and Thelma Hubbard, Co-Executrixes of the Estates of Giles and Mathilda Davis,6 we granted certiorari primarily to review that portion of the decision allowing credit to the compensation award for the deposits ($220,700) made by the Department in the registry of the court.7
The Estate contends that it was error to grant the Department credit for the deposits it paid in the registry of the cоurt because the Department‘s suit was filed against an improper party.
Since expropriation proceedings are in derogation of the right of individuals to own property, the law governing these proceedings must be strictly construed against the expropriating authority. State, Dept. of Highways v. Jeanerette Lumber & Shingle Co., 350 So.2d 847 (La.1977). Both the constitution and statutory rules regulate and limit the manner in which expropriation may be affected.
The Department claims that it properly sued the owner of the property by filing a petition naming as defendant the “Estate of Giles Davis” and appointing an attorney at law to represent the Estate since Giles Davis was deceased.8
The proper party defendant in a suit against a succession is a succession representative.
Having filed suit аgainst an improper party, the funds deposited in the registry of the court were not deposited “for the use and benefit of the persons entitled thereto.” An attorney purporting to represent the “Estate of Giles Davis,” who in fact only represented about half of the potential heirs of the succession of Giles Davis, withdrew the deposits from the registry of the court and failed to distribute most of the funds to the rightful heirs.11 Because the succession was not properly represented as a party dеfendant, it was not protected against the actions of the attorney purporting to represent the succession. As a result, the heirs of Giles Davis have not received the just compensation that is due to them. Inasmuch as this was the fault of the Department, it should not be allowed a credit for the funds ($220,700) previously deposited into the registry of the court.
Additional issues presented as a result of our grant of certiorari are: (1) the amount of interest on the compensation award, (2) the award оf attorney fees for the Estate, and (3) the amount of compensation for the expropriated property.
THE AMOUNT OF INTEREST
The judgment rendered therein shall include, as part of the just compensation awarded, legal interest on the amount finally awarded as of the date title vests in the plaintiff to the date of payment, but interest shall not be allowed on so much thereof as has been deposited in the registry of the court [Emphasis added].
The statute was amended by Act 882 of 1988 to read as follows:
If the amount finally awarded for compensation exceeds the amount deposited, the judgment shall include legal interest on the excess from the date of legal demand until paid, but such interest shall not accrue on any award made for expert fees or attorney fees prior to judgment [Emphasis added].
“In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”
We hold that since
THE AWARD OF ATTORNEY FEES FOR THE ESTATE
The trial judge awarded $10,000 in attorney fees to the Estate‘s attorneys. The court of appeal affirmed. Attorneys for the Estate contend that considering the totality of the effort expended by counsel for their clients, including the injunction action against Sonnier, the action to nullify the settlement judgment, as well as the expropriation trial, the award of $10,000 is “grossly” inadequate to compensate them
Attorney fees in expropriation cases are discretionary with the trial court. A number of factors should be considered including the complexity of the case, the responsibility required of the attorney, his skill, knowledge and diligence, the result obtained and the work performed. State, Department of Transportation v. Hecker, 493 So.2d 125 (La.App. 5th Cir.), writs denied, 494 So.2d 325, 326 (La.1986).
Considering the protracted litigation caused by the failure of the Department tо name the proper party defendant, we find that the trial judge abused his discretion in awarding only $10,000 in attorney fees; rather, we consider an award of $25,000 to be more appropriate.15
AMOUNT OF COMPENSATION
The trial judge awarded to the Estate $218,604 as just and adequate compensation for the property finding that the appraisal of the property by Jack Evans, the Department‘s appraiser, came closer to the measure of compensation that should be allowed the Estate. The cоurt of appeal affirmed.
J. Bradley Oubre testified as an expert property appraiser at trial on behalf of the Estate. Mr. Oubre submitted two appraisals. One was dated March 24, 1984, and valued the land as of the date of expropriation, July 15, 1983, at $220,700 or $.56 per square foot based upon comparable sales in the surrounding area. On or about September 16, 1987, Oubre made a second appraisal of the property based upon the value of the property as of the same expropriation date but estimating the value of the property to be $698,348 or $1.76 per square foot. The second appraisal added five new comparable sales. Oubre concluded that the highest and best use of the property would be a zoning of R-3 with a maximum of 126 multi-family units. Oubre explained that land values were impacted by the highway project and sales prices at the time of taking did not fairly depict market value. He claimed that the second appraisal more acсurately reflected market value at the time of taking based upon comparable sales in the immediate parish area.
Jack E. Evans, Jr., an expert real estate appraiser, testified at trial on behalf of the Department. It was on his original appraisal that the Department based its first $94,450 deposit. Using comparable land sales as the method of computation, he valued the land at $218,604, or $.55 per square foot. He was of the opinion that the demand in a predominantly rural area would not support the highest and best use of the R-3 zoning but instead would support its current use as an estate site for residential purposes.16
In expropriation proceedings, much discretion is granted to the trier of fact. The trial judge‘s factual determinations as to value of property and severance damages, and his evaluation of and weight given to testimony of expert witnesses, will not be disturbed on review in the absence of manifest error. State, Dept. of Transp. & Dev. v. Stumpf, 519 So.2d 279 (La.App. 5th Cir.), writ denied, 520 So.2d 753 (La. 1988). The trial judge considered the valuation of Mr. Evans, the Department‘s appraiser, to be closest to the measure of compensation that should be allowed. Mr. Evans valued the property at $218,604. Even the first appraisal of Mr. Oubre, the Estate‘s expert, was $220,700. Moreover, the award in the settlement judgment (even though annulled insofar as it authorized the withdrawal of funds by Sonnier) was $220,700. Accordingly, we are unable to say that the trial judge‘s valuation of $218,604 was manifestly erroneous.
We find that the Department should not be allowed a credit for the funds ($220,700) previously deposited in the registry of the court. Second, legal interest should be awarded on the amount of the judgment that exceeded the initial deposit from July 15, 1983, the date title vested in the Department, until September 21, 1984, the date that the additional compensation was deposited in the registry of the court. Third, the amount of attorney fees are increased from $10,000 to $25,000. Fourth, we affirm the award of compensation. Finally, we remand the case to the trial court for clarification on the issue of expert fees and to recast the judgment in favor of the heirs of Giles and Mathilda Davis, and against the Department for the amount of $218,604 together with costs, subject to a credit for amounts previously received by the heirs.
DECREE
For the reasons assigned, the judgment of the court of appeal is reversed insofar as it granted a credit to the Department for the funds ($220,700) it deposited in the registry of the court. The judgment awarding legal interest is amended to award interest on the amount of the judgment that exceeded the initial deposit from July 15, 1983, until September 21, 1984. The judgment of the court of appeal is amended to increase the award of attorney fees from $10,000 to $25,000. The judgment of the court of appeal awarding compensation in the amount of $218,604 is affirmed. The case is remanded to the trial court to clarify the issue of expert fees and to recast the judgment in favor of the heirs of Giles and Mathilda Davis, and against the Department in the amount of $218,604 together with costs, subject to a credit for amоunts previously received by the heirs.
Notes
The record indicates that $59,411.80 remained on deposit in the registry of the court at the time of trial. According to briefs filed in this court, the amount of $45,800 has not been recovered from Sonnier. The Estate alleged that a financial institution has intervened as a creditor of Sonnier claiming a right to a portion of the funds.
Oubre performed a second appraisal in 1987. He requested an additional $5390 for the second appraisal report at trial. While the trial judge awarded “costs” to the Estate, he did not specify whether those costs included this fee. At the hearing on the motion for a new trial, the Estate urged the trial judge to award the fee. The trial judge noted that the amount was “quite a bit.” Although he denied the motion for a new trial, he did not rule on the fee. Accordingly, we agree with the court of appeal that the case should be remanded for clarification on this issue.
The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when: (2) The action or proceeding is in rem and; (a) the defendant is dead, no succession representative has been appointed, and his heirs and legatees have not been sent into possession judicially; ....
Art. 2674 provides in pertinent part:
The court shall appoint an attorney at law to represent the unrepresented defendant in an executory proceeding under the following circumstances: (2) When the debtоr is dead, no succession representative has been appointed, and his heirs and legatees have not been sent into possession.