The opinion
k• 6 k, a•.. V•
STATE OF LOUISIANA
FIRST CIRCUIT
PA11F* 11
PARISH OF LIVINGSTON
VERSUS
A& M INVESTMENT PROPERTIES, LLC
JUN 2 7 2024
Judgment Rendered:
On Appeal from the Twenty -First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Docket No. 170193
Honorable Charlotte H. Foster, Judge Presiding
Christopher M. Moody Counsel for Plaintiff/Appellee
Albert D. Giraud Parish of Livingston
Hammond, Louisiana
Thomas M. Lockwood Counsel for Defendant/ Appellant
Baton Rouge, Louisiana A& M Investment Properties, LLC
BEFORE: McCLENDON, HESTER, AND MILLER.. 33.
McCLENDON,, J.
In this expropriation proceeding, the property owner appeals a judgment that
dismissed its claims seeking additional compensation. We affirm.
The history of the property relevant to this appeal begins in August of 2000, when
Michelle Stogner and her late husband, through their business A& M Roofing and Sheet
Metal, Inc. ( A& M Sheet Metal), entered into a lease with an option to purchase property
bearing municipal address 8670 Cook Road in Denham Springs, Louisiana ( the property).
The property consisted of a tract of land and a building situated thereon. In May of 2001,
the Stogners purchased the property through a separate entity, A& M Investment
Properties, LLC ( A& M Investments). The Stogners formed A& M Investments, defendant -
appellant herein, to serve as an investment property to " house a sheet metal company[,)"
which they hoped to later sell to fund their retirement.
After A& M Investments purchased the property, the Stogners renovated the
building and operated A& M Sheet Metal on the property until Mr. Stogner's death in 2009.
Ms. Stogner continued running A& M Sheet Metal for the following five years, but closed
A& M Sheet Metal in 2014 due to her health problems. In 2016, the building on the
property flooded. Pertinent to this appeal, the office area of the building was never
repaired after the flood, A& M Sheet Metal never resumed operations, and A& M Sheet
Metal has never been a party to these proceedings.
On August 29, 2017, the Parish of Livingston ( the Parish), plaintiff -appellee, held
an " Open House Public Meeting" regarding the proposed improvement of Cook Road from
Louisiana Highway 16 to Louisiana Highway 1026 in Livingston Parish ( Cook Road
project). Ms. Stogner attended the public meeting.
At some point in 2017, though it is unclear whether before or after the public
meeting concerning the proposed Cook Road project, Ms. Stogner entered into
negotiations for the possible lease or purchase of A& M Investments' sheet metal facility
with Steven Schrieffer, President of Atlas Blowpipe and Sheet Metal Works ( Atlas) in
Metairie, Louisiana. Ultimately, due to the approval of the Cook Road project and the
2
impending expropriation of the subject property, Atlas decided not to lease or purchase
A& M Investments' facility.
In August of 2020, the Parish initiated negotiations with A& M Investments for the
purchase of a section of the property, designated as Parcel No. 2- 3, and the rental of a
second section of the property, designated as Parcel No. 2- 3- C- 1, during construction.
The Parish' s original proposal contemplated the acquisition and removal of the building
and site improvements, resulting in a vacant tract of land, with A& M Investments
retaining ownership of the portion of land not acquired by the Parish. The Parish
commissioned two appraisers to perform appraisals. Both appraisals considered the cost
of moving the equipment from the sheet metal facility, demolishing the building, and
leaving A& M Investments with a portion of the remaining piece of land. One appraiser
valued the building at $ 164, 760. 00 and the total amount of just compensation for the
expropriation at $ 183, 229. 00, while the other appraiser valued the building at
165, 281. 00 and the total amount of just compensation for the expropriation at
178, 821. 00. The Parish made an offer of just compensation to A& M Investments in the
amount of $ 183, 229.00, representing the higher of the two appraisals.
In response to the Parish' s offer of just compensation in the amount of
183, 229. 00, Ms. Stogner commissioned an appraisal ( Ms. Stogner's appraisal) and made
a counteroffer in the amount of $460, 000. 00 based on said appraisal. The Parish arranged
for a third appraiser to review Ms. Stogner's appraisal. The Parish' s third appraiser
determined Ms. Stogner' s appraisal did not support her counteroffer. The Parish advised
Ms. Stogner that she could submit another appraisal to support her counteroffer, but she
did not do so.
As the parties were unable to agree on just compensation, the Parish filed a
petition on April 23, 2021 seeking to expropriate Parcel No. 2- 3 and Parcel No. 2- 3- C- 1
pursuant to the general and traditional expropriation method set forth in LSA- R. S. 19: 2,
et seq. The Parish later amended its original petition to seek expropriation pursuant to
the "quick taking" statutes, LSA- R.S. 48: 441, etseq. Subsequently, the trial court ordered
that the expropriated property be declared the property of the Parish upon the deposit
of $
183, 229. 00 into the court registry. Accordingly, the Parish deposited the sum of
3
183, 229. 00 into the registry of the court, and the trial court signed an order directing
payment of $ 183, 229. 00, plus all interest, to A& M Investments. Pursuant to a request
made by A& M Investments, the trial court's order explicitly stated that said payment did
not prejudice the parties' rights to contest and litigate the issue of just compensation.
On June 7, 2021, A& M Investments flied an answer and reconventional demand
seeking additional compensation for the expropriated property and the building and
equipment located thereon. A& M Investments argued the building was " a furnished and
operational sheet metal fabrication facility" containing multiple pieces of heavy equipment
attached both to the foundation of the building and to the three- phase electrical system
and air lines necessary for operation. A& M Investments further alleged the pending
expropriation caused it to lose the opportunity to lease the building and equipment.
Continuing, A& M Investments argued that due to the costs associated with equipping the
property for sheet metal fabrication, the facility had " tremendous future sale and rental
value ... which ... will be lost ... once the building is demolished and the equipment
and infrastructure required for its operation are disconnected and removed." A& M
Investments concluded:
A& M Investments] seeks and is entitled, accordingly, to judgment
herein of an additional sum, over and above the monies deposited by [ the
Parish] into the registry of this Court, to compensate [ A& M Investments]
both to [ the] full extent of the loss of the structure on and the land
comprising the Expropriated Property, as well as for: ( a) the cost of
acquiring an alternate building, either by purchasing, building, or renting an
existing building on an alternate site; ( b) the cost of retrofitting that
alternate building with the three- phase electrical system and air lines
necessary for the operation of the equipment currently housed on the
Expropriated Property; ( c) the removal of that equipment from the
Expropriated Property, the transportation of same to its new location, and
the reinstallation of same therein; ( d) the monthly rentals lost as a result of
A& M Investments] inability to rent the Expropriated Property after
receiving first notice of its expropriation; and ( e) all other expenses related
to [ A& M Investments] re-establishment of its sheet metal fabrication shop,
all as will be proven at the trial of this case.
A& M Investments later filed a motion seeking leave of court to file a supplemental
reconventional demand. A& M Investments alleged therein that the Parish was required
to provide A&M Investments with relocation services and payments; a reasonable sum
sufficient to compensate A& M Investments to the full extent of the loss of the structure
located on the expropriated property and the land comprising the expropriated property;
2
monetary damages to compensate A& M Investments for the cost of re-establishment of
the sheet metal fabrication shop; and legal interest.'
On February 4, 2022, the Parish filed an expedited motion for alternative relief
seeking the removal of A& M Investments' movable property from the expropriated
property. The Parish maintained that A& M Investments received notice to vacate the
building, but had not done so. As a result, various pieces of A& M Investments' equipment
were encroaching on the Parish' s purchased right-of-way and impeding the Cook Road
project. The Parish further alleged that although it had proposed various solutions to the
issue, A& M Investments had not agreed to any of the Parish' s proposed solutions.
Specifically, the Parish alleged it had offered to move the equipment to a location of A& M
Investments' choice, but A& M Investments would not choose a relocation site; the Parish
then offered to auction the equipment, but A& M Investments would not agree to an
auction. Alternatively, the Parish suggested that, rather than demolish the entire building
as originally planned, the Parish could move the equipment to the back portion of the
building, which was not encroaching on the newly purchased right-of-way, leave that
portion of the building standing, and seal it. As A& M Investments also refused to respond
to this suggestion, the Parish sought the relief of the trial court.
Following an April 25, 2022 hearing, the trial court executed a May 21, 2022 written
judgment granting the Parish' s motion for alternative relief. The May 21, 2022 judgment
authorized the Parish to move the equipment "to the back of [A& M Investments] building
and seal off that portion of the building and proceed with demolition of the balance of
the building in order to clear the right-of-way necessary to start construction." Thereafter,
the front portion of the building was demolished, and the remaining portion of the building
was resurfaced and sealed. However, litigation continued regarding the equipment
remaining on the expropriated property. The Parish filed a second amended petition on
August 1, 2022, alleging therein it had learned during the proceedings that certain pieces
I The record does not contain an order of the trial court accepting the supplemental reconventional demand
into the record. However, the Parish answered the supplemental reconventional demand and generally
denied the allegations contained therein on August 22, 2022.
5
of the equipment constituted component partS2 of the immovable property, and
consequently, were subject to expropriation. Thus, the Parish sought a court order
directing an additional deposit in the court registry in the amount of the appraised value
of said equipment. A& M Investments opposed the Parish' s supplemental petition, arguing
the Parish' s requests therein violated La. Const. Art. I, § 4( C), which prohibits the taking
of personal effects other than contraband.
Bearing on the issues before us on appeal, prior to trial, the Parish sought partial
summary judgment providing that the before -acquisition fair market value of the
expropriated property was $ 183, 229. 00, consistent with the higher of the Parish' s two
appraisals. A& M Investments filed a memorandum in opposition to the Parish' s motion
for partial summary judgment. A& M Investments stated therein that it would not offer
evidence to dispute the Parish' s valuation and would stipulate to the relief the Parish
sought, if the partial summary judgment was entered " in a manner that makes clear that
it will not have the effect of adjudicating [ its] claim that it be compensated to the full
extent of its loss[.]" The trial court granted the motion for partial summary judgment,
finding " that the $ 183, 229[. 00] amount deposited by [ the Parish] into the registry of the
court is the before -acquisition fair market value of the expropriated property[.]" In the
same judgment, addressing the Parish' s claims that some of the equipment remaining on
the expropriated property constituted component parts subject to expropriation, the trial
court ordered A& M Investments to show cause why the equipment remaining on the
expropriated property should or should not be recognized as component parts. Ultimately,
however, all of A&M Investments' equipment was moved to the remaining portion of the
building before trial began, with the exception of one 9x14 Cincinnati brake press.
At the outset of the January 18, 2023 bench trial, the parties and the court agreed
that,
in light of the trial court's partial summary judgment establishing the before -
acquisition fair market value of the expropriated property in the amount of $ 183, 229. 00,
the only issue remaining to be determined was whether A& M Investments had been justly
compensated, or alternatively, was entitled to additional damages in excess of the before -
2 The Parish's second amended petition referred to this property as " immovable by destination." However,
the Parish later conceded the proper terminology was " component part." For ease of reading and
correctness, we use the term " component part" throughout.
A
acquisition fair market value of the expropriated property. At trial, A& M Investments
offered the testimony of Ms. Stogner; Mr. Schrieffer; Norbert Schexnayder, Jr., A& M
Investments' real estate appraiser; Charles McBride, the Right of Way Administrator for
the Department of Transportation and Development in Louisiana; and Roger Stogner, a
retired sheet metal worker. The Parish offered the testimony of the two real estate
appraisers commissioned to appraise the property on the Parish' s behalf, Roberto Aguilar
and Angela Lemoine- Lakvold; Barbara Baldwin, the right-of-way agent for this
expropriation; and Kresten Brown, a professional civil engineer. In addition to witness
testimony, numerous documents concerning the expropriation and the circumstances
surrounding same were offered as exhibits.
The three real estate appraisers testified as experts in their field. Mr. Schexnayder,
Mr. Aguilar, and Ms. Lemoine- Lakvold all agreed the before -acquisition fair market value
of the property the Parish sought to acquire, including the building, amounted to
183, 229. 00, as determined by the trial court's partial summary judgment prior to trial.
The real estate appraisers also agreed that A& M Investments' remaining tract of land was
too small to serve its previous purpose as a sheet metal fabrication shop. However, the
experts disagreed as to the issue remaining for determination at trial: whether A& M
Investments was entitled to compensation in excess of the before -acquisition market
value of the expropriated property. While Mr. Aguilar and Ms. Lemoine- Lakvold believed
that A& M Investments had been justly compensated by the before -acquisition fair market
value of the property, and therefore was not entitled to additional compensation, Mr.
Schexnayder disagreed.
With respect to severance damages, which are awarded to compensate a property
owner for a proven decrease in the value of that part of his property that remains after
a taking, 3 Mr. Aguilar and Ms. Lemoine- Lakvold testified the Parish' s partial expropriation
3 Damages to the remaining property are sometimes characterized as " severance damages," a term which
describes the compensable damages that flow from the partial expropriation of a tract of land. 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. Severance damages are awarded to compensate a property owner
for a proven decrease in the value of that part of his property that remains after a taking. Terrebonne
Parish Consolidated Government v. Richard, 2015- 0728 ( La.App. I Cir. 6/ 2/ 16), 196 So. 3d 684, 688,
writ denied, 2016- 1237 ( La. 10/ 17/ 16), 207 So. 3d 1065.
7
was proper and no severance damages were due. Mr. Aguilar testified that expropriation
of the entire tract of land was not appropriate because the remaining property was a
viable, usable piece of land" that could be used for residential or commercial purposes.
Ms. Lemoine- Lakvold' s opinion was consistent with Mr. Aguilar' s. Mr. Schexnayder
conceded that the remaining tract of property had value, but testified it was too small for
industrial use. Mr. Schexnayder further testified the remaining property was unsuitable
for residential use because it was subject to inundation and located in an industrial area.
Thus, Mr. Schexnayder believed the most likely purchaser would be an adjoining property
owner and not a single end- user.
Regarding whether A& M Investments had otherwise been compensated to the full
extent of its loss, Mr. Aguilar and Ms. Lemoine- Lakvold testified that given the poor
condition of the facility and the lack of a lease establishing that the facility could be rented
in that condition, no further compensation was due. Recalling his June 10, 2020
evaluation of the facility, Mr. Aguilar testified that the office area was " completely mold
infested" and recounted the presence of rust and leaks in the warehouse area. He agreed
the building was " uninhabitable[.]" Mr. Aguilar concluded that, in his opinion, " it would
be very difficult to inhabit that and run a full operational business in it." Ms. Lemoine-
Lakvold testified that she observed individuals running equipment in the facility on the
day of her inspection, but A& M Investments did not provide her with a lease as proof that
the facility was in use. Thus, neither Mr. Aguilar nor Ms. Lemoine- Lakvold believed that
A& M Investments was entitled to additional compensation in excess of the before -
acquisition fair market value of the expropriated property.
In contrast, Mr. Schexnayder testified that A& M Investments was not compensated
to the full extent of [ its] loss." Although Mr. Schexnayder testified that the before -
acquisition market value of the property " was accurate as it took into consideration the
condition of the property[,]" specifically "[ t] hat [ it] had flooded," that " there was mold
infestation[,]" and that " items of deferred maintenance [] were inherent in the
buildings[,]"
Mr. Schexnayder nevertheless testified that A& M Investments' facility was
an operating sheet metal fabrication facility prior to the taking[.]" Mr. Schexnayder
stated that his opinion was based on being told the facility was an owner -operated
E
business at the time of the taking, and on his observation of " obvious evidence" that
sheet metal had been recently cut during his June 30, 2021 inspection. While Mr.
Schexnayder did not observe anyone working in the facility during his inspection, he
noted scraps of metal around the bending machines and sheets of metal stored in the
building. Thus, Mr. Schexnayder believed the $ 183, 229. 00 valuation based on Mr. Aguilar
and Ms. Lemoine- Lakvold' s appraisals did not compensate A& M Investments to the full
extent of its loss, because that valuation did not consider the displacement of A& M
Investments, nor did it account for the cost of replacing the utility of the sheet metal
fabrication facility. Mr. Schexnayder opined that the Parish should reimburse A& M
Investments for either the purchase of a new tract of land and the construction of a new
building, or the purchase of an existing structure suitable for use as a sheet metal
fabrication facility. Mr. Schexnayder estimated that the " minimum" replacement cost for
a new structure would be $ 680, 176. 00, based on the deposition of general contractor,
Jack Green. Mr. Schexnayder also testified that he attempted to locate an alternate
suitable site, but many buildings were unsuitable due to the weight of the equipment.
In addition to the expert testimony of the real estate appraisers, Ms. Stogner
testified A& M Investments' sheet metal facility was " operable." She stated, " Everything
operated. As far as like a business, opened up and conducting ... that was all in process
to get going. It takes time for that stuff to happen with a business." Ms. Stogner's brother-
in- law, Roger Stogner, who is a retired sheet metal worker, also testified. He denied the
building was uninhabitable and stated it looked exactly like other sheet metal facilities.
With respect to whether A& M Investments was entitled to relocation costs, A& M
Investments offered the testimony of Charles McBride, the Right of Way Administrator
for the Department of Transportation and Development in Louisiana. Mr. McBride testified
that the owner of an expropriated building is entitled to relocation benefits to move the
owner's personal property from the expropriated building, regardless of whether a
business was operating at the time of the expropriation. However, Mr. McBride testified
that the owner is obligated to notify the expropriating authority of the owner's chosen
relocation site. When asked by the Parish whether a business is " entitled to have a brand
new building built and all the equipment relocated there, if they had not been an
4
operating business?" Mr. McBride responded, " In general, we do - - we do not pay to
build replacement buildings for businesses that are not operating or making money. They
have to be making money." Mr. McBride testified he did not believe A& M Investments
was an operating business at the time of the expropriation, and therefore, he would not
expect the state to be required to construct a new building, move the equipment, and
prepare the equipment for operation. When asked whether it was reasonable for the
Parish to pay fair market value for the equipment remaining on the expropriated property
rather than pay to move it, Mr. McBride testified this was a " unique situation," but it
would be reasonable.
On this point, Mr. Aguilar's testimony on behalf of the Parish was consistent with
Mr. McBride's testimony on behalf of A& M Investments. Mr. Aguilar testified, " when you
have an owner -occupied property that is a viable, operating, functioning business and if
we affect them to where they cannot function in that particular location, then we try to
reestablish them [ in] a new location[.]"
Barbara Baldwin, the right-of-way agent for this expropriation, also testified on
behalf of the Parish. Consistent with Mr. McBride and Mr. Aguilar, Ms. Baldwin testified
that if A& M Investments was found to be an owner -occupied operating business, it would
have been entitled to an additional $ 25, 000. 00 in reestablishment benefits. However,
A& M Investments was not determined to be an owner -occupied operating business
Nevertheless, Ms. Baldwin testified the Parish offered to move the equipment and to pay
three months of rent to store the equipment. Ms. Baldwin testified the storage site the
Parish suggested would have cost $ 5, 000.00 per month in rent and was not big enough
to accommodate operation of the equipment. Ms. Baldwin also testified the Parish' s offer
to move the equipment did not include reinstallation or moving the equipment a second
time from the storage facility to a location where it could be used. When Ms. Stogner did
not agree to any of the locations the Parish proposed, the Parish had the equipment
appraised and offered to pay the fair market value of the equipment.
Regarding A& M Investments' claim that it lost the opportunity to sell or lease the
sheet metal facility to Atlas due to the expropriation, Ms. Stogner and Mr. Schrieffer both
testified they began negotiations prior to September of 2017. However, the Parish
IN
correctly pointed out that the earliest emails between Ms. Stogner and Mr. Schrieffer, and
the drafts of contracts for the proposed lease or purchase of the sheet metal facility, were
dated September of 2017. As the documentary evidence supporting Ms. Stogner and Mr.
Schrieffer' s testimony post-dated the August 29, 2017 public meeting, the Parish
questioned the legitimacy of the negotiations between A& M Investments and Atlas.
On this point, Ms. Stogner testified she and Mr. Schrieffer were " speaking quite
some time" prior to the August 29, 2017 public meeting. She stated she did not
understand the extent to which the potential expropriation would affect her property until
2019 or 2020, so she continued negotiating with Mr. Schrieffer after the public meeting.
Consistent with Ms. Stogner's testimony, Mr. Schrieffer testified he became acquainted
with Ms. Stogner when he was searching for a Livingston Parish location that would
enable him to expand his business to include heavy gauge metal work. Mr. Schrieffer
stated Atlas spent approximately $ 65, 000. 00 cleaning A& M Investments' building and
ensuring the equipment was operational. According to Mr. Schrieffer, if the expropriation
issue was resolved, the $ 65, 000. 00 would " go against" the lease or purchase of the
property, building, and equipment, and Atlas would then operate from that location. Mr.
Schrieffer further testified that while Ms. Stogner advised him the building appraised for
one million dollars, " seven, eight hundred thousand was kind of a number in my mind,
and I never shared that with [ Ms. Stogner]. I didn' t want her to know that. I was going
to tell her it would be worth more like four. But that's kind of the number in my head that
we thought would be a good deal for us."
The Parish offered the testimony of Kresten Brown, the professional civil engineer
who worked on the expropriation. Mr. Brown testified that it should have been evident to
Ms. Stogner at the public meeting that the proposed Cook Road project would affect A& M
Investments' property, although she would not have been notified of the exact plans
specifically in writing" until she was contacted for the negotiation process. In addition,
the Parish relied on two separate emails that cast doubt on Ms. Stogner's credibility.
Specifically, the emails reflected that Ms. Stogner suggested A& M Investments and Atlas
could execute a " side lease" of the sheet metal facility for an inflated value, which Ms.
Stogner could then present to the Parish to inflate the value of the expropriated property.
11
The Parish offered a September 28, 2017 email Mr. Schrieffer sent to Ms. Stogner which
stated, in pertinent part:
I spoke with our attorney on inflating the monthly rent numbers in case a
portion / all of the property was taken because of the proposed road
extension. He informed me that in the event the property was taken by
imminent domain[,] the [ P] arish would assess the value of the property at
that time and would have to reimburse the owner of the fair market value
of it. In other words[,] inflating the monthly rent would not make a
difference.
The Parish also offered into evidence an October 12, 2017 letter Ms. Stogner
addressed to an attorney, " Peter John[,]" at " ONEAL LEGAL[.]" Ms. Stogner's October 12,
2017 letter provided, in pertinent part:
I have agreed to lease for $ 2, 500. 00 per month for the first year only in
order for them to get things back in order to open for business ( 2- 3 weeks)
and some time to gain ground. I have been advised that the average going
rate to lease an industrial building is about [$ 850. 00] a square foot. As far
as an exact number for a monthly lease amount, we have not discussed
other than the going rate and the fact of having a " side lease" to present
to the Parish only ($ 15, 000[. 00]/ month) in the event they decide to start
the Cook Road expansion which will necessitate the need for them to
acquire my property. I do NOT trust them and that's just stating the facts.
I have also been advised and presented with preliminary road expansion
intentions but they cannot give details as to exactly when this should take
place so I CANNOT wait and also miss out on a potential sale of my building
and equipment. I feel this lease will be my best scenario for A& M as I am
not able to operate for business myself due to health issues and underlying
circumstances. I am open for any advice you may have for me.
Ms. Stogner testified that when she proposed the " side lease[,]" she believed that
would be " no different than a cash sale and a counter letter." However, once she learned
the " side lease" would be illegal, " that was the end of that, period." Mr. Schrieffer testified
that $ 15, 000. 00 per month for a property that size was " probably pretty close to that
amount[,]" but he wasn't willing to pay that amount. Mr. Schrieffer also testified that
while he did not know what Ms. Stogner's intentions were, he " wouldn' t have blamed
her" if she was " using" him in order to inflate the value prior to expropriation.
Following trial, the trial court took the matter under advisement and requested
post -trial memoranda from the parties. The trial court issued written reasons for
judgment on February 24, 2023, declining to award A& M Investments damages in excess
of the before -acquisition fair market value of the expropriated property. Thereafter, the
trial court executed a written judgment on May 10, 2023, which provided, in pertinent
part:
12
After presentation of the evidence and argument of counsel, the
court took the case under advisement. On February 24, 2023, the court
issued written reasons finding in favor of [ the Parish] and against [ A& M
Investments] regarding [ A& M Investments' claims] for business relocation
damages, alleged lost value of the remaining parcel of land not
expropriated, and attorney's fees, and dismissing those claims, with
prejudice, and partially in favor of [ the Parish] and against [ A& M
Investments] regarding [ A& M Investments] claim for damages associated
with movable equipment of [ A& M Investments], awarding [ A& M
Investments] the fair market value of its 9x14 Cincinnati brake press that
remains on the expropriated property, but dismissing said claim for
damages regarding all other movable property, with prejudice;
Considering the above;
IT IS HEREBY ORDERED, ADJUDGED[, AND DECREED that
there be and hereby is judgment rendered herein in favor of [ the Parish]
and against [ A& M Investments] dismissing [ A& M Investments' claims] for
business relocation damages, alleged lost value of the remaining parcel of
land not expropriated, and attorney's fees, with prejudice, at [ A& M
Investments] costs;
IT IS FURTHER HEREBY ORDERED, ADJUDGED, AND
DECREED that there be and hereby is judgment rendered herein partially
in favor of [ the Parish] and against [ A& M Investments] awarding [ A& M
Investments] $ 22, 000. 00 as the fair market value of its 9x14 Cincinnati
brake press that remains on the expropriated property with ownership of
brake press to transfer to [ the Parish] upon payment to [A& M Investments]
of that amount, and dismissing any and all other of [ A& M Investments]
claims for damages regarding all other of its movable property, with
prejudice, at [ A& M Investments] costs.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
this judgment be and the same hereby is designated as a final judgment,
pursuant to [ LSA- C. C. P. art. 1915].
On May 17, 2023, A& M Investments filed a motion to suspensively appeal the May 10,
2023 judgment.
STANDARD OF REVIEW
In an expropriation proceeding, the determination of what amount will compensate
an individual " to the full extent of his loss" must be made on the basis of the facts of
each case and in accord with the uniqueness of the property right taken. Such findings
by the trial court will not be disturbed in the absence of manifest error. See Naquin v.
Department of Transportation & Development, 604 So. 2d 62, 65- 66 ( La. App. 1
Cir.), writ denied, 608 So. 2d 169 ( La. 1992). When applying the manifest error standard
of review,
an appellate court must apply a two- part test to a factfinder' s factual
determination: ( 1) the appellate court must find from the record that there is a reasonable
factual basis for the finding of the trial court; and ( 2) the appellate court must further
13
determine that the record establishes the finding is not clearly wrong or manifestly
erroneous. Lafayette City -Parish Consolidated Government v. Person, 2012-0307
La. 10/ 16/ 12), 100 So. 3d 293, 297- 98. Thus, if there is no reasonable factual basis in
the record for the trial court's finding, no additional inquiry is necessary to conclude there
was manifest error. However, if a reasonable factual basis exists, an appellate court may
set aside a trial court's factual finding only if, after reviewing the record in its entirety, it
determines the trial court's finding was clearly wrong. Lewis v. Fowler, 2018- 0365
La. App. 1 Cir. 9/ 24/ 18), 259 So. 3d 364, 367.
This test requires a reviewing court to review the record in its entirety to determine
manifest error. This court's determination is not whether the factfinder was correct, but
whether the factfinder's conclusion was a reasonable one. Even though an appellate court
may feel its own evaluations and inferences are more reasonable than the factfinder's,
reasonable evaluations of credibility and reasonable inferences of fact should not be
disturbed upon review where conflict exists in the testimony. Thus, where there are two
permissible views of the evidence, the factfinder's choice cannot be manifestly erroneous
or clearly wrong. Walton v. State Farm Mutual Automobile Ins. Co., 2018- 1510
La. App. 1 Cir. 5/ 31/ 19), 277 So. 3d 1193, 1196. Further, the rule that questions of
credibility are for the trier of fact applies equally to the evaluation of expert testimony,
including the evaluation and resolution of conflicts in expert testimony. Lewis, 259 So. 3d
at 367.
M
In 1974, the Louisiana Constitution was amended to provide that, in an
expropriation, " the owner shall be compensated to the full extent of his loss."
LSA -Const.
art. I, § 4(A)( 5).
There is no specific formula set forth by the legislature to aid courts in
determining the " full extent of loss." The Constitution states only: " Except as otherwise
provided in this 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 of the expropriation." LSA -Const.
art. I, § 4(A)( 5); St. Bernard Port, Harbor &
Terminal Dist. v. Violet Dock Port,
Inc...LLC, 2017- 0434 ( La. 1/ 30/ 18), 239 So. 3d 243, 252- 53.
14
Jurisprudence indicates that the landowner must be compensated not merely with
the market value of property taken and severance damage to his remainder, but to the
full extent of his loss and placed in as good a position pecuniarily as he enjoyed prior to
the taking. Williams v. City of Baton Rouge, 98- 1981 ( La. 4/ 13/ 99), 731 So. 2d 240,
249. Jurisprudence reflects that compensable items of damages in expropriation cases
may include the loss of business, replacement costs, relocation costs, inconvenience, and
loss of profits. See City of Baton Rouge/ Parish of East Baton Rouge v. Broussard,
2002- 0166 ( La. App. 1 Cir. 12/ 31/ 02), 834 So. 2d 665, 667- 68, writ denied, 2003- 0652
La. 5/ 30/ 03), 845 So. 2d 1056. Particularly regarding business losses, where it is proven
by a preponderance of the evidence that a business sustained an actual economic loss
because of the expropriation, damages for incidental and consequential loss must be
awarded to fully compensate the owner. See State. Department of Transportation
Development v. Dietrich, 555 So. 2d 1355, 1358 ( La. 1990). In such cases, proof of
economic loss may be determined by various methods, and it may exceed the market
value of the property. Dietrich, 555 So. 2d at 1359. In unusual situations, the market
value of the expropriated property constitutes insufficient compensation and the
expropriatee is entitled to replacement value, the amount necessary to reconstitute the
property. However, an award of replacement value is the exception, not the rule.
Department of Transportation & Development v. Oswald, 27, 752 ( La.App. 2 Cir.
12/ 6/ 95), 665 So. 2d 668, 671, writ denied., 96- 0445 ( La. 3/ 29/ 96), 670 So. 2d 1231.
Where the landowner challenges the amount of just compensation for an
expropriation,
the landowner bears the burden of proving a greater value by a
preponderance of the evidence. See State., Department of Transportation &
Development v. Munson, 2014- 0492 ( La. App. 1 Cir. 1/ 21/ 15), 169 So. 3d 426, 432,
writ denied-, 2015- 0299 ( La. 4/ 24/ 15), 169 So. 3d 358; City of Baton Rouge v.
Mucciacciaro, 2021- 0656 ( La. App. 1 Cir. 5/ 25/ 22), 342 So. 3d 955, 963, writ denied,
2022- 01172 ( La. 11/ 1/ 22),
349 So. 3d 2. Speculation, conjecture, mere possibility, and
unsupported probability are not sufficient to support a judgment. Mucciacciaro, 342
So. 3d at 963.
15
I
To review the judgment, we examine the entire record, but we cannot set aside
the trial court's judgment in the absence of manifest error. Here, the trial court's judgment
followed a bench trial, where the trial court examined evidence, evaluated the credibility
of multiple witnesses, and weighed the probative value of these assertions. See St.
Bernard Port, 239 So. 3d at 252. As the party challenging the amount of just
compensation deposited by the Parish, A& M Investments bore the burden of proving at
trial, by a preponderance of the evidence, that it was entitled to a higher value. See
Mucciacciaro, 342 So. 3d at 966. On appeal, A& M Investments seeks damages in excess
of the established before -acquisition fair market value of the expropriated property. In
opposition to A& M Investments' appeal, the Parish argues A& M Investments cannot
prevail on appeal because the record contains conflicting evidence and a reasonable basis
for the trial court's rulings, such that the trial court did not manifestly err. Based upon
our consideration of the record and the legal issues before us, we must agree with the
Parish.
We begin with A& M Investments' arguments that the trial court erred in failing to
award it a sum sufficient to compensate it for the lost opportunity to sell or lease the
sheet metal facility; the cost of a replacement facility; the cost of retrofitting a
replacement facility to accommodate sheet metal fabrication; and the cost of moving and
reinstalling A& M Investments' equipment. Underlying all of these arguments is a
presumption that A& M Investments' sheet metal fabrication facility was, at the time of
the expropriation, " fully -operational[,]" or, for purposes of this discussion, " fully-
functional." Thus, in considering the merit of these arguments, we point out that, while
A& M Investments is entitled to be compensated to the full extent of its loss, it is only
entitled to damages that were " actually incurred by the owner because of the
expropriation." LSA -Const. art. I, § 4( A)( 5); see St. Bernard Port, 239 So. 3d at 252- 53.
Phrased differently, A& M Investments is not entitled to compensation for a lost
4 Although the parties' arguments and the testimony were phrased in terms of whether the facility was
operational[,]"
to avoid confusion of the issues of whether this matter involved a business considered
operational" in the legal context of an expropriation, versus a sheet metal fabrication facility that was
practically "operational," we refer in our discussion to the condition of the sheet metal facility as " functional"
or " not functional."
16
opportunity that did not exist, nor is it entitled to compensation for a fully -functional sheet
metal fabrication facility if it did not possess one prior to the expropriation. Thus, central
to these arguments is a dispute as to whether, at the time of the expropriation, A& M
Investments' sheet metal fabrication facility was " fully -operational[,]" or, for purposes of
this discussion, " fully -functional."
In this matter, the record reflects contradictory evidence with respect to whether
A& M Investments' sheet metal fabrication facility was fully -functional at the time of the
expropriation, such that two permissible views of the evidence exist. Ms. Stogner, her
brother- in- law, Roger Stogner, Mr. Schrieffer, and Mr. Schexnayder testified that the
sheet metal facility was functional; however, the Parish' s two expert witnesses, Mr.
Aguilar and Ms. Lemoine- Lakvold, disagreed with Mr. Schexnayder's expert opinion, and
opined that the sheet metal facility was not functional at the time of the expropriation.
Mr. Aguilar described the sheet metal facility as rusting, leaking, " completely mold
infested[,)" and uninhabitable. Based on this record, the trial court could have found that
the sheet metal facility was not functional at the time of the expropriation. Where there
are two permissible views of the evidence, the factfinder's choice cannot be manifestly
erroneous or clearly wrong. Walton, 277 So. 3d at 1196. Accordingly, A& M Investments'
argument that it possessed a fully functional sheet metal fabrication facility, which had a
value in excess of the before -acquisition fair market value of the expropriated property,
and that it should have been compensated for the loss of same, fails.
A& M Investments' argument that the expropriation deprived A& M Investments of
the opportunity to sell or lease the sheet metal fabrication facility also fails due to the
presence of contradictory evidence in the record. As argued by the Parish and pointed
out by the Parish' s appraisers, A& M Investments failed to produce a written lease or a
purchase agreement in effect at the time of the expropriation. Thus, the only evidence
supporting an actual loss of rental or sale income is the testimony of Ms. Stogner and Mr.
Schrieffer. However, Mr. Schrieffer and Ms. Stogner's testimony was called into question
by the documentary evidence of the negotiations. Of particular note was Ms. Stogner's
explicit proposal that Atlas and A& M Investments execute a " side lease" for the purpose
of inflating the value of the facility. The trial court specifically stated in its reasons for
17
judgment both that it was " unpersuaded" by Mr. Schrieffer's testimony, and that '"the
evidence supports that Ms. Stogner only began communicating with Mr. Schrieffer
regarding the defunct sheet metal business after learning of the expropriation in an
attempt to inflate the value of the business." Where factual findings are based on
determinations regarding the credibility of witnesses, the trier of fact's findings demand
great deference and are virtually never manifestly erroneous or clearly wrong. Marcello
v. Jo -Blanche Corp., 2020- 1113 ( La. App. 1 Cir. 6/ 4/ 21), 330 So. 3d 632, 639, writ
denied, 2021- 01666 ( La. 1/ 19/ 22), 331 So3d 330. Additionally, in light of Mr. Aguilar's
testimony that the facility was " uninhabitable[,]" the record contains contradictory
evidence as to whether the facility was in a condition to be leased or sold for an amount
in excess of the before -acquisition fair market value. Thus, we cannot say that the trial
court manifestly erred in finding that A& M Investments failed to prove any lost
opportunity to sell or rent its facility. Accordingly, A& M Investments' argument that it is
entitled to additional compensation for the lost opportunity to potentially sell or lease its
facility fails.
To the extent A& M Investments argues it is entitled to the replacement cost of the
sheet metal facility because it held same as an investment, and has been deprived of the
sale or rental income from investment by the expropriation, we disagree. On this point,
A& M Investments essentially argues that, because it was formed for the purpose of
generating income from the sale or rental of its sheet metal facility, in order for the Parish
to compensate it to the full extent of its loss and to place it in financial circumstances
equivalent to those it enjoyed before the expropriation, the Parish must compensate it
with the cost of recreating an equivalent sheet metal fabrication facility, which it could
then sell or rent for income. While the record does not contain any evidence disputing
A& M Investments' assertion that it is an " investment" business and owned the sheet
metal fabrication facility at issue as investment property, the jurisprudence does not
support A& M Investments' claim that it is entitled to replacement value under the
circumstances presented.
As noted above, in unusual situations, the market value of the expropriated
property constitutes insufficient compensation and the expropriatee is entitled to
IN
replacement value. However, an award of replacement value is the exception, not the
rule. Oswald, 665 So. 2d at 671. This rule derives from the Louisiana Supreme Court's
statement in State Through Department of Highways v. Constant, 369 So. 2d 699,
706 ( La. 1979). In Constant, the state expropriated the entire loading and parking area
of the defendants' marina operation. Constant, 369 So. 2d at 701. As no other land in
the vicinity could be used for loading and parking, this taking essentially destroyed the
marina business operations on the entire parent tract. Constant, 369 So. 2d at 701. Thus,
under the evidence in that record, the Supreme Court concluded that, " Without the
replacement of their loading area, their marina business operations will be substantially
destroyed." Constant, 369 So. 2d at 702.
However, the Supreme Court in Constant made clear that the award of
replacement value was appropriate based on the unique circumstances presented therein.
The Supreme Court repeatedly referenced " the circumstances and the nature of the
property taken" and " the evidence in the present record." Constant, 369 So. 2d at 706-
07. The Supreme Court further stated:
We do not,
by these rulings, announce any general principle that
replacement cost is always the most appropriate measure of awarding a
landowner compensation for the taking of a physical asset used in his
business....
Generally, we assume, the landowners may be compensated fully by other
approaches than by awarding them the replacement cost of the
improvement taken, especially where ( unlike the present instance)
the property is not shown to be froth unique in nature and location
and also indispensable to the conduct of the landowners' business
operations on the site from which a part is taken.
Emphasis added); Constant, 369 So. 2d at 706.
As the party challenging the amount of just compensation deposited by the Parish,
A& M Investments bore the burden of proving, by a preponderance of the evidence, that
it was entitled to a higher value. See Munson, 169 So. 3d at 432. However, A& M
Investments did not offer evidence establishing that the expropriated property was
unique in nature and location, nor that it was indispensable to the conduct of business
operations. We also note, in applying the rule set forth in Constant, our colleagues of
the Second Circuit Court of Appeal have consistently found that rental properties were
not unique and indispensable such that the landowner should be awarded anything other
19
than the fair market value and, where proven, stipulated rental losses. See Department
of Transportation & Development v. Lobel, 571 So. 2d 742, 745 ( La. App. 2 Cir.
1990), writ not considered, 575 So. 2d 360 ( La. 1991); Oswald, 665 So. 2d at 671. In
Lobel, the trial court's written opinion noted that it did not consider the rental property
a unique and necessary part of an ongoing business, considering it to be more in the
nature of an investment. Lobel, 571 So. 2d at 743. Like A& M Investments in this matter,
the landowner in Lobel " referred to the expropriated rental units, not as his business,
but as an investment." Lobel, 571 So. 2d at 745. Similarly, in Oswald, 665 So. 2d at 670,
the parties disputed whether the rental property constituted a business or an investment.
In Oswald, the Second Circuit cited to Lobel in support of its conclusion that the
landowners were only entitled to the fair market value of the propertieS.5 Oswald, 665
So. 2d at 671. In this matter, we find A& M Investments' argument that it is entitled to the
replacement value of its investment property similar to those made in Oswald and
Lobel. Therefore,
we find the trial court did not err in declining to award A& M
Investments additional compensation for the replacement of its sheet metal fabrication
facility.
A& M Investments further argues that the trial court erred in failing to order the
Parish to provide A& M Investments with relocation services and to make all relocation
payments required by the Relocation Assistance Act, LSA- R.S. 38: 3101, etseq. In Polk
v. State,,through Department of Transportation & Development, 538 So. 2d 239,
248 ( La. 1989), the Louisiana Supreme Court explained that these statutes make available
various forms of " relocation assistance" for persons who are " displaced" as the result of
the acquisition of their property by a state agency for a program or project undertaken
by that agency. However, Polk also noted that these statutes clearly envision a fair
amount of agency discretion in this area, as the statutes authorize the award of such
benefits, but do not require that they must be awarded in any particular case. See Polk,
538 So. 2d at 251. Further, Polk alluded that a landowner who moves onto real property
while negotiations are underway for the acquisition of that property in connection with a
5 We also note this court's decision in Mucciacciaro, 342 So. 3d 955, which awarded the appraised value
for residential rental property, and did not consider or discuss an award of replacement value for same.
1011
public project may be disqualified from receiving relocation expenses, if the landowner
fails to satisfy their duty to minimize, or mitigate, their damages as much as possible.
See State, Department of Transportation & Development v. Nelken, 628 So. 2d
1279, 1282 ( La.App. 3 Cir. 1993), writ denied, 634 So. 2d 860 ( La. 1994).
In this matter, both Mr. McBride, the Right of Way Administrator for the
Department of Transportation and Development in Louisiana, and Ms. Baldwin, the right
of way agent for the subject expropriation, testified that A& M Investments qualified as a
displaced business. Mr.
McBride further testified that if an owner's building is
expropriated, and they have personal property situated in that building that has to be
moved as a result of the expropriation, that person " is entitled to relocation benefits to
move the property." Mr. McBride stated that this is true regardless of whether A& M
Investments was an operating business at the time, but it is ultimately the landowner's
obligation to tell the expropriating authority where they want the property moved to.
Here, Ms. Baldwin' s testimony, and the record as a whole, clearly establish that the Parish
made numerous attempts to relocate A& M Investments' equipment. When A& M
Investments failed to respond to same, the Parish filed the motion for alternative relief.
In light of A& M Investments' refusal to identify a site for said relocation, the trial court
issued the order directing that the equipment be relocated to the back remaining portion
of the building and the building be sealed. The effect of this order was simply the
relocation of A& M Investments' movable equipment to A& M Investments' property. Under
the circumstances before us, and given the discretionary nature of the cited statutes, we
cannot say that the trial court erred in ordering the relocation of A& M Investments'
property to the remaining portion of the building. This argument fails.
A& M Investments further argues that the trial court erred in granting the Parish' s
request that it be allowed to purchase movable property in lieu of uninstalling, relocating,
and reinstalling that equipment. As noted above, the Parish' s second amended petition
alleged that some of A& M Investments' equipment constituted component parts of the
immovable property subject to expropriation. However, prior to trial, all of A& M
Investments' movable property was moved and stored in the remaining portion of the
building, with the single exception of the 9x14 Cincinnati brake press. Following trial, the
21
trial court' s judgment awarded A& M Investments $ 22, 000. 00, the fair market value of
the 9x14 Cincinnati brake press. On appeal, A& M Investments maintains that this portion
of the trial court's judgment violated Louisiana Constitution article I, § 4, which prohibits
the taking of personal effects other than contraband. This argument fails.
The laws governing immovable property are set forth in LSA- C. C. arts. 465, 466,
and 467. Louisiana Civil Code article 466, captioned "' Component parts of buildings or
other construction[,]" provides:
Things that are attached to a building and that, according to prevailing
usages, serve to complete a building of the same general type, without
regard to its specific use, are its component parts. Component parts of this
kind may include doors, shutters, gutters, and cabinetry, as well as
plumbing, heating, cooling, electrical, and similar systems.
Things that are attached to a construction other than a building and that
serve its principal use are its component parts.
Other things are component parts of a building or other construction if they
are attached to such a degree that they cannot be removed without
substantial damage to themselves or to the building or other construction.
At trial, the engineer of the Cook Road project, Kresten Brown, testified that the
9x14 Cincinnati brake press remained in its original location " because it was not able to
be moved without either destroying and getting into the existing building to remain or
moving at somewhere" [ sic]. This testimony provides a reasonable basis for finding that
the brake press constitutes a component part of the property expropriated by the Parish,
and is therefore immovable property subject to expropriation. Accordingly, the premise
of A& M Investments' fourth assignment of error — that is, that the trial court erred in
permitting the Parish to purchase movable property belonging to A& M Investments —
fails. The trial court did not err in ordering the Parish to reimburse A& M Investments in
the amount of $ 22, 000. 00 for the fair market value of the brake press, given that the
record reflects the brake press was a component part of the expropriated property, and
was therefore subject to the expropriation. This assignment of error lacks merit.
REQUEST FOR ATTORNEY' S FEES
A& M Investments argues that the trial court erred in denying its claim for
attorney's fees. Louisiana Revised Statutes 48: 453( E) provides:
Reasonable attorney fees may be awarded by the court if the amount of
the compensation deposited in the registry of the court is less than the
22
amount of compensation awarded in the judgment. Such attorney fees in
no event shall exceed twenty-five percent of the difference between the
award and the amount deposited in the registry of the court.
At trial, A& M Investments maintained that it was entitled to an additional award of
783, 908. 00 as compensation for the expropriation. A& M Investments further maintained
it was also entitled to an attorney's fee of twenty-five percent of the additional
compensation, or $ 195, 977. 00, together with all compensable costs of court and legal
interest. As we have affirmed the trial court's judgment denying A& M Investments' claims
for additional compensation, there is no basis for an award of attorney's fees in the
amount of $ 195, 977. 00. Further, while we note that the trial court properly ordered the
Parish to reimburse A& M Investments an additional $ 22, 000. 00 in excess of the amount
deposited in the registry of the court, representing the fair market value of the 9X14
Cincinnati Brake press that remains on the expropriated property, we cannot say that the
trial court abused its discretion in declining to award attorney's fees based on the record
before us.
CONCLUSION
The trial court's May 10, 2023 judgment is affirmed. The costs of appeal are
assessed against appellant, A& M Investment Properties, LLC.
IT1 9- J I W&:t 63
-
23