Opinion
2023 CA 0319
12-27-2023
CITY OF BATON ROUGE AND PARISH OF EAST BATON ROUGE v. TERRENCE JOSEPH DONAHUE AND PATRICIA O'NEAL DONAHUE
David M. Lefeve James L. Hilburn Leo J. D'Aubin William R. Aaron, II Deborah A. Berthelot Baton Rouge, Louisiana Counsel for Plaintiffs/ Appellants City of Baton Rouge and Parish of East Baton Rouge Terrence J. Donahue, Jr. Baton Rouge, Louisiana Counsel for Defendants/ Appellees Terrence Joseph Donahue and Patricia O' Neal Donahue
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 712112 Honorable Richard "Chip" Moore, Judge Presiding
David M. Lefeve
James L. Hilburn
Leo J. D'Aubin
William R. Aaron, II
Deborah A. Berthelot
Baton Rouge, Louisiana
Counsel for Plaintiffs/ Appellants
City of Baton Rouge and
Parish of East Baton Rouge
Terrence J. Donahue, Jr.
Baton Rouge, Louisiana
Counsel for Defendants/ Appellees
Terrence Joseph Donahue and
Patricia O' Neal Donahue
BEFORE: McCLENDON, HESTER, AND MILLER, JJ.
McClendon, J.
In connection with the dismissal of the plaintiffs' expropriation proceeding, the trial court granted the defendants' motion for attorney's fees and costs. The plaintiffs appeal. Finding no abuse of discretion, we affirm.
FACTS AND PROCEDURAL HISTORY
On October 8, 2021, the City of Baton Rouge and the Parish of East Baton Rouge (the City-Parish), plaintiffs-appellants herein, filed a petition seeking to expropriate a piece of immovable property pursuant to LSA-R.S. 48:441, et seq. (quick taking statutes). The property at issue was designated as "Parcel 7-4" and belonged to Terrence Joseph Donahue and Patricia O'Neal Donahue (the landowners), defendants-appellees herein. The trial court executed an order of expropriation on October 21, 2021. The landowners opposed the expropriation. Extensive and contentious litigation followed.
Pertinent to the events leading to this appeal, the City-Parish filed an amending and supplemental petition (first amended petition), together with an order seeking leave of court to file the amended petition and an amended order of expropriation. In opposition, the landowners filed a motion to consolidate, a motion to dismiss, a peremptory exception raising the objection of no cause of action, and a dilatory exception raising the objection of vagueness, all of which the trial court set for hearing on June 20, 2022.
During the June 20, 2022 hearing, the trial court orally dismissed the expropriation proceedings. However, the oral dismissal was not immediately reduced to a written final judgment. In the interim, after the oral dismissal and before the execution of a written judgment in conformity therewith, the City-Parish sought and received leave of court to file an October 10, 2022 pleading captioned "Amending Petition" (second amended petition).
On November 15, 2022, the landowners filed a motion to vacate the trial court's order granting leave of court for the City-Parish to file the second amended petition and a motion to strike the second amended petition (motion to vacate and motion to strike the second amended petition). The landowners maintained that after the City-Parish's expropriation suit was orally dismissed, the City-Parish was required to seek relief via a motion for new trial or an appeal.
While the landowners' motion to vacate and motion to strike the second amended petition were pending, the landowners filed a motion requesting that the trial court enter a final judgment dismissing the City-Parish's expropriation suit, in accordance with the trial court's June 20, 2022 oral ruling (motion for entry of final judgment); tax the City Parish with $4,347.40 in costs accrued in connection with the unsuccessful expropriation suit (motion to tax costs); and tax the City-Parish with $190,080.00 in attorney's fees accrued in connection with the unsuccessful expropriation suit (motion to tax attorney's fees). The memorandum and appended exhibits filed with the motions reflected that counsel for the landowners, Terrence J. Donahue, Jr. (Attorney Donahue), was the landowners' son, and that he was also representing his grandmother, Virginia O'Neal, in a related case in which the City-Parish was attempting to expropriate property referred to as Parcel 7-6. The memorandum acknowledged that some of the costs and fees accrued in defending the two expropriation suits inured to the benefit of both suits; distinguished between the costs and fees accrued to the benefit of the instant suit only and those accrued to the benefit of both suits; and requested an award of costs and attorney's fees consistent therewith, by seeking full reimbursement of only those sums accrued to benefit the instant suit, and seeking an award of one-half of those sums accrued to benefit both suits. In support of the motion for costs and attorney's fees, the landowners offered an October 1, 2014 letter sent on behalf of the City-Parish to the landowners, offering to purchase Parcel 7-4, which reflected the landowners' refusal of the offer; an October 1, 2014 letter sent on behalf of the City-Parish to Mrs. O'Neal, offering to purchase Parcel 7-6, which reflected Mrs. O'Neal's refusal of the offer; and Attorney Donahue's November 25, 2022 affidavit, in which he attested in detail to the work performed in connection with the instant matter and the costs incurred in connection therewith through November 15, 2022. The trial court set the landowners' motions for hearing on January 17, 2023.
On December 1, 2022, the City-Parish filed a motion and order seeking dismissal of their second amended petition without prejudice, with each party to bear their own costs. The trial court executed the order on December 5, 2022. The landowners filed objections to the City-Parish's motion to dismiss on December 11, 2022. The landowners contended that, because they had already made an appearance in the suit, the City-Parish was not entitled to seek a dismissal without prejudice or to have costs assessed against both parties. Rather, according to the landowners, dismissal should be with prejudice and the City-Parish should bear all costs.
On January 12,2023, the landowners filed a reply memorandum in support of their motion to tax costs and attorney's fees. The landowners also attached the transcript of the June 20, 2022 hearing, as well as Attorney Donahue's January 12, 2023 affidavit attesting that an additional $9,689.97 in costs and attorney's fees had accrued since November 15, 2022.
On January 17, 2023, the trial court held a hearing on the landowners' motion to vacate and motion to strike the second amended petition, motion for entry of final judgment, motion to tax costs, and motion to tax attorney's fees. After finding that the landowners' motion to vacate and motion to strike the second amended petition were moot, the trial court took up the landowners' motion to tax costs and motion to tax attorney's fees. The landowners offered, filed, and introduced into evidence the exhibits attached to their motions and their reply memorandum. The landowners argued that the litigation had been pending for eight years and included almost one thousand emails, multiple items of formal correspondence, meetings, and conferences. Attorney Donahue stated that in his experience, the rate for handling expropriation matters generally ranged from $250.00 to $500.00 per hour, and his request was for $300.00 per hour.
Following the January 17, 2023 hearing, the trial court executed a written judgment on January 27, 2023, which granted the landowners' motion for entry of final judgment pursuant to the trial court's June 20, 2022 oral ruling dismissing the CityParish's expropriation suit. The January 27, 2023 judgment explicitly stated, in pertinent part:
While the judgment was captioned "Final Judgment[]" the caption of a pleading does not control. Rather, courts are obligated to look through the caption of pleadings in order to ascertain their substance. Every pleading is to be so construed as to do substantial justice, and regardless of the parties' interpretation of the caption of the pleading, courts will look to the import of a pleading and will not be bound by its title. See LSA-C.C.P. art. 865; Armstrong v. ARCCO Co. Servs., Inc., 2021-0131 (La.App. 1 Cir. 10/18/21), 331 So.3d 939, 945. Here, the January 27, 2023 judgment referenced the June 20, 2022 hearing at which the trial court dismissed the expropriation proceedings, and did not reference the January 17, 2023 hearing of the landowners' other motions. Further, the January 27, 2023 judgment explicitly reserved all rights of the landowners not adjudicated therein and reserved said rights for further proceedings. Thus, we find the January 27, 2023 judgment to be interlocutory. Accordingly, the trial court retained jurisdiction to execute the January 31, 2023 judgment presently before this court on appeal.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that any rights of [the landowners] not adjudicated herein be and are hereby reserved for further proceedings not inconsistent with this judgment.
On January 31, 2023, the trial court executed a written judgment in conformity with its January 17, 2022 rulings. The January 31, 2023 judgment granted the landowners' motion to dismiss the expropriation suit, and entered final judgment dismissing the suit without prejudice; vacated the October 21, 2021 and April 25, 2022 order and amended order of expropriation; granted the landowners' motion to tax costs and attorney's fees, awarding costs in the amount of $3,000.00 and attorney's fees in the amount of $100,000.00; and "denied or overruled all other requests for relief."
The City-Parish filed a motion for devolutive appeal, specifying that they sought to appeal "the judgment rendered on [the landowners'] Motion to Tax Costs and Attorney Fees ONLY[,] rendered in open court on January [17, 2023]" and reduced to writing on January 31,2023. (Emphasis original). The landowners answered the appeal, seeking the additional attorney's fees incurred in defending the appeal.
STANDARD OF REVIEW
In awarding attorney's fees, the trial court is vested with considerable discretion, and the award will not be disturbed in the absence of clear abuse. St. Tammany Parish Hospital Service District No. 2 v. Schneider, 2000-0247 (La.App. 1 Cir. 5/11/01), 808 So.2d 576, 587.
LAW
Expropriation proceedings are special and exceptional in character, in derogation of common rights, and thus, must be strictly construed. City of Baton Rouge v. Johnca Properties, L.L.C., 2000-2524 (La. 6/1/01), 794 So.2d 766, 769. The general method of expropriation is found in LSA-R.S. 19:1, et seq. Under the general procedure, the expropriating public body acquires ownership of the property only after final judgment. LSA-R.S. 19:8; Johnca Properties , 794 So.2d at 771, n.5. Louisiana Revised Statutes 48:441, et seq., provides an additional method by which property may be expropriated by the Department of Transportation and Development for highway purposes prior to judgment in the trial court. These statutes, commonly referred to as quick taking statutes, have been found to be reasonable statutory restrictions on the right to own property, not violative of the due process provisions of La. Const art. I, § 2 and U.S. Const, amend. V and XIV. Johnca Properties, 794 So.2d at 771. Political subdivisions, such as the City-Parish, are entitled to utilize the quick taking procedure pursuant to the Local Services Law, LSA-R.S. 33:1321, et seq., and LSA-R.S. 48:1259. City of Baton Rouge v. F & K Investments, LLC, 2013-0501 (La.App. 1 Cir. 11/1/13), 135 So.3d 760, 763, n.3; Johnca Properties, 794 So.2d at 771-772.
Under current law, claims for damages associated with abandoned or unsuccessful expropriations are governed by LSA-R.S. 19:201. Haik v. Washington Parish Reservoir District, 2015-0812 (La.App. 1 Cir. 2/24/16), 2016 WL 758946, *8 (unpublished), writ denied, 2016-0562 (La. 5/13/16), 191 So.3d 1055. Louisiana Revised Statutes 19:201 provides:
A. A court of Louisiana having jurisdiction of a proceeding instituted by any expropriating authority referred to in R.S. 19:2 shall award the owner of any right, or title to, or interest in the property sought to be expropriated such sum as will, in the opinion of the court, reimburse such owner for his reasonable attorney fees, and court costs, actually incurred because of the expropriation proceeding, if the final judgment is that the plaintiff does not acquire at least fifty percent of the immovable property requested in the petition for expropriation or if the proceeding is abandoned by the plaintiff. If the expropriating authority is the state or its political corporations or subdivisions, any such award shall be paid from the same funds from which the purchase price of the property would have been paid.
B. The rights of the owner herein fixed are in addition to any other rights he may have under the Constitution of Louisiana.
Pursuant to LSA-R.S. 48:454, expropriation suits filed under the quick taking statutes "are tried in accordance with the provisions of the Code of Civil Procedure and general expropriation laws." Thus, LSA-R.S. 19:201 clearly provides for reasonable attorney's fees actually incurred by a landowner in connection with an unsuccessful or abandoned expropriation brought under the quick taking statutes. See State, Department of Transportation & Development v. Illinois Central Gulf Railroad Co., 464 So.2d 401, 403 (La.App. 1 Cir. 1985); Prentice Oil & Gas Co. v. State, Department of Transportation & Development, 421 So.2d 937,939 (La.App. 1 Cir.), writ denied, 423 So.2d 1165 (La. 1982).
Further, although the term "expropriation proceeding" is not defined in LSA-R.S. 19:201, this court has previously noted that the process of expropriation requires that an expropriating authority first attempt good faith negotiations acquire the property. See LSA-R.S. 48:441(A); LSA-R.S. 19:102; Town of Walker v. Stafford, 2001-2188 (La.App. 1 Cir. 10/18/02), 833 So.2d 349, 352, writ denied, 2003-0441 (La. 4/25/03), 842 So.2d 400, and writ denied, 2003-0524 (La. 4/25/03), 842 So.2d 405. Consequently, this court has previously found no abuse of the trial court's discretion in determining that defendant landowners were entitled to recoup attorney's fees for services provided prior to initiation of the expropriation suit, where those efforts by defense counsel were necessary to fully protect the landowners' interests. See Town of Walker, 833 So.2d at 353-54.
DISCUSSION
The City-Parish raises two assignments of error on appeal. The City-Parish's first assignment of error is that the trial court erred in awarding the landowners attorney's fees and costs, because there was no finding that the City-Parish was in bad faith. In support of this argument, the City-Parish argues that St. Tammany, 808 So.2d 576, stands for the proposition that, in the absence of a finding that the City-Parish acted in bad faith, the trial court was without authority to award damages in favor of the landowners, including attorney's fees. We disagree. In St. Tammany, this court affirmed the trial court's award of attorney's fees as authorized pursuant to LSA-R.S. 19:201 following the dismissal of the expropriation suit. The discussion of bad faith in St. Tammany involved the defendant landowner's arguments requesting additional awards for damages for lost rentals, not attorney's fees. See St. Tammany, 808 So.2d at 585. This assignment of error lacks merit.
The City-Parish's second assignment of error is that, even if the landowners were entitled to attorney's fees and costs, the trial court erred in awarding attorney's fees totaling more than three times the value of the land in question in the absence of a finding that the City-Parish was in bad faith. The City-Parish argues that the trial court's award of $100,000.00 in attorney's fees violates the provisions of LSA-R.S. 48:453(E). We disagree. For the reasons set forth above, LSA-R.S. 19:201 is the controlling statute in this matter. Further, a complete reading of the plain language of LSA-R.S. 48:453 clearly demonstrates that it is inapplicable under the circumstances present in this case. Louisiana Revised Statutes 48:453 provides, in full:
A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.
B. The measure of damages, if any, to the defendant's remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
C. The owner shall be compensated to the full extent of his loss. The court shall include in its consideration the difference between the rate of interest of any existing mortgage on an owner-occupied residence and the prevailing rate of interest required to secure a mortgage on another owner-occupied residence of equal value.
D. The defendant shall present his evidence of value first.
E. 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 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.
The starting point in the interpretation of any statute is the language of the statute itself, and a statute shall be construed to give meaning to its plain language. Standard Mortgage Corporation v. Jarrell, 2020-0960 (La.App. 1 Cir. 4/16/21), 324 So.3d 146, 150. The City-Parish argues that LSA-R.S. 48:453(E) restricts an award of attorney's fees to twenty-five percent of the amount the City-Parish deposited in the registry of the court. However, the plain language of LSA-R.S. 48:453(E) explicitly provides that "[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 amount of compensation awarded in the judgment" (Emphasis added). In this matter, the expropriation proceedings were dismissed, and there was no compensation "awarded in the judgment." Thus, LSA-R.S. 48:453(E) is inapplicable to the attorney's fees at issue in this matter. Moreover, the plain language of LSA-R.S. 48:453(A), (B), and (C) further reflect that LSA-R.S. 48:453 is applicable in situations in which an expropriation is successfully completed: LSA-R.S. 48:453(A) provides, in pertinent part, that "[t]he measure of compensation for the property expropriated. LSA-R.S. 48:453(B) provides, in pertinent part, that "[t]he measure of damages... is determined on a basis of immediately before and immediately after the taking"; and LSA-R.S. 48:453(C) provides, in pertinent part, that "[t]he owner shall be compensated to the full extent of his loss..Finally, this reading of the statute is consistent with this court's statement in Johnca Properties, 873 So.2d 693, that LSA-R.S. 48:453(E) "allows the court to base its award only on the difference between the amount deposited and the amount awarded." Johnca Properties, 873 So.2d at 701; see also Illinois Central Gulf Railroad Co., 464 So.2d at 404. This assignment of error lacks merit.
Moreover, as noted above, the trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court's own knowledge. See Rule 1.5(a) of the Rules of Professional Conduct; Hughes v. Cap. City Press, L.L.C., 2021-0201 (La.App. 1 Cir. 12/7/21), 332 So.3d 1198, 1215, writ denied, 2022-00023 (La. 2/22/22), 333 So.3d 444. In this matter, the record before us plainly reflects that Attorney Donahue committed a significant amount of time, money, and work to this matter before ultimately obtaining a favorable result for his clients. Thus, based on our consideration of the aforementioned factors, and our review of the record and the legal services involved, we do not find the trial court abused its discretion by awarding $100,000.00 in attorney's fees to the landowners.
LANDOWNERS' ANSWER TO APPEAL
The landowners filed an answer to the City-Parish's appeal seeking an award of additional attorney's fees for work performed and costs incurred in connection with the instant appeal. Louisiana Code of Civil Procedure article 2133(A) provides, in part, that an appellee who demands damages against the appellant must file an answer to the appeal. Miss Bee's Snoworld, LLC v. Guidry, 2020-0946 (La.App. 1 Cir. 6/18/21), 328 So.3d 477,487. An increase in attorney's fees is usually awarded where a party who was awarded attorney's fees by the trial court is forced to and successfully defends an appeal. To determine the amount of attorney's fees, factors that are considered include "the skill exercised by the attorney and the time and work required on appeal." Zeigler Tree &Timber, Inc. v. Old River of New Orleans, LLC, 2022-1247 (La.App. 1 Cir. 7/5/23) 371 So.3d 82, 94. In this matter, the defendants properly requested additional attorney's fees by filing an answer to the City's appeal, and they successfully defended the appeal. Accordingly, we find that the defendants are entitled to an award of additional attorney's fees for the defense of the appeal in the amount of $2,000.00. See Hughes , 332 So.3d at 1215-1216.
CONCLUSION
For the foregoing reasons, the January 31, 2023 judgment of the trial court is affirmed. The answer to appeal is granted, and the City of Baton Rouge and the Parish of East Baton Rouge are ordered to pay $2,000.00 in additional attorney's fees to Terrence Joseph Donahue and Patricia O'Neal Donahue. Costs of this appeal in the amount of $4,710.50 are assessed to the City of Baton Rouge and the Parish of East Baton Rouge.
AFFIRMED; ANSWER TO APPEAL GRANTED.