Opinion
No. 2010 CW 2325.
June 10, 2011. NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TANGIPAHOA, LOUISIANA TRIAL COURT NUMBER 2007-0001900 HONORABLE ELIZABETH P. WOLFE, JUDGE.
Charles G. Blaize, Jr., Jamie S. Manuel, Baton Rouge, LA, Attorneys for Plaintiff — Appellee, Gray Company, Inc.
James L. Bradford, III, D. Stephen Brouillette, Jr., Covington, LA, Attorneys for Defendant — Appellant, State of Louisiana, DOTD.
BEFORE: CARTER, C.J., GAIDRY AND WELCH, JJ.
Defendant, the State of Louisiana, Department of Transportation and Development, appeals a partial summary judgment entered in favor of plaintiff, Gray and Company, Inc., awarding Gray $245,000.00 in damages for the loss of access to its property resulting from a public works project. We find that the trial court erred in certifying the judgment as immediately appealable, but exercise our supervisory jurisdiction and reverse the partial summary judgment.
BACKGROUND
Some of the facts forming the background for this inverse condemnation lawsuit are not disputed. Gray is the owner of a 307-acre tract of land in Tangipahoa Parish bounded by the Tangipahoa River and by property owned by two adjoining landowners. The property was previously bounded on the south by a section of Louisiana Highway 440 that ran from the Tangipahoa River to a point just past where it intersects with Louisiana Highway 1054. Gray's only access to the property was by a small bridge that ran from Highway 440 and crossed Spring Creek.
In 2005 or 2006, DOTD began construction of State Project Number 276-03-0016, which entailed the rerouting of Highway 440 and the of an elevated bridge across the Tangipahoa River and other waterways. Included in the project was the removal of a portion of then existing Highway 440 from its intersection with Highway 1054 to the Tangipahoa River, as well as the removal of the bridge traversing Spring Creek. It is undisputed that after the completion of the project and the rerouting of Highway 440, Gray's access to its property was lost and its property became landlocked.
On June 21, 2007, Gray filed this inverse condemnation lawsuit against DOTD, asserting that due to the loss of access and loss of road frontage caused by the removal of the section of Highway 440 and the bridge over Spring Creek, it has been substantially damaged by the loss of its property for commercial and recreational purposes and by a substantial diminution in the present and future value of the property. It sought to recover all damages resulting from the loss of its access to the property and the loss of frontage thereon. Additionally, Gray requested that the court order DOTD to provide it with convenient access from the property, in addition to holding DOTD liable for the amount of money it would cost to build a road to provide Gray with access to its property. Lastly, Gray sought to recover costs and attorney fees.
On July 16, 2009, Gray filed a motion for summary judgment, asserting that the facts were uncontested and the law entitled it to judgment as a matter of law. It asked the court to render summary judgment in the following respects: (1) judgment in the amount of $245,960.00, representing the estimated cost to construct a bridge over Spring Creek to reestablish its access to the subject property; (2) judgment granting it a servitude of passage or the ownership of the roadbed of the removed section of Highway 440 because the point at which it could construct a new bridge over Spring Creek is only accessible from that roadbed; (3) judgment ordering DOTD to pay it $154,386.55 as compensation for the value of the marketable timber that Gray was unable to harvest due to DOTD's demolition of Highway 440; (4) judgment ordering DOTD to compensate Gray for the reasonable attorney fees and costs of experts expended in bringing this litigation; and (5) judgment granting Gray all general and equitable relief to which it may be entitled.
In support of the motion, Gray attached the affidavit of Louis S. Crews, Jr., one of its employees, an appraisal report prepared by real estate agent Richard L. Murphy, the affidavit of Ronnie Rabalais and his cost replacement study, and the affidavit of Keith M. Frazier and his summary value report. Gray listed the issues to be tried on the motion for summary judgment as whether DOTD is liable for the cost to reestablish its access to the property by a bridge, the cost of lost downloaded marketable timber that Gray was in the process of removing at the time its access was taken, whether DOTD must grant a servitude of passage or ownership of the roadbed so that Gray may access the point at which the new bridge is constructed, and whether DOTD is liable for costs, including the costs of experts and attorney fees incurred in bringing this action.
In his affidavit, Mr. Crews, who manages the tract of land on behalf of Gray, gave an account of the facts leading up to the litigation with respect to DOTD's removal of Gray's access points to its property. Gray also submitted an appraisal report prepared by Mr. Murphy on behalf of DOTD. Mr. Murphy had been hired by DOTD to determine the measure of compensation owed to Gray by DOTD as a result of the construction project. In his report, Mr. Murphy opined that that the diminution in value of the subject property is $245,000.00, which he recommended as compensation for real property losses. The report reflects that Mr. Murphy was asked to also provide the market value of an adjacent parcel of property for a possible cure to the lack of access. Mr. Murphy identified a 1.61 acre tract fronting Highway 1054, adjacent to the subject tract, which could give the Gray property access to a public road. He opined the property had a market value of $16,100.00, and that if this property could be acquired at this price, the damages to the subject property could be feasibly cured at considerably less cost.
The remaining evidence relied on by Gray in support of its motion for summary judgment on the issue of damages for loss of access is the affidavit and report of Mr. Rabalais, who manages a division of a company that estimates construction costs. Mr. Rabalais estimated the cost of constructing a bridge from the adjacent state highway to a "reasonable point of access" to the property to be $245,960.00.
In opposition to the motion for summary judgment, DOTD asserted that there were substantial issues of genuine fact in the litigation precluding the trial court from granting Gray a judgment as a matter of law. DOTD acknowledged that Louisiana law provides that loss of access because of a public works project is a compensable damage in an inverse condemnation action. See Taylor v. State Through Department of Transportation and Development, 95-1318, pp. 6-7 (La. App. 3rd Cir. 3/6/96), 670 So.2d 699, 703. It urged, however, that the measure of damages owed to Gray for the loss of access was a disputed issue of material fact. DOTD argued that Gray had a legal duty to mitigate its damages, that duty included taking legal action if necessary against the adjoining landowners, and by failing to take any legal action to obtain access to its landlocked property, Gray failed to mitigate its damages. DOTD also urged that summary judgment was improper on Gray's damage claims as there were genuine issues of material fact on the amount of those damages.
In opposition to the motion, DOTD offered the affidavit of its employee, Michelle Fitzgerald, who attested that she extended a purchase offer on behalf of DOTD to an owner of property adjacent to the Gray tract which would provide Gray with access to its property and contacted other owners, but despite her best efforts, none of the property owners were willing to sell a portion of their property to DOTD. DOTD also offered two damage calculations, depending on whether access could be provided by a servitude or not. It relied on Mr. Murphy's calculation for a total loss of access to the subject property in the amount of $245,000.00. It also presented evidence on the cost to cure the loss of access if property could be purchased from an adjoining landowner, as well as the cost of constructing a driveway access to Gray's property from Louisiana Highway 1054. Jesse McClendon, who works in DOTD's engineering division, attested that his department prepared three surveys depicting access routes from Highway 1054 across an adjoining landowner's property to Gray's property. According to these surveys, he stated, an access driveway could be constructed across that property on less than a half acre. Mr. McClendon estimated the cost of constructing the roadway to be $149,900.00. Mr. Murphy, who was requested by DOTD to provide an opinion as to the cost of obtaining a perpetual servitude over the property, offered his opinion that a perpetual servitude over the adjacent property would cost $10,000.00 per acre.
At the hearing on the motion for summary judgment, Gray's attorney argued that the only alternative available to allow it to access the public road from its property was the construction of a bridge over Spring Creek. The attorney made it clear that Gray was seeking the cost to construct the bridge and was seeking a servitude or ownership of the roadbed of Highway 440 where it reached Highway 1054, which, he claimed, would allow Gray to pave a road, put up a fence, and access its property.
DOTD opposed the motion for summary judgment on the basis that there were different valuations submitted on the issue of damages, arguing that the cost of constructing a bridge on the property and the cost of obtaining access to the property over an adjoining property by a servitude were substantially different. Gray's attorney acknowledged that while its expert estimated the cost of construction of the bridge is more than $245,000.00, it was willing to accept the lesser amount of $245,000.00, the diminution in value set forth by DOTD's appraiser if access over an adjoining property could not be obtained.
The trial court granted Gray's motion for summary judgment in part, finding that Gray was entitled to judgment on its inverse condemnation claim against DOTD in the amount of $245,000.00 in order for Gray to reestablish its access to the property. The court further ordered DOTD to compensate Gray for the reasonable attorney fees and costs of its experts incurred in the litigation to date related to the successful inverse condemnation claim, with the exact amount to be shown in an additional motion to be filed before the court. The court denied Gray's motion with respect to its demand for compensation for the loss of marketable timber on the basis that genuine issues of material fact existed on that claim. Lastly, the court, after determining that there is no just reason for the delay, certified that the judgment is a final one for the purposes of an immediate appeal as set forth in La.C.C.P. art. 1915(B)(1).
CERTIFICATION
Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indemnity Corporation, 2002-0716, p. 4 (La. App. 1st Cir. 4/30/03), 867 So.2d 715, 717. A partial summary judgment rendered pursuant to La.C.C.P. art 966(E) may be immediately appealed during on ongoing litigation only if it has been properly designated as a final judgment by the trial court. La.C.C.P. art. 1915(B). Although the trial court designated the partial summary judgment to be a final judgment under Article 1915(B), that designation is not determinative of this court's jurisdiction. Van ex rel White v. Davis, 2000-0206, p. 2 (La. App. 1st Cir. 2/16/01), 808 So.2d 478, 480. This court must make a determination whether appellate jurisdiction exists to review the partial judgment appealed from. Because the trial court did not give reasons for certifying the judgment as immediately appealable, we must make a de novo determination of whether the certification was proper, considering the criteria set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664, pp. 13-14 (La. 3/2/05), 894 So.2d 1113, 1122.
Historically, our courts have a policy against multiple appeals and piecemeal litigation. Article 1915(B) attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review at a time when it best serves the needs of the parties. Thus, in considering whether a judgment is properly designated as a final one pursuant to Article 1915(B), a trial court must take into account judicial administrative interests as well as the equities involved. R.J. Messinger, Inc., 2004-1664 at p. 13, 894 So.2d at 1122. Some of the factors a trial court should take into account in making the certification determination include: (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the trial court; (3) the possibility that the reviewing court may have to consider the same issue a second time; and (4) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. In designating a judgment as final, the overriding inquiry is whether there is no just reason for the delay. R.J. Messinger, Inc., 2004-1664 at p. 14, 894 So.2d at 1122-23.
In the instant case, it is undisputed that DOTD's public works project caused Gray to lose access to its property. The issue to be resolved at trial was the proper measure of damages owed to Gray for that loss. Gray's motion for summary judgment sought to obtain from DOTD: (1) the cost of constructing a bridge over Spring Creek; (2) a servitude over the roadbed formerly occupied by the section of Highway 440 that was removed; (3) losses from downed timber on the property that could no longer be removed from the property; and (4) attorney fees and costs. The judgment appealed from awards Gray only monetary damages for its loss of access to the property, but leaves for adjudication the issue of whether Gray is entitled to a servitude of passage should it decide to construct a bridge with the proceeds, and whether the loss of access caused Gray to lose timber revenues. We believe that allowing an immediate appeal from a judgment deciding a single element of damages in a lawsuit where multiple elements of damages are sought, that are all based on the same wrongful conduct giving rise to the lawsuit, only encourages multiple appeals and piecemeal litigation, causing unnecessary delay in the resolution of the lawsuit. We find no compelling reasons for certifying the judgment as final and immediately appealable that would outweigh these judicial administrative interests. Therefore, we find that the trial court erred in certifying the judgment as a final one for the purpose of an immediate appeal. However, we believe that this case is an appropriate one for the exercise of this court's supervisory jurisdiction. Under Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981), the Supreme Court determined that it is appropriate for an appellate court to exercise supervisory jurisdiction when the ruling of the trial court is arguably incorrect, a reversal will terminate the litigation, and the interests of judicial efficiency and fundamental fairness to the parties will be served by the assertion of this court's supervisory jurisdiction. We find that the summary judgment appealed, which awarded damages at the summary judgment stage where there were multiple estimates based on differing factual scenarios, is arguably incorrect, and that the interests of justice may best be served by asserting our plenary power to exercise supervisory jurisdiction at this time. For these reasons, we convert the appeal to an application for supervisory review and address the merits of the matter. See Latiolais v. Jackson, 2006-2403, p. 5 (La. App. 1st Cir. 11/2/07), 979 So.2d 489, 492.
SUMMARY JUDGMENT
A summary judgment is reviewed de novo on appeal, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant and using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Hines v. Garrett, 2004-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765; Samaha v. Rau, 2007-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83. A motion for summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(C). In ruling on a motion for summary judgment, a trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines, 2004-0806 at p. 1, 876 So.2d at 765.
DOTD argues that the trial court erred in granting a partial summary judgment to Gray, asserting that there are genuine issues of material fact regarding both the measure of Gray's damages and whether Gray mitigated its damages. We agree.
Under the doctrine of mitigation of damages, an injured person has a duty to take reasonable steps to minimize his or her loss. Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064, 1071 (La. App. 1st Cir.), writs denied, 433 So.2d 1056, 1057 (La. 1983). In Naquin v. Department of Transportation and Development, 604 So.2d 62, 67 (La. App. 1st Cir.), writ denied, 608 So.2d 169 (La. 1992), this court recognized the legitimacy of this defense in inverse condemnation cases, stating that in such cases, the one sustaining the loss is obligated to minimize his damages as much as possible. The determination of whether a party has exercised reasonable efforts to mitigate his damages is ultimately a question of fact for the trier of fact's consideration. Williams v. Rubicon, Inc., 2001-0074, p. 6 (La. App. 1st Cir. 2/15/02), 808 So.2d 852, 859, writ granted and denied as improvidently granted, 2002-0802 (La. 6/7/02), 818 So.2d 766, 2002-0802 (La. 12/4/02), 833 So.2d 942, cert. denied, 540 U.S. 812, 124 S.Ct. 54, 157 L.Ed.2d 25 (2003).
In response to Gray's motion for summary judgment, DOTD did not contest that Gray was damaged by a loss of access. However, the parties disputed the proper measure of damages to cure the loss of access. Gray insists that the only option is the construction of a bridge across Spring Creek near where it was previously located at an estimated cost of $245,960.00. However, DOTD argues that Gray could demand a legal servitude of passage from the adjoining property owners pursuant to La.C.C. art. 689, which gives the owner of an enclosed estate the right to claim passage over neighboring property to the nearest public road. DOTD contends that its evidence showed that the cost to cure the loss of access should a servitude of passage over an adjoining neighbor's property, either amicably or compelled, is significantly less than the cost of constructing a bridge, as reflected in Mr. McClendon's affidavit. Therefore, DOTD posits, because the issue of mitigation involves a determination as to the reasonableness of Gray's action or inaction and the resolution of that issue will determine the appropriate measure of Gray's damages, summary judgment was inappropriate.
DOTD relies on two cases in support of its mitigation argument. In Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970) and Bailey v. McNeely, 2005-629 (La. App. 3rd Cir. 12/30/05), 918 So.2d 1124. In Rockholt, the plaintiffs, whose property became landlocked after DOTD expropriated a portion of the property to construct an interstate, filed a lawsuit against an adjoining property owner seeking a servitude of passage afforded to the owner of an enclosed estate by the Louisiana Civil Code. The defendant property owner argued that because DOTD fully compensated the plaintiffs for the loss of their ingress and egress to their property in their compensation lawsuit, the plaintiffs should not be entitled to invoke the right of passage provided for in the Civil Code. The court rejected this argument, finding that public policy dictated that the property, located in a strategic and desirable area, not be taken out of use and commerce. In Bailey, the plaintiffs' property became enclosed after it had been expropriated and part of it was flooded for the creation of a lake, leaving it with no access to a public road. The plaintiffs filed a petition for servitude of passage against an adjoining property owner that had access to a public road. The court rejected the argument that access to the public road should be provided by the entity causing the enclosure, not a neighboring estate. The court observed that the legal duty to provide the servitude of passage on the owner of neighboring property arose from the application of Article 689, whereas the public entity, which did not own the neighboring property, had no legal authority to accomplish the same.
It is true that neither of these cases squarely hold that a landowner in a inverse condemnation action has a duty to mitigate its damages by seeking passage from a neighboring landowner pursuant to Article 689. However, these cases demonstrate that despite the fact that property becomes enclosed as a result of government action, a landowner whose access to land is lost through government action may still invoke Article 689 to demand a right of passage. Since that legal remedy is available to the landlocked property owner and because DOTD's evidence showed that this option of establishing access to the property would cost significantly less than the construction of a bridge, we believe it is a fact that should be considered in determining the measure of Gray's damages for the loss of access to its property.
As we have found that Gray's failure to seek legal redress against the adjoining property owners is a fact that may be considered in determining Gray's damages, it is clear that summary judgment on the issue of damages was inappropriate. DOTD presented two calculations on the damage issue. The first assumed that Gray could not obtain alternative access to the property and set the diminution in value from the loss of access at $245,000.00. The second calculation assumed Gray could acquire a servitude from a neighboring landowner, estimating the cost to construct a road and purchase the servitude to be less than $160,000.00. Gray offered its expert opinion that it would cost $245,960.00 to construct a bridge. On the motion for summary judgment stage, the trial court had affidavits and reports from expert witnesses, who set forth different damage calculations based on different scenarios. Where, as here, the testimony of expert witnesses differs, the trier of fact is required to make a credibility determination. The trial court erred in selecting one of those conflicting calculations as the proper measure of Gray's damages at the summary judgment stage.
For the above reasons, we conclude that the trial court erred in granting Gray a partial summary judgment on the issue of damages resulting from the loss of access to its property by DOTD's public works project. The partial summary judgment awarding Gray and Company, Inc. $245,000.00 is hereby reversed. We remand the case to the trial court for proceedings consistent with this opinion.