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City of Baton Rouge v. Territo

Court of Appeals of Louisiana, First Circuit

June 22, 2017

CITY OF BATON ROUGE AND PARISH OF EAST BATON ROUGE
v.
PETER A. TERRITO, JR.

         Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 595, 443 Honorable Timothy E. Kelley, Judge

          Leo J. D'Aubin Baton Rouge, LA Counsel for Plaintiff-Appellee City of Baton Rouge/Parish of East Baton Rouge

          David M. Ellison, Jr.Oliver Scott Ellison Baton Rouge, LA Counsel for Defendant-Appellant Peter A. Territo, Jr.

          BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.

         

          GUIDRY, J.

         This appeal raises the res nova issue of whether in an expropriation proceeding, abandonment can accrue against an allegedly unperfected claim. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On October 5, 2010, the City of Baton Rouge and Parish of East Baton Rouge (City-Parish) filed a petition to expropriate a portion of a tract of land owned by Peter A. Territo, Jr. in East Baton Rouge Parish for the Green Light Plan - Staring Lane (Highland Road to Perkins Road) Improvements project (Green Light project) as authorized by the Metropolitan Council of the Parish of East Baton Rouge and City of Baton Rouge. On October 14, 2010, the trial court signed an order decreeing expropriated the portion of Mr. Territo's land identified by the City-Parish for the Green Light project and directing the City-Parish to deposit the sum of $25, 329.00 into the registry of the court and Mr. Territo to surrender possession of the property. In accordance with the court's order, the City-Parish deposited $25, 329.00 in the registry of the court on October 22, 2010.

         On November 9, 2010, Mr. Territo filed an answer to the City-Parish's petition, contesting the City-Parish's right to expropriate a portion of his property and contending that the amount of $25, 329.00 paid in just compensation is "wholly inadequate and should be increased." Specifically, in his answer, Mr. Territo alleged:

Prior to the taking herein, Defendant was the owner of the entirety [of] Lot A, resubdivision of Lots 33 and 34, Staring Property, as described in the petition on which was a residence and other improvements including, but not limited to, extensive landscaping and trees. Defendant's property was located in a quiet neighborhood of closely knit neighbors and the taking, if allowed, will destroy the character of his property and the neighborhood, will decrease the value of Defendant's remaining property, will destroy old and valuable live oak trees and other shrubbery and improvement for which he should be compensated. Defendant has engaged an appraiser but has not yet received a report and reserves the right specifically to claim additional compensation upon being furnished with such a report or for that matter reports.

         On February 7, 2011, the trial court issued an order to allow Mr. Territo to withdraw the deposited sum of $25, 329.00 plus accumulated interest from the registry of the court. JPMorgan Chase Bank then intervened in the action, contending that it was the holder of a promissory note secured by a mortgage on the property at issue, and hence, it asserted its right to the amount of just compensation deposited in the registry of the court and "to any amended amount that is determined to be just and fair compensation." Mr. Territo eventually withdrew the sum of $25, 424.55 from the registry of the court on February 4, 2014.

         No further action was taken in the trial court until June 12, 2015, when Mr. Territo filed a motion requesting a status conference. In turn, the City-Parish filed a "Motion for Final Judgment and Dismissal for Abandonment, " averring that "any claim for an increase in compensation in this matter has been abandoned as provided by [La.] R.S. 48:452.1." Accordingly, the City-Parish requested that the trial court render final judgment awarding Mr. Territo the amount deposited in the registry of the court as just compensation and dismiss with prejudice any claim for an increase in compensation.

         A hearing on the City-Parish's motion for abandonment was held on February 29, 2016, following which the trial court granted the motion. In a judgment signed April 11, 2016, the court decreed Mr. Territo's claim for additional compensation abandoned and fixed just compensation as the amount deposited in the registry of the court. After the trial court denied his motion for new trial, Mr. Territo filed a motion to devolutively appeal the April 11, 2016 judgment, which was granted by the trial court. Once the matter was lodged with this court, however, it was observed that the judgment appealed appeared to be defective in that it did not specify the amount of compensation deposited in the registry of the court. Hence, this court issued an order to the parties to show cause why the appeal should not be dismissed and further remanded the matter to the ...


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