Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana No.
C584O32, Sec. 22, The Honorable Timothy E. Kelley, Judge
D' Aubin A. PManint William R. Aaron Maimuna Magee Baton
Rouge, LA, Attorneys for Plaintiff/Appellee City of Baton
Rouge/Parish of East Baton Rouge.
A. Claitor Lindsay C. Rabalais Baton Rouge, LA, Attorneys for
Defendant/ Appellants R.G. Claitor's Realty.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
expropriation proceeding, R.G. Claitor's Realty
(Claitor's) appeals a judgment denying its motion to set
aside the dismissal of its demand for additional compensation
against The City of Baton Rouge and Parish of East Baton
Rouge (City/Parish). We affirm.
AND PROCEDURAL BACKGROUND
October 29, 2009, the City/Parish filed a lawsuit against
Claitor's seeking to expropriate a parcel of property
owned by Claitor's in East Baton Rouge Parish. The
City/Parish deposited the sum of $247, 625.00 as just
compensation for the property into the registry of the court.
An order of expropriation was entered on November 3, 2009,
entitling Claitor's to withdraw $247, 625.00 from the
registry of the court subject to certain conditions. On
December 18, 2009, Claitor's filed an answer to the
petition in which it alleged that the amount paid into the
registry of the court by the City/Parish did not represent
just compensation for the full extent of its loss as the
result of the expropriation.
January 6, 2010, Claitor's filed a petition to withdraw
funds in the registry of the court. On that day, the trial
court issued an order requiring the City/Parish to pay
Claitor's $247, 625.00 without prejudice to either
parties' rights to contest and litigate the issue of just
compensation. On January 26, 2010, Claitor's filed a
partial release authorizing the Baton Rouge Parish Clerk of
Court to cancel any mortgages on the subject property. On
January 29, 2010, a mortgage certificate was filed into the
record in the proceedings.
August 1, 2016, the City/Parish filed a motion for dismissal
for abandonment under La. R.S. 48:452.1. Louisiana Revised
Statute 48:452.1 provides for a specific period of
abandonment of an additional compensation claim in an
expropriation proceeding. It states: "An owner's
claim for an increase in the compensation is perfected when
he timely files his answer...and is thereafter abandoned when
he fails to take any step in the prosecution of that claim
for a period of three years." In support of its motion,
the City/Parish presented an affidavit of its attorney who
attested that to his knowledge and belief, no step had been
timely taken in the prosecution of the claim for an increase
in compensation for a period of three years after the answer
had been filed.
August 4, 2016, the trial court entered a final judgment
fixing just compensation in the amount deposited in the
registry of the court, awarding that sum to Claitor's as
just compensation, and dismissing, with prejudice, any claim
for any increase in compensation. Claitor's filed a
motion to set aside the dismissal on September 22, 2016,
asserting that its attorney, Daniel Claitor, is an elected
member of the Louisiana Senate and that his participation in
legislative sessions suspended the accumulation of time for
the purposes of abandonment of its claim for additional
compensation pursuant to La. R.S. 13:4163. Louisiana Revised
Statute 13:4163 sets forth the procedural requirements for
invoking a peremptory legislative continuance or extension of
various proceedings, including civil cases. Claitor's
submitted that it propounded discovery to the City/Parish on
November 6, 2012, and since that time, there had been a total
of 336 days during which the legislative sessions were
convened, in all of which Senator Claitor participated.
According to Claitor's calculations, its demand for
additional compensation would not be abandoned until three
years had passed from its November 6, 2012 discovery request,
plus the 336 days in which time was suspended under La. R.S.
13:4163 for the days Senator Claitor was in legislative
session. Under Claitor's calculation, the matter would
not be deemed abandoned until October 7, 2016. Therefore,
Claitor's urged, the City/Parish's motion for a
dismissal for abandonment, filed prior to that date on August
1, 2016, was premature. Claitor's supplemented its motion
to set aside the dismissal with a judgment of another
division of the 19th Judicial District Court dated
December 12, 2016. In that case, a different trial judge
granted the motion of the Claitor Children to set aside a
judgment of dismissal on the basis of abandonment rendered in
favor of the City/Parish upon finding that La. R.S. 13:4163
applied to the running of time for purposes of abandonment
and that the matter had not been abandonment at the time of
the court's signing of the judgment of
January 31, 2017, the trial court entered a "partial
final judgment" denying Claitor's motion to set
aside the dismissal of its claim and certifying the judgment
as a final judgment. Claitor's appealed the January 31,
2017 judgment, asserting that the accrual of time for
abandonment pursuant to La. R.S. 48:452.1 was suspended
during the state's legislative sessions, in which its
attorney participated, pursuant to La. R.S.
version of Louisiana Revised Statute 13:4163 in effect at the
time this matter was ...