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City of Baton Rouge v. R.G. Claitor's Realty

Court of Appeals of Louisiana, First Circuit

December 29, 2017

CITY OF BATON ROUGE AND PARISH OF EAST BATON ROUGE
v.
R.G. CLAITOR'S REALTY, ET AL

         On 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 Presiding.

          Leo J. 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.

          Daniel A. Claitor Lindsay C. Rabalais Baton Rouge, LA, Attorneys for Defendant/ Appellants R.G. Claitor's Realty.

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.

          HOLDRIDGE, J.

         In this 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         On 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.

         On 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.

         On 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 abandonment.[1]

         On 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. 13:4163.[2]

         DISCUSSION

         The version of Louisiana Revised Statute 13:4163 in effect at the time this matter was ...


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