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Acadian Gas Pipeline System v. McMickens

Court of Appeals of Louisiana, Third Circuit

December 28, 2018

ACADIAN GAS PIPELINE SYSTEM
v.
OLIVER LIECHT MCMICKENS, ET AL.

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 257, 060 HONORABLE PATRICIA E. KOCH, DISTRICT JUDGE

          John M. Wilson Kelly Brechtel Becker Katherine Seegers Roth Jaclyn E. Hickman Liskow & Lewis COUNSEL FOR PLAINTIFF/APPELLANT: Acadian Gas Pipeline System

          H. Brenner Sadler Provosty, Sadler, deLaunay, APC COUNSEL FOR DEFENDANTS/APPELLEES: Oliver Liecht McMickens Ricky Loren McMickens Mark R. McMickens Neal L. McMickens Scott A. McMickens

          Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE.

         In this expropriation litigation, the plaintiff, Acadian Gas Pipeline System,, appeals from the trial court judgment in favor of the defendant landowners, denying its expropriation of a right-of-passage servitude through the landowners' property. For the following reasons, we affirm.

         DISCUSSION OF THE RECORD

         On October 10, 2016, the plaintiff, Acadian Gas Pipeline System (Acadian), filed suit, seeking to acquire a perpetual servitude, in the form of a non-exclusive right-of-passage, across a 1, 405-acre tract of land owned by the Defendants, Oliver Liecht McMickens, Ricky Loren McMickens, Mark R. McMickens, Neal L. McMickens, and Scott A. McMickens (referred to collectively as "the Defendants"). The property is located in Rapides Parish, just outside of Alexandria, Louisiana. The purpose of the servitude is to provide Acadian with access to and from its pipeline, which runs from east to west across the southernmost portion of the Defendants' property.

         Following a March 16, 2017 bench trial, the trial court took the matter under advisement, then on August 31, 2017, it issued written reasons for ruling and signed a judgment denying Acadian's expropriation request. Notice of judgment was mailed to the parties on September 1, 2017. On September 12, 2017, Acadian filed a motion for new trial. The next day, the trial court wrote the word "Denied" diagonally across the proposed show-cause order and included the notation, "written reasons given," apparently to indicate that it had issued written reasons for its August 31, 2017 judgment. No hearing was held on the motion for new trial, and no written reasons regarding the motion appear in the appellate record. Subsequently, a hearing was held to address issues involving costs and attorney fees, and those issues were disposed of in a judgment rendered on October 30, 2017. That same day, Acadian filed a motion to appeal the trial court's August 31, 2017 judgment.

         On January 31, 2018, this court issued a rule for Acadian to show cause why its appeal should not be dismissed as being premature. Thereafter, we dismissed Acadian's appeal, finding:

[T]he notation "Denied" written on the rule to show cause order does not constitute a valid judgment. Since the trial court did not conduct a hearing or sign a judgment properly disposing of the motion for new trial, we find that the appeal order signed on October 30, 2017, was premature and that the trial court was not divested of its jurisdiction. Having concluded that we lack jurisdiction over this appeal, we find that the appeal must be dismissed and remanded to the trial court for consideration of Plaintiff s motion for new trial.

Acadian Gas Pipeline System v. Oliver Liecht McMickens, 17-1158, pp. 3-4 (La.App. 3 Cir. 1/31/18) (unpublished opinion).

         On remand, Acadian moved for a judgment denying its motion for new trial, after which the trial court rendered a judgment denying the motion on February 9, 2018. Thereafter, Acadian again filed a motion to appeal the trial court's August 31, 2017 judgment.

         On appeal, Acadian raises three assignments of error committed by the trial court:

1. The trial court erroneously denied expropriation by misallocating the burden of proof, forcing Acadian to prove its good faith and stripping it of the presumption of good faith that, until this decision, an expropriator has enjoyed under Louisiana law.
2. The trial court erroneously denied expropriation by applying the wrong legal standard for expropriation. It discarded the well-established Red River standard for the selection of the location and extent of the property to be expropriated, in favor of criteria that do not exist under Louisiana law.
3. The trial court's errors in denying expropriation resulted in an additional error: the failure to make any factual findings on the just compensation due to the Defendants for the expropriation of their property.

         In response to this appeal, the Defendants filed a motion to strike and for a partial dismissal of Acadian's appeal, arguing that the issue of compensation due to the Defendants was not properly before this court since no judgment was rendered on that issue by the trial court. Acadian opposed this motion, and the matter was referred to the merits of the appeal.

         OPINION

         "Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property." La.Const. art. 1, § 4(A). However, private property is subject to expropriation by a public entity when it is needed "for public purposes" and when just compensation is paid to the owner. La.Const. art. 1, § 4(B)(1). Private entities, when authorized by law, are also entitled to expropriate private property, such as in the case of Acadian, which was created for the purpose of building a pipeline to supply natural gas to the public. La.Const. art. 1 § 4(B)(4); La.R.S. 19:2(5). "[W]hether the purpose" of the expropriation is "public and necessary" is a determination made by the trial court, which finding will not be reversed absent manifest error. La.Const. art. 1, § 4(B)(5); Lafayette City-Parish Consol. Gov't v. Person, 12-307 (La. 10/16/12), 100 So.3d 293.

         The law applicable to expropriation by a private entity was addressed by the supreme court in Exxon Mobil Pipeline Co. v. Union Pacific Railroad Co., 09-1629, pp. 12-13 (La. 3/16/10), 35 So.3d 192, 200, wherein it stated:

In challenges to the necessity of a taking, the landowner must prove that the legislatively-authorized expropriator exercised "its large discretion" arbitrarily, capriciously, or in bad faith. Red River Waterway Com 'n v. Fredericks, 566 So.2d 79, 83 (La. 1990). Whether the expropriator's purpose is public and necessary is a judicial determination that will not be reversed on appeal absent manifest error. Calcasieu-Cameron Hosp. Serv. Dist. v. Fontenot, 628 So.2d 75, 78 (La, App. 3d Cir.1993), writ denied, 94-0168 (La.3/18/94), 634 So.2d 854. In the context of expropriation, "necessary" refers to the necessity of the purpose for the expropriation not the necessity for a specific location. Calcasieu-Cameron Hosp. Serv. Dist., 628 So.2d at 78. Once public necessity is established, the extent and the location of property to be expropriated are within the sound discretion of the expropriation authority and determination of same will not be disturbed by the courts if made in good faith. Id.
The criteria to be considered by the expropriator in determining the location and extent of the property to be expropriated includes factors such as costs, environmental impact, long range area planning, and safety considerations. Red River Waterway Com 'n, 566 So.2d at 83 (citing U.S. v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209 (1946)). The amount of land and the nature of the acreage taken must be reasonably necessary for purpose of the expropriation, but it is not necessary "to show actual, immediate, and impending necessity for the expropriation." City of New Orleans v. Moeglich, 169 La. 1111, 126 So. 675, 677 (1930). The suitability of the property for expropriation is primarily a question of fact on which the judgment of the trial court will not be disturbed unless manifestly erroneous. Board of Com 'rs of New Orleans Exhibition Hall v. Missouri Pacific R. Co., 625 So.2d 1070, 1073 (La.App. 4th Cir.1993), writ denied, 93-3088, 93-3100 (La. 1/28/94), 630 So.2d 802. By statute, expropriation of property for common carrier pipe line purposes may include "the real estate, rights of way, pipe in line, telephone and telegraph lines or other communication systems, tank facilities . . . necessary for the proper conduct of its business as a common carrier, all fixtures, equipment and personal property of every kind owned, controlled, operated, used or managed, in connection with, or to facilitate the transportation, distribution and delivery of petroleum through lines constructed of pipe." La.Rev.Stat. 45:251(3) (emphasis supplied).

         In Calcasieu-Cameron Hospital Service District v. Fontenot, 628 So.2d 75, 78-79 (La.App. 3 Cir. 1993), writ denied, 94-168 (La. 3/18/94), 634 So.2d 854, this court further explained:

[T]he extent and location of the property to be expropriated are within the sound discretion of the body possessing the power of eminent domain, and these determinations will not be interfered with by the courts if made in good faith. Greater Baton Rouge Port Comm 'n. v. Watson, [244 La. 136');">244 La. 136, 68 So.2d 901 (1953)]; Board of Comm'rs. of Tensas Basin Levee Dist. v. Franklin, 219 La. 859, 54 So.2d 125 (1951); Evangeline Parish Police Jury v. Deville, [247 So.2d 258 (La.App. 3d Cir. 1971)]. Questions such as the location of the expropriation, the extent of the property taken, the nature of the title to be taken, and the wisdom of pursuing the particular improvement project relate to the necessity of the taking. The standard is whether the expropriator, in selecting the location and extent of the property to be expropriated, acted in bad faith or so capriciously or arbitrarily that its action was without an adequate determining principle or was unreasoned. Criteria to be considered by the expropriator include the availability of an alternate route, costs, environmental factors, longrange area planning, and safety considerations. The expropriating agency may abuse its discretion by acting without considering and weighing the relevant factors, that is, by acting arbitrarily. Red River Waterway Comm'n. v. Fredericks, 566 So.2d 79 (La. 1990), and authorities cited therein. However, the mere availability of a feasible alternative location is not, by itself, an indication that the expropriator has acted arbitrarily or capriciously in making its selection. Faustina Pipe Line Co. v. Levert-St. John, Inc., 463 So.2d 964 at 969 (La.App. 3d Cir.), writ denied, 466 So.2d 1301 (La. 1985), quoting Louisiana Resources Co. v. Stream, 351 So.2d 517 (La.App. 3d Cir.1977).

         The standard of review applicable to civil matters was stated by this court in Moncriefv. Succession of Armstrong, 05-1584, p. 10 (La.App. 3 Cir. 9/27/06), 939 So.2d 714, 720, as follows:

The standard of appellate review of factual findings in a civil action is the manifest error/clearly wrong standard, and factual findings should not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO,549 So.2d 840 (La. 1989). If the trial court's findings are reasonable in light of the record reviewed in its entirety, the reviewing court may not reverse. Sistler v. Liberty Mut. Ins. Co.,558 So.2d 1106 (La.1990). Consequently, when there are ...

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