STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
MOTIVA ENTERPRISES, LLC STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
DR. COLDWELL DANIEL, III, ET AL
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NOS. 643-350, 636-170,
DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA,
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT James L.
Bradford, III D. Stephen Brouillette, Jr.
COUNSEL FOR DEFENDANT/APPELLANT, MOTIVA ENTERPRISES, LLC
Kelly B. Becker Matthew D. Simone Kathryn Z. Gonski Trinity
composed of Judges Fredericka Homberg Wicker, Marc E.
Johnson, and John J. Molaison, Jr.
E. JOHNSON JUDGE.
expropriation case, Plaintiff-in-reconvention, Motiva
Enterprises, LLC, appeals the trial court's judgment
granting a directed verdict in favor of the State of
Louisiana, Department of Transportation and Development
("DOTD"), dismissing all of Motiva's
reconventional claims with prejudice. Because we find Motiva
failed to offer sufficient evidence to satisfy its burden of
proving damages, we affirm the judgment.
& PROCEDURAL HISTORY
lawsuit arises out of a construction project involving the
intersection of Causeway Blvd. and Veterans Blvd. in Metairie
that began in 2009 and ended in 2012. In connection with the
project, the DOTD filed suit in 2006 to expropriate land for
purposes of the construction project. Specifically, it sought
to permanently take four feet of land for the project and to
use an additional ten feet of the land for a temporary
servitude during construction.
land at issue was owned by Dr. Coldwell Daniel, III, who
leased it to Shell Oil Company in 1957, which later, in 1998,
assigned the lease to Motiva Enterprises, LLC (a company
formed from a partnership between Shell and Texaco). At the
time of trial, the lease was still in existence and contained
several five-year option periods to extend the lease through
2025. The lease gave Shell - and then Motiva by assignment -
the exclusive right to build on the site and to use the site
for a gas station.
the expropriation at issue and prior to the beginning of the
construction project, Shell decided to exit the retail
business and move strictly to a wholesale supply business. To
accomplish this, Shell sought to divest itself of all the gas
stations it owned and operated, as well as those it leased to
third parties, across the country by packaging up each of its
markets into a series of bulk sales to third parties, whereby
Shell would maintain the supply relationship to the buyer.
The New Orleans area bulk sale included the Shell station at
issue, which was located at the intersection of Causeway
Blvd. and Veterans Blvd. and situated on the land involved in
the expropriation. Shell solicited bids for the bulk sale by
first generating an information memorandum describing the
market and the assets, and selecting certain bidders. Shell
then made available to the selected bidders a template of the
purchase and sale agreement and an electronic data room where
the bidders could review information regarding the sites -
such as environmental reports and existing leases, and
invited the bidders to submit a bid.
winning bid for the New Orleans area bulk sale came from
LavigneBaker Petroleum, LLC, a Shell wholesaler, in the
amount of $37 million. In December 2007, Shell and
LavigneBaker entered into an Asset Purchase and Sale
Agreement for 52 Shell branded retail service stations in the
New Orleans area, including the site involved in the
expropriation. In the Asset Purchase and Sale Agreement,
LavigneBaker acknowledged that the agreed upon purchase price
reflected the fact that the site at issue was subject to a
public taking. As part of the sale, LavigneBaker was required
to enter into a separate Branding and Product Purchase
Commitment Agreement, wherein it agreed to purchase a minimum
volume of gasoline from Shell for the purchased sites, which
it signed in February 2008.
to the sale, in August 2006, the DOTD filed an expropriation
lawsuit against Dr. Daniel, as owner of the land sought to be
expropriated, and Shell Oil Company, as lessee of the land at
issue. The DOTD estimated just compensation for the taking to
be $28, 255, which it sought to deposit into the registry of
the court. An order of expropriation was signed by the trial
court on August 30, 2006. Thereafter, the parties stipulated
that Motiva Enterprises, LLC ("Motiva") was the
proper lessee of the land at issue and that Motiva would be
named in place of Shell Oil Company.
separate lawsuit, filed in April 2007 and amended in May
2007, the DOTD filed an expropriation petition against Motiva
seeking to acquire certain improvements, including a
self-illuminated sign, concrete paving and curbing, and
landscaping, allegedly owned by Motiva that were located
within a certain right of way needed for the construction
project. The DOTD estimated the just compensation for these
improvements to be $29, 510. An order of expropriation was
signed by the trial court on April 4, 2007. On motion of
Motiva, the two lawsuits were consolidated.
April 13, 2007, the DOTD and Dr. Daniel filed a joint
petition indicating they had reached a settlement in
connection with the expropriation, with Dr. Daniel agreeing
to accept $25, 350 as a final award of just and adequate
compensation for the expropriated property. A judgment
confirming the settlement was signed on April 19, 2007.
subsequently filed an answer and reconventional demand. In
its reconventional demand, Motiva alleged it operated a gas
station/convenience store on a portion of the expropriated
property. Motiva asserted that it would not be able to
conduct its business from this location in its post-taking
condition. Specifically, Motiva alleged it would not be able
to safely operate its dispensing units on the Causeway Blvd.
side of the business, which would greatly impact the
continued operation of the station. Motiva averred it was
entitled to be compensated to the full extent of its economic
loss, including lost profits.
two and one half years later, in March 2010, Motiva amended
its reconventional demand to indicate that it had assigned
its interests in the subject property and improvements to
LavigneBaker in February 2008. Motiva claimed that it
assigned its rights at a greatly reduced price due to the
diminution in value of the property caused by the
expropriation and the anticipated loss of economic revenue
during the construction. As such, Motiva sought damages for
diminution of property value and lost profits caused by the
expropriation. In November 2017, Motiva supplemented its