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SUPREME COURT OF LOUISIANA
No. 96-C-0145

HUEY J. RIVET, ET AL. versus STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, STATE OF LOUISIANA

KIMBALL, J.*
ISSUE We granted the State of Louisiana, Department of Transportation and Development ("DOTD")'s writ in this inverse condemnation suit to determine: (1) whether landowners in a proposed subdivision whose land has suffered a decrease in value due to DOTD's denial of a permit for driveway access from the proposed subdivision to a public highway may recover damages for streets and greenways previously dedicated to a Parish and/or for lots within the tract acquired after the date of DOTD's denial of the permit; and (2) whether attorney fees in the amount of 25% and expert fees in the amount of $15,000.00 per expert were properly awarded to plaintiff landowners. However, because our examination of the record in this matter shows that the court of appeal's initial decision reversing the trial court's judgment awarding damages for the dedicated streets and greenways and for lots not owned by anyone party to the instant suit at the time of DOTD's denial of the permit is a final judgment in part on the merits, we hold the trial court on remand did not have the power or authority to award damages for the dedicated streets and greenways or for any lots acquired by plaintiff landowners after the denial of the permit. We therefore do not reach the merits of the first issue which prompted us to grant this writ. Instead, we vacate the decisions of the trial court on remand and the court of appeal on appeal after

*

Lemmon, J., recused.

remand, and remand the matter to the trial court to adjust the damages award in accordance with the court of appeal's final judgment by making specific factual findings as to the total amount of acreage of the tract, the amount of acreage occupied by the streets and greenways and the 29 lots not owned by anyone party to the suit at the time of DOTD's denial of the permit and, using its original damage award of $3,099,264.00, to calculate the damages awarded on a per acre basis, deducting the value of the acreage occupied by the streets and greenways and the 29 lots from the original damage award.

We further hold that, given the specific language of La. R.S. 13:5111, the statutory authorization for an award of attorney fees in an appropriation or inverse condemnation suit, the trial court erred both in awarding attorney fees absent record evidence as to the amount of attorney fees actually incurred by plaintiffs' attorneys and in awarding attorney fees as a percentage of the judgment amount. We therefore also remand for a hearing to allow plaintiff landowners to introduce evidence as to their attorney fees actually incurred and for the trial court to thereafter assess and fix the attorney fees award by determining an actual dollar amount to be awarded in accordance with La. R.S. 13:5111.

FACTS AND PROCEDURAL HISTORY On August 10, 1973, V.I.P. Corporation ("V.I.P.") purchased a large tract of land in St. Charles Parish, measuring approximately 110 acres1, from Bar None, Inc. for $400,000.00. This tract of land, which bordered on Highway 61 (Airline Highway) near existing residential subdivisions, was purchased by V.I.P. for development of a new residential subdivision. Pursuant to these intentions, V.I.P. filed a subdivision plat with the Parish of St. Charles and, on December 17, 1973, formally dedicated the lands necessary for streets and greenways in the proposed subdivision to the Parish. St. Charles Parish accepted the dedication, which consisted of approximately 30 acres out of the 110 acre tract, and the dedication remains in effect today. The remainder of the tract, consisting of approximately 80 acres, was then subdivided by V.I.P. into lots to be sold.

While plaintiff landowners' appraisers appear to have based their appraisals of the entire tract on a figure of 110.48 acres as the total land area encompassed by the tract, the only survey contained in the record, that prepared by Russell L. Mistric for DOTD, measures the total land area of the tract as 112.9070 acres. Because the trial court failed to make any factual findings as to the total acreage encompassed by this tract, or as to the acreage occupied by either the dedicated streets and greenways or the 29 lots not owned by anyone party to this suit at the time of DOTD's denial of the permit for driveway access, the actionable "taking," and the experts' figures differ, all acreage figures used herein are approximate.

1

Subsequent to the dedication of the streets and greenways and the filing of the subdivision plat, V.I.P. sold lots in the proposed subdivision to various persons, including shareholders of V.I.P., though no construction of the infrastructure of the subdivision had yet begun. In 1975, V.I.P. sold most of the remaining lots to St. Charles Land & Development Company. The stock of St. Charles Land & Development Company was subsequently transferred to Huey Rivet and his wholly owned corporation, Rivet Dragline & Marsh Buggy Company, Inc. (for convenience, Huey Rivet and Rivet Dragline & Marsh Buggy, Inc. will hereinafter be referred to as "Rivet"). On May 2, 1985, after

a lengthy series of delays, Rivet finally obtained a wetlands permit from the U.S. Army Corps of Engineers, allowing him to commence certain infrastructure construction on the tract.2 Rivet then filed an application for a driveway permit with DOTD on May 7, 1985, requesting access to Airline Highway from the tract. By letter dated July 8, 1985, DOTD denied Rivet's request for driveway access to Airline Highway due to the intended construction by the state of an interchange at Airline Highway and I-310 in the future.3 After DOTD's denial of the driveway permit, but before he filed suit against DOTD for appropriation of the tract through denial of a driveway access permit, Rivet acquired ownership of an additional 28 lots in the tract. Rivet then filed suit against DOTD on October 9, 1987. While the suit was pending, several other persons who owned lots in the tract intervened. After trial on the merits, the trial court found an appropriation had occurred by virtue of DOTD's denial of a permit for driveway access from the tract onto Airline Highway and rendered judgment in favor of Rivet and the intervenors in the amount of $3,099,264.00, plus interest from date of judicial demand, attorney's fees of 25%, and expert fees of $15,000.00 for each of plaintiffs' appraisers. On appeal by DOTD, the fifth circuit court of appeal affirmed the trial court's

determination that an appropriation had occurred, and further found no error in the trial court's assessment of damages on a per acre basis. However, the court of appeal set aside the total amount of compensation awarded, finding that the trial court had erred in awarding compensation for the acreage occupied by the dedicated streets and greenways and in awarding compensation for 29 lots

Because the tract had been classified as "jurisdictional wetlands" by the U.S. Army Corps of Engineers, a Clean Water Act

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