Elizabeth W. Magner and Michael W. Magner v. Michael Deas

CourtLouisiana Court of Appeal
DecidedMarch 27, 2024
Docket2023-CA-0598
StatusPublished

This text of Elizabeth W. Magner and Michael W. Magner v. Michael Deas (Elizabeth W. Magner and Michael W. Magner v. Michael Deas) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elizabeth W. Magner and Michael W. Magner v. Michael Deas, (La. Ct. App. 2024).

Opinion

ELIZABETH W. MAGNER * NO. 2023-CA-0598 AND MICHAEL W. MAGNER * VERSUS COURT OF APPEAL * MICHAEL DEAS FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-05431, DIVISION “F-14” Honorable Jennifer M Medley, ****** Judge Tiffany Gautier Chase ****** (Court composed of Judge Joy Cossich Lobrano, Judge Paula A. Brown, Judge Tiffany Gautier Chase)

LOBRANO, J., CONCURS IN THE RESULTS AND ASSIGNS REASONS.

P. J. Kee Michael William Magner JONES WALKER, LLP 201 St. Charles Avenue, 49th Floor New Orleans, LA 70170-5100

Elizabeth Wall Magner 916 Governor Nicholls Street New Orleans, LA 70116

COUNSEL FOR PLAINTIFF/APPELLANT

Gilbert R. Buras, Jr. ATTORNEY AT LAW 710 Carondelet Street New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS MARCH 27, 2024 TGC PAB

Appellants/Plaintiffs, Elizabeth and Michael Magner (hereinafter

collectively “the Magners”), seek review of the trial court’s October 25, 2022

judgment denying their petition for a declaratory judgment and permanent

injunction in favor of Appellee/Defendant Michael Deas (hereinafter “Mr. Deas”).

After consideration of the record before this Court and the applicable law, we

affirm the trial court’s judgment in part, reverse in part and remand the matter for

further proceedings.

FACTS AND PROCEDURAL HISTORY

This appeal arises from a property dispute between neighboring French

Quarter landowners. The Magners own the residence located at 916 Governor

Nicholls Street and Mr. Deas owns the residence next door at 914 Governor

Nicholls Street (hereinafter referred to as “the Magner Residence” and “the Deas

Residence,” respectively).1 The Deas Residence contains two alleys: one alley is

located on the south side on Burgundy Street while the second alley is situated on

1 The residences are located in the French Quarter and are subject to the rules of the Vieux Carré

Commission, the local entity that controls maintenance and repairs of properties within the French Quarter.

1 the north side between the two residences. Mr. Deas owns the alley situated

between the two residences which is approximately four and one-half feet wide

and is inaccessible to the Magners. The Magner Residence has no side setbacks,

abuts one side of the Deas Residence, and takes up the entire lot it rests upon.

In 2021, as a result of Hurricane Ida, the Magner Residence suffered

significant water and roof damage. After consulting with roofers and masonry

experts regarding the source of the water intrusion and damage, the Magners

concluded their north exterior wall required extensive repairs.2 In order to repair

the damaged area, and due the configuration of the residences, the Magners will

need access to the north alley which is on Mr. Deas’ property.3 The repairs will

require the workers construct a two-story scaffold in the north alley and the

scaffold would remain in the alley for a period, not to exceed, twenty-one days.

After months of negotiations, Mr. Deas refused the Magners’ request for access to

the alley.

On June 21, 2022, the Magners filed a “Verified Petition for Declaratory

Relief, Temporary Restraining Order, Preliminary Injunction, and Permanent

Injunction” (hereinafter “the Petition”). The Petition requested the following relief:

(1) A declaratory judgment recognizing a servitude in favor of the Magner Residence (as defined below) over the Deas Property (as defined below) both now and in the future upon the satisfaction of certain enumerated conditions, for the purpose of performing maintenance or repairs to the Magner Residence;

(2) The immediate issuance of a temporary restraining order compelling Deas to recognize the servitude and allow access to the Deas Property and cease interfering with the execution of repairs; and

2 Mr. Deas previously granted the Magners access to the alley for renovations to the Magner

Residence in 2015. 3 The Magners proposal to Mr. Deas was that construction occur on the weekdays from 8:00 a.m.

to 5:00 p.m. and on weekends from 9:00 a.m. to 4:00 p.m. 2 (3) The entry of preliminary and permanent injunctions maintaining the same relief requested through the temporary restraining order.

The Petition’s prayer for relief requests the trial court grant “all other legal and

equitable relief as is just and proper.” The trial court granted the motion for a

temporary restraining order (hereinafter “TRO”) and set a contradictory hearing for

the preliminary injunction. Mr. Deas sought to dissolve the TRO and requested a

continuance of the preliminary injunction hearing. The trial court set a hearing for

Mr. Deas’ motions and the Magners’ request for preliminary injunction on the

same day. Both Mr. Deas’ motions and the Magners’ request for a preliminary

injunction were denied. In response, Mr. Deas filed a peremptory exception of no

cause of action or in the alternative a motion for a judgment on the pleadings. The

Magners opposed the exception, alleging the Petition states a cause of action for a

claim of “equitable relief” under La. C.C. art. 4 and an abuse of rights claim

against Mr. Deas. The trial court denied the exception and set a trial date for the

Magners’ petition for declaratory relief and a permanent injunction.

At trial, Mrs. Magner testified as to her discussions with Mr. Deas regarding

access to the alley. Two of the masonry workers hired by the Magners confirmed

the need to repair the exterior wall to stop the water intrusion into the Magner

Residence. Mr. Deas testified that his refusal to allow the Magners access was

based on his prior experience, discussions with the Magners and inconveniences

suffered when he granted the Magners access to the alley in 2015. Mr. Deas

explained that he is an artist who uses his home as a studio and believes the

disruption of the repairs would impede his ability to work. Both parties submitted

evidence which included the following: (1) photographs of the alley; (2) the acts of

3 sale for both the Magner Residence and the Deas Residence; (3) photos of

construction to the Magner Residence in 2015; (4) text messages and emails

between the Magners and Mr. Deas; (5) a copy of the liability insurance purchased

by the Magners for the 2021 repairs; and (6) a copy of the indemnity agreement

provided by the Magners to Mr. Deas.

After taking the matter under advisement, the trial court issued a judgment

and reasons for judgment denying the Magners’ petition for declaratory judgment

and request for a permanent injunction. The trial court concluded that it had no

authority to create a servitude in favor of the Magner Residence granting the

Magners access to the alley for maintenance and repairs. The Magners’ abuse of

rights claim was also denied. Thereafter, the Magners filed a motion for new trial

maintaining the trial court failed to rule on their La. C.C. art. 4 claim. The motion

for new trial was denied. This appeal followed.

JURISDICTION AND STANDARD OF REVIEW

“A judgment denying a declaratory judgment is an interlocutory judgment.”

Delta Admin. Servs., L.L.C. v. Limousine Livery, Ltd., 2015-0110, p. 6 (La.App. 4

Cir. 6/17/15), 216 So.3d 906, 910 (citation omitted). In accordance with La. C.C.P

art. 3612(B), a judgment denying a permanent injunction is a final appealable

judgment.

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Elizabeth W. Magner and Michael W. Magner v. Michael Deas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elizabeth-w-magner-and-michael-w-magner-v-michael-deas-lactapp-2024.