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. “An appellant is entitled to seek review of all adverse interlocutory
judgments prejudicial to them, in addition to the review of the final judgment when
an unrestricted appeal is taken.” Orleans Par. Sch. Bd. v. Lexington Ins. Co., 2011-
1720, p. 10 (La.App. 4 Cir. 8/22/12), 99 So.3d 723, 729 (citation omitted). The
Magners seek review of the trial court’s judgment denying their request for
4 injunctive relief and request for a declaratory judgment. Accordingly, we find the
judgment is properly before this Court on appeal.
This Court reviews a trial court’s denial of a permanent injunction and
judgments denying declaratory relief under the abuse of discretion standard. Delta
Admin. Servs., L.L.C., 2015-0110, p. 6, 216 So.3d at 910. Further, “[j]udgments
regarding servitudes are reviewed under the manifest error standard of review.”
1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, 2015-0301, p. 4 (La.App.
4 Cir. 12/23/15), 183 So.3d 724, 727 (citation omitted). “To reverse under the
manifest error rule, an appellate court must find from the record that there is no
reasonable basis for the trial court’s finding and that the record shows the finding
to be manifestly erroneous.” Id. (citations omitted).
DISCUSSION
The Magners assert one assignment of error on appeal and argue the trial
court failed to grant “equitable relief” under La. C.C. art. 4. From this general
allegation, we find there are three issues before this Court which can be
categorized as: (1) Injunctive and Declaratory Relief; (2) Abuse of Rights; and (3)
New Trial on La. C.C. art. 4 – Equitable Relief. We address each in turn.
Injunctive and Declaratory Relief
The Magners assert the trial court erred in failing to render injunctive and
declaratory relief by granting them a predial servitude. “The purpose of a
declaratory judgment is to provide a method whereby parties may request a trial
judge to ‘declare rights, status, and other legal relations whether or not further
relief is or could be claimed.’” Couvillon v. James Pest Control, Inc., 1998-2382,
p. 3 (La.App. 4 Cir. 3/3/99), 729 So.2d 172, 174 (quoting La. C.C.P. art. 1871).
5 “[T]he existence of another adequate remedy does not preclude a judgment for
declaratory relief in cases where it is appropriate.” La. C.C.P. art. 1871. “Use of
the word ‘may’ rather than ‘shall’ evidences the legislature’s intent to afford the
trial court substantial discretion in deciding whether or not to render declaratory
judgment.” Olano v. Karno, 2020-0396, p. 4 (La.App. 4 Cir. 4/7/21), 315 So.3d
952, 956 (quoting In re Interment of LoCicero, 2005-1051, p. 4 (La.App. 4 Cir.
5/31/06), 933 So.2d 883, 886). Prior to our analysis of the trial court’s ruling
denying the Magners’ request for injunctive and declaratory relief, a brief
overview of the principles of Louisiana property law is warranted.
“Property law in Louisiana is a distinct branch of the civil law, dealing with
the principal real rights that a person may have in things.” Eagle Pipe & Supply,
Inc. v. Amerada Hess Corp., 2010-2267, p. 9 (La. 10/25/11), 79 So.3d 246, 257
(citations omitted). Our Civil Code “classifies ‘things’ into different categories to
which different rules may apply.” Id., 2010-2267, pp. 9-10, 79 So.3d at 257
(citation omitted). “The first division of things in [our] Civil Code is into common,
public and private things.” Id., 2010-2267, p. 10, 79 So.3d at 257 (citations
omitted). A person may have various rights in things such as: ownership; personal
and predial servitudes; and such other real rights as the law allows. La. C.C. art.
476; Id., 2010-2267, p. 10, 79 So.3d at 258 (citations omitted). “Real rights are not
defined by the Civil Code, but ownership is.” Id., 2010-2267, p. 10, 79 So.3d at
258. “Ownership is the right that confers on a person direct, immediate, and
exclusive authority over a thing.” La. C.C. art. 477. An owner may use, enjoy, and
dispose of a thing within the limits and conditions established by law. Id.
Our Supreme Court has determined that “a real right can be understood as
ownership and its dismemberments.” Eagle Pipe & Supply, Inc., 2010-2267, p. 11, 6 79 So.3d at 258. (citations omitted) “The various dismemberments of ownership
also confer real rights on the owner or holder of that right.” Id. Servitudes are
examples of various dismemberments of ownership in our Civil Code that are
divided into personal and predial. Personal and predial servitudes confer real rights
on the holder of the servitude. Id. A real right cannot exist without a determined
object. Id., 2010-2267, p. 12, 79 So.3d at 259. (citations omitted).
Louisiana Civil Code article 646 defines a predial servitude as “a charge on
a servient estate for the benefit of a dominant estate.” The two estates must belong
to different owners.” La. C.C. art. 646. An estate burdened with a predial servitude
is designated as the servient estate and the estate in whose favor the servitude is
established is designated as the dominant estate. See 1026 Conti Condominiums,
LLC v. 1025 Bienville, LLC, 2019-0826, p. 6 (La.App. 4 Cir. 8/5/20), 364 So.3d
297, 301 (citation omitted). An owner of an estate may establish a predial servitude
on his estate or acquire it for the estate’s benefit. Id., 2019-0826, p. 6, 364 So.3d at
302. “The use and extent of such servitudes are regulated by the title by which
they are created… .” La. C.C. art. 697. In the absence of a title, servitudes are
governed by the rules set forth in La. C.C. arts. 698 through 774. See La. C.C. art.
697; see also 1026 Conti Condominiums, LLC, 2019-0826, p. 6, 364 So.3d at 302.
“Predial servitudes may be natural, legal, and voluntary or conventional.” La. C.C.
art. 654. “Natural servitudes arise from the natural situation of estates; legal
servitudes are imposed by law; and voluntary or conventional servitudes are
established by juridical act, prescription, or destination of the owner.” Id.
The Magners request the trial court create a predial servitude in favor of
their residence, allowing them to perform maintenance and repairs on their
property. According to the Magners, a court can judicially create a predial 7 servitude granting them access to perform maintenance and repairs to their
property. However, based on the facts and posture of this case, the remedy sought
by the Magners is not allowed under existing jurisprudence or our Civil Code.
There is no evidence in the record indicating a servitude, by juridical act,
prescription, or destination of the owner, exists between the two residences. See
La. C.C. art. 654. Moreover, there is no evidence within the record to show the
Magners’ property encroaches on Mr. Deas’ property. See Winingder v. Balmer,
1993-0874, (La.App. 4 Cir. 2/11/1994), 632 So.2d 408. Without these conditions, a
trial court may not judicially create a servitude. Rather, our Civil Code confines the
court to the task of assessing whether a servitude exists and allows it to define the
scope of the servitude. See generally Palomeque v. Prudhomme, 1995-0725 (La.
11/27/95), 664 So.2d 88; 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC,
2019-0826 (La.App. 4 Cir. 8/5/20), 364 So.3d 297; Nola Bourbon, LLC v.
Rodriguez-Franco, 2021-0023 (La.App. 4 Cir. 6/23/21), 324 So.3d 709. Thus,
because there was no servitude for the trial court to assess or define, we find the
trial court did not err in denying the request for a declaratory judgment. However,
as will be discussed below, we recognize that the Magners are entitled to relief.
Abuse of Rights
The Magners maintain that the trial court erred in denying their abuse of
rights claim as Mr. Deas abused his rights in declining access to the alley. The
abuse of rights doctrine is rarely invoked in Louisiana. Insulation Techs., Inc. v.
Indus. Labor & Equip. Servs., Inc., 2013-0194, p. 7 (La.App. 4 Cir. 8/14/13), 122
So.3d 1146, 1151 (citation omitted). This doctrine “applies only in limited
circumstances because its application renders unenforceable one’s otherwise
8 judicially protected rights.” Id. (citation omitted). “The [abuse of rights doctrine] is
essentially that ‘fault’ in the delictual sense can be imposed upon a party who
attempts to exercise a legal right with the primary intention of harming or imposing
a detriment upon another.” Id., 2013-0194, pp. 7-8, 122 So.3d at 1151 (citation
omitted). For the abuse of rights doctrine to apply, one of the following conditions
must exist:
(1) the predominant motive for exercise of the right is to cause harm;
(2) there is no serious or legitimate motive for exercise of the right;
(3) the exercise of the right violates moral rules, good faith, or elementary fairness; or
(4) the exercise of the right is for a purpose other than that for which it was granted.
Lee v. Pennington, 2002-0381, p. 8 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037,
1043 (citation omitted). According to the Magners, Mr. Deas’ failure to grant
access to the alley causes them continuous harm by not allowing them to repair
their residence. The trial court found the Magners’ argument regarding abuse of
rights unpersuasive. We agree.
The Magners failed to establish any of the four conditions necessary to apply
the abuse of rights doctrine. Testimony reveals the repairs to the Magner Residence
are only possible if workers are granted access to the alley. Granting access to the
alley would require Mr. Deas to be present in his home from the hours of 9:00 a.m.
through 5:00 p.m. daily. Mr. Deas is an artist who is self-employed and works out
of his home. He testified at trial the repairs would cause a disruption to his day-to-
day routine and interrupt his work. There is no evidence to indicate Mr. Deas’
refusal to allow access to the alley was done for the sole purpose of causing harm
to the Magners. Due to the nature and extent of the repairs, we also find Mr. Deas 9 has a justifiable interest in denying the Mangers access to his alley to prevent
interruption to his daily life.
The Magners also failed to present evidence that Mr. Deas was refusing
access to his alley in bad faith or as an attempt to violate “moral rules” and
“elementary fairness.” He acknowledged the seriousness of the damage to the
Magner Residence as well as the need for repairs, but noted his unpleasant
experience in granting the Magners access to the alley in 2015. He stated he did
not want a repeat of this experience. It is uncontroverted the alley belongs to Mr.
Deas and that he has a judicially protected right to prevent access to his property.
Mr. Deas also commented that the daily compensation rate offered by the Magners
for the use of the alley was unacceptable to him. No evidence was submitted at
trial to suggest Mr. Deas’ refusal to grant access is for any purpose other than
given in his testimony. Thus, we find the Magners failed to establish any of the
required conditions necessary to apply the abuse of rights doctrine. Accordingly,
the trial court did not err in denying the Magners’ abuse of rights claim.
New Trial on La. C.C. art. 4 – Equitable Relief
The Magners contend the trial court erred in denying their motion for new
trial because the Petition’s prayer for relief raises a claim of “equitable relief”
under La. C.C. art. 4. “This Court reviews a ruling on a motion for new trial under
an abuse of discretion standard of review.” Sunset Harbour, LLC v. Brown, 2022-
0572, p. 9 (La.App. 4 Cir. 1/9/23), 356 So.3d 1167, 1173 (citation omitted).
The trial court denied the motion for new trial finding the Magners failed to
present any peremptory grounds for new trial under La. C.C.P. art. 1972 or
10 demonstrate good grounds for a new trial under La. C.C.P. 1973.4 Specifically, the
trial court determined the Mangers did not present evidence of “equitable relief” at
trial and did not raise the claim in the Petition. We disagree.
La. C.C. art. 4 provides, “[w]hen no rule for a particular situation can be
derived from legislation or custom, the court is bound to proceed according to
equity. To decide equitably, resort is made to justice, reason, and prevailing
usages.”5 The sole issue for the Magners is their need to perform necessary and
critical repairs to their home. The present dispute between the Magners and Mr.
Deas is indicative of a situation not covered by legislation or custom. The Magner
Residence has extensive water damage as a result of Hurricane Ida that will only
worsen if the roof is not repaired. The repairs can only be accomplished with
4 La. C.C.P. art. 1972 provides:
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence. (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial. (3) When the jury was bribed or has behaved improperly so that impartial justice has not been done. La. C.C.P. art. 1973 provides in pertinent part, “[a] new trial may be granted in any case if there is good ground therfor… .” 5Our Civil Code establishes two sources of law in Louisiana, legislation and custom. La. C.C.
art. 1. “Custom may not abrogate legislation.” La. C.C. art. 3. Our Supreme Court has determined,
[i]n Louisiana, courts are not bound by the doctrine of stare decisis, but there is a recognition in this State of the doctrine of jurisprudence constante. Unlike stare decisis, this latter doctrine does not contemplate adherence to a principle of law announced and applied on a single occasion in the past. Doerr v. Mobil Oil Corp., 2000-0947, pp. 13-14 (La. 12/19/00), 774 So.2d 119, 128 (quoting Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 296, 236 So.2d 216, 218 (1970)). “Under the civilian tradition, while a single decision is not binding on our courts, when a series of decisions form a ‘constant stream of uniform and homogenous rulings having the same reasoning,’ jurisprudence constante applies and operates with ‘considerable persuasive authority.’” Id., 2000-0947, p. 14, 774 So.2d at 128 (quoting James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L.Rev 1, 15 (1993)). 11 access to Mr. Deas’ alley. The Magners and Mr. Deas have attempted to negotiate
a contract for use of the alley; however, they have failed to reach a resolution. The
testimony at trial suggests that failure to repair the Magners’ roof will cause
continued deterioration of the exterior wall. The deterioration could result in the
Magners’ wall collapsing and causing damage to the Deas Residence. See La. C.C.
art. 660 (an “owner is bound to keep his buildings in repair so that neither their fall
nor that of any part of their materials may cause damage to a neighbor or a
passerby.”). Although Mr. Deas is entitled to decline the Magners access to his
property, La. C.C. art. 4 permits a trial court to equitably fashion a remedy that
includes specific terms of use and compensation. The Petition’s prayer for relief
and evidence presented at trial, reveals the Magners are entitled to some form of
relief which allows them to repair their home. The trial court did not rule on the
Magners’ request for equitable relief and we find this ruling to be in error. Good
grounds exist for the granting of a new trial. See La. C.C.P. art. 1973; La. C.C. art.
4; see also Saloom v. Dep’t of Transp. & Dev., 2022-00596, p. 6 (La. 12/9/22), 354
So.3d 1179, 1183 (citations omitted). Accordingly, we find the trial court abused
its discretion in denying the motion for new trial.
CONCLUSION
A review of the record reveals a contentious disagreement between
neighbors and we recognize the Magners’ conundrum and potential threat to the
structural integrity of their home. Judicially created servitudes, under the facts of
this case, are not provided for in existing law. Therefore, we agree with the trial
court that a declaratory judgment is not the proper procedural vehicle in which to
mandate the relief sought by the Magners. The only judicial remedy available is
12 injunctive relief. Thus, we find the trial court erred by not granting injunctive
relief by tailoring a ruling allowing the Magners a means to repair their home.
Since Mr. Deas and the Magners cannot reach an agreement, the trial court must
fashion an equitable remedy for both parties under La. C.C. art. 4. The trial court
should review and consider, in pari materia, the various code articles in Book II of
the Louisiana Civil Code in fashioning an equitable remedy. Accordingly, we
reverse the trial court’s denial of the Magners’ motion for a new trial and remand
this matter to the trial court for further proceedings.
DECREE
Based on the foregoing with affirm in part and reverse in part the trial
court’s October 25, 2022 judgment and remand this matter for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS