Hood Partners, L.L.C. v. David D. Davidge, Jr. and Sherry Anita Davidge Burke

• Court: Louisiana Court of Appeal
• Decided: June 29, 2021
• Docket: 2020CA1246
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 1246

HOOD PARTNERS, L.L. C.

VERSUS

DAVID D. DAVIDGE, JR. AND SHERRY ANITA DAVIDGE BURKE

Judgment Rendered: JUN 292021

APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF TANGIPAHOA STATE OF LOUISIANA DOCKET NUMBER 2018- 0000794

HONORABLE JEFFREY S. JOHNSON, JUDGE

Frank J. DiVittorio Attorney for Plaintiff/Appellant Hammond, Louisiana Hood Partners, L.L.C.

J. Mark Rolling Attorney for Defendants/Appellees Hammond, Louisiana David D. Davidge, Jr. and Sherry Anita Davidge Burke

BEFORE: McDONALD, HOLDRIDGE, and PENZATO, JJ.

s/ —; i t' ((. L't „ tet, e'''. 7 ` C . t. c3" Z–/IX-.'../ 7 C;,! McDonald, J.

In this case, the plaintiff filed a suit asking for a declaratory judgment

decreeing that a provision restricting multi -family dwellings from being built on its

property, contained in a previous conveyance, be declared unenforceable, against

public policy, and prescribed. After the first appeal was dismissed for lack of

subject matter jurisdiction, the trial court rendered a second judgment, dismissing

the suit. After review, we find that the judgment is ambiguous rather than

definitive, and we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Hood Partners, L.L.C., filed a suit for declaratory judgment on

March 9, 2018, naming as defendants David D. Davidge, Jr. and Sherry Anita

Davidge Burke. Hood Partners maintained that it purchased a 4. 524 acre tract of

land in Hammond, Louisiana, on August 31, 2017, from Northlake Partnership.

Northlake Partnership purchased the land from the defendants and Rumsie M.

Davidge' on December 8, 1983 ( the Davidge conveyance). The Davidge

conveyance contains the following provision:

Purchasers agree that no multi -family dwellings shall be constructed upon the above- described property. This restriction shall apply to Vendees, their heirs, successors or assigns and shall not be considered a personal obligation but shall be in rem and shall run with the land.

Hood Partners averred that the defendants maintained that this provision

created a real right, intended to run with the land and enforceable upon successive

purchasers. However, Hood Partners maintained that the obligation could only be

a personal obligation between the parties to the Davidge conveyance. Hood

Partners asked for a judgment in its favor, and against the defendants, declaring

Rumsie M. Davidge is now deceased.

2 that the restriction was unenforceable against it and any successor owners, was

against public policy, and was prescribed.

The defendants answered the petition and asked for judgment in their favor,

and against Hood Partners, dismissing the suit. The trial court rendered judgment

on June 11, 2019, denying the petition for declaratory judgment. However, the

judgment did not dismiss the suit.

On appeal, this court determined that "[ t]here is actually nothing in the

petition or the evidence submitted at trial suggesting that Hood [ Partners] or any

other party has or ever will seek to construct multi -family dwellings on the parcel

of land at issue." This court dismissed the appeal for want of subject matter

jurisdiction, finding the judgment was not appealable and no justiciable

controversy existed, as the judgment was based on an uncertain contingency.

Hood Partners, L.L.C. v. Davidge, 2019- 1150 ( La. App. 1 Cir. 5/ 11/ 20), 303

So. 3d 349, 351- 352.

Thereafter, on September 28, 2020, the parties submitted a joint pre- trial

order to the trial court, setting forth established facts in the case. The order states

that Hood Partners had asked the defendants to sign an Act of Release

acknowledging that the restriction was not binding on Hood Partners or any

successor owners of the property " in order to remove any potential clouds on the

title that could inhibit future purchasers" and that defendants had refused. Further,

the order states that the tract was listed for sale, but that Hood Partners " is having

to make potential purchasers interested in developing multi -family housing [ aware]

of [the] uncertainty regarding their rights." Additionally, the order states that the

existence of the restriction in the land records was " suggestive of litigation as to

anyone that would want to purchase the [ property] for multifamily development."

3 The trial court rendered a second judgment on October 5, 2020. The second

judgment provides:

This matter was submitted by the parties on briefs.

Considering the Joint Motion to Set Matter for Trial with Stipulated Procedure and Pretrial Order, Joint Supplemental Pretrial Order, and Decision of the First Circuit Court of Appeal, the Court adopts and maintains its previously issued Reasons for Judgment and rules as follows:

IT IS HEREBY ORDERED ADJUDGED AND [ DECREED] that the parties are entitled to a declaratory judgment in this matter to settle the uncertainty and insecurity of the rights between them as to the use of the 4. 524 Acre Tract owned by [ Hood Partners],

specifically whether the Defendants can be prevented from building multi -family housing on the property, this is a substantial dispute between the parties who have real adverse interest[ s] in this issue, upon which a judgment of this Court may effectively operate through a decree.

IT IS FURTHER HEREBY ORDERED ADJUDGED AND DECREED that the petition of plaintiff Hood Partners, LLC is dismissed.

Hood Partners appealed the second judgment.

THE PRESENT APPEAL

A valid judgment must be precise, definite, and certain. Moreover, a final

appealable judgment must contain decretal language, and it must name the party in

favor of whom the ruling is ordered, the party against whom the ruling is ordered,

and the relief that is granted or denied. Advanced Leveling & Concrete

Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268

So. 3d 1044, 1046. Further, we note that a judgment which affects title to

immovable property shall describe the immovable property affected with

particularity. La. C. C. P. art. 1919. The purpose of Article 1919 is to ensure that

the public in general, and title examiners, successful litigants, officials charged

with executions of judgments and surveyors in particular, can accurately deal with

the immovable property. Hurst v. Ricard, 558 So. 2d 1269, 1272 ( La. App. 1 Cir.), writ denied, 559 So.2d 1378 (La. 1990).

The reasons for judgment indicate that the trial court found that the Davidge

conveyance created a valid predial servitude. However, the judgment itself does

not declare whether the predial servitude is valid, and it gives no cause for the

dismissal. The trial court's reasons for judgment form no part of the judgment, and

appellate courts review judgments, not reasons for judgment. Wooley v.

Lucksinger, 2009-0571 (La. 4/1/11 ), 61 So.3d 507, 572. We have nothing to

review because the judgment does not state the grounds for the dismissal, and

while the judgment states that the parties are entitled to a declaratory judgment, the

judgment does not make a declaration. Thus, the judgment is ambiguous rather

than precise, definitive, and certain. See Advanced Leveling, 268 So.3d at 1046.

For the foregoing reasons, the appeal is dismissed. Costs of this appeal are

assessed against Hood Partners, L.L.C.

APPEAL DISMISSED.

5 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2020 CA 1246

HOOD PARTNERS, LLC

PENZATO, J., concurring.

I respectfully concur with the majority opmion dismissing the appeal.

Louisiana Code of Civil Procedure article 1871 provides that in a declaratory

judgment action the declaration shall have the force and effect of a final

judgment. The judgment at issue specifically states that " the parties are entitled to

a declaratory judgment in this matter to settle the uncertainty and insecurity of the

rights between them as to the use of the 4. 524 Acre Tract ...." Yet, the judgment

issues no declaration. Rather, the judgment dismisses the petition of Hood

Partners, LLC. Based on this internal inconsistency, I find the judgment to be

uncertain. See Advanced Leveling & Concrete Solutions v. Lathan Company, Inc.,

2017- 1250 ( La. App. 1st Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046. Therefore, I

concur with the result reached by the majority.