Rhonda Brehm v. Scott Amacker and Monica Amacker

• Court: Louisiana Court of Appeal
• Decided: September 21, 2020
• Docket: 2019CA1452
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 1452

RHONDABREHM

d- v VERSUS

SCOTT AMACKER and MONICA AMACKER

Judgment Rendered: SEP 2 1 20M

On Appeal from the 22nd Judicial District Court In and for the Parish of Washington State of Louisiana Trial Court No. 107519

Honorable Reginald T. Badeaux, 111, Judge Presiding

Trent P. Temples Attorney for Defendants/Appellants, Bogalusa, Louisiana Scott Amacker and Monica Amacker

Chad A. Danehower Attorney for Plaintiff/Appellee, Covington, Louisiana Rhonda Brehm

BEFORE: HIGGINBOTHAM, PENZATO, AND,

U PENZATO, J.

This is a suit for declaratory judgment and injunctive relief filed by Rhonda

Brehm against Scott and Monica Amacker regarding the extent of a servitude of

passage across Ms. Brehm' s property. Defendants appeal a judgment decreeing that

plaintiff' s property is subject to a servitude of passage limited to an existing gravel

road.

FACTS AND PROCEDURAL HISTORY

On July 20, 2001, William and Jeanne Dalton, the parties' predecessor in title,

purchased a 12 -acre tract of land in Washington Parish, Louisiana. The property' s

southern -most boundary fronted Parker Road, a parish blacktop road. The Daltons'

act of sale described the property and then recited:

This tract contains 12. 00 acres of land, all as more fully shown on survey by Land Surveying, Inc., dated July 18, 2001, under No. 9343, a copy of which is annexed hereto and made a part hereof.

The attached survey showed a dashed line running from Parker Road parallel to the

tract' s eastern border, marked as a 60 -foot right-of-way. The Daltons' act of sale

further provided that it was subject to the following servitude of passage established

and recorded in 1999 by the Daltons' predecessor in title: " a perpetual servitude of

passage for a roadway over and across the existing gravel road which runs from the

north margin of Parker Road." The gravel road, known as Morning Mist Lane, ran

along the length of the eastern edge of the Dalton property. The 60 -foot right-of-

way shown on the July 18, 2001 survey followed Morning Mist Lane.

The Daltons subdivided the 12 -acre tract into four, three -acre parcels and

listed the parcels for sale. Only the southern -most parcel fronted Parker Road;

Morning Mist Lane provided access to Parker Road for the remaining three parcels.

In March 2003, the Daltons sold the northern -most parcel to the Amackers.

The act of sale described the property and recited the following:

2 This tract contains 3. 00 acres, all as more fully shown on survey of Jeron R. Fitzmorris, Land Surveying, Inc. dated February 20, 2003 under No. 10, 018, a copy of which is annexed hereto and made a part hereof.

The attached survey showed a dashed line marked as a 60 -foot right-of-way running

parallel to the tract' s eastern border and extending across the adjacent property to

Parker Road.

In September 2003, the Daltons sold two of the parcels to Lindsley Scott

Crain. By credit sale dated September 5, 2003, the Daltons sold to Mr. Crain the

three -acre tract that fronted Parker Road. Following the property description, the

act recited:

All as more fully shown on survey of Land Surveying, Inc., Jeron R. Fitzmorris, Registered Land Surveyor, dated August 15, 2003 under No. 10, 282.

A copy of the August 15, 2003 survey was attached to the credit sale and showed a

dashed line marked as a 60 -foot right-of-way running from Parker Road parallel to

the tract' s eastern border. By " Dation en Paiement" dated March 3, 2009, Mr. Crain

transferred the property back to the Daltons.

Also on September 5, 2003, the Daltons sold Mr. Crain the parcel adjacent to

the one that fronted Parker Road. The property description recited that the described

property was:

All as more fully shown on survey of Land Surveying, Inc., Jeron R. Fitzmorris, Registered Land Surveyor, dated August 19, 2003 under No. 10, 283.

A copy of the August 19, 2003 survey was attached to the credit sale and showed a

dashed line marked as a 60 -foot right-of-way running parallel to the tract' s eastern

border and extending across the adjacent property to Parker Road. This parcel was

acquired by Adair Asset Management at the 2009 Washington Parish Tax Sale, and

was subsequently acquired by Ms. Brehm on October 16, 2013, by Quit Claim Deed.

N On June 29, 2009, the Daltons sold two parcels to Ms. Brehm. One was the

three -acre tract fronting Parker Road that the Daltons had previously sold to Mr.

Crain. The act of sale provided that the property being purchased by Ms. Brehm was

described "[ A] ccording to a plat of survey by Land Surveying, Inc. dated August 15,

2003." The act of sale further recited that a copy of the survey was annexed to the

act of sale. The second parcel was the tract adjacent to the Amackers' property. It

was described as being "[ A] ccording to a plat of survey by James J. Jones &

Associates, Inc., Land Surveyors, dated June 12, 2009." According to the act of sale,

a copy of the survey was annexed to the act of sale. The June 12, 2009 survey

indicates that it was prepared for Ms. Brehm, and showed a dashed line running

parallel to the tract' s eastern border and extending across the Amackers' property to

the north and the adjacent property to the south to Parker Road. The area between

the dashed line and the property' s eastern border was marked as a 60 -foot right-of-

way. The survey also showed a gravel road drawn in the approximate center of the

right of way.

The Amackers moved to their property on Morning Mist Lane in 2014, and

issues arose between them and Ms. Brehm regarding the Amackers' use of the right-

of-way. On September 18, 2014, Ms. Brehm prepared and recorded in the

conveyance records of Washington Parish a document entitled " Amendment to Right

of Way Grant." In this " Amendment," Ms. Brehm referenced the June 12, 2009,

August 15, 2003, and August 19, 2003 surveys that were included in the acts by

which she acquired her property, and " amended" them from a 60 -foot right- of-way

to a 12 -foot right-of-way across Morning Mist Lane. She further forbid the use of

recreational vehicles on the right-of-way, forbid minors from operating any sort of

vehicle on the right-of-way, and imposed a 20 mile -per -hour speed limit.

Thereafter, on October 30, 2014, Ms. Brehm filed a " Petition for Possessory

Action[,] Declaratory Judgment, Temporary Restraining Order, Injunctive Relief

M and Damages" against the Amackers. Ms. Brehm alleged that the Amackers

trespassed on her property by driving and walking off Morning Mist Lane onto her

property, damaged her property, and deprived her of the liberty of enjoying her

property. Ms. Brehm sought: ( 1) a judgment declaring and recognizing that her

property is only burdened by the predial servitude established in the 1999 right-of-

way grant; ( 2) a preliminary injunction prohibiting the Amackers from using any

portion of her property beyond the predial servitude established in the 1999 right-

of-way grant and from interfering with her quiet and uninterrupted possession of her

property; ( 3) a permanent injunction enjoining the Amackers from using any portion

of her property beyond the predial servitude established in the 1999 right-of-way

grant and from interfering with her quiet and uninterrupted possession of her

property; and ( 4) damages. Pursuant to a show cause order issued by the trial court,

a hearing relative to Ms. Brehm' s petition was held on November 20, 2014.

Following a hearing, the trial court ruled in favor of Ms. Brehm. A judgment

was signed on December 29, 2014, declaring that Ms. Brehm' s property was subject

to a servitude of passage limited to the existing gravel road known as Morning Mist

Lane. The judgment further ordered that the Amackers and their agents and assigns

were permanently enjoined from using, possessing, traveling, or walking on any

portion of Ms. Brehm' s property other than on Morning Mist Lane, and from

harassing Ms. Brehm in any way, including yelling at her or playing excessively loud

music at any time. The judgment also awarded Ms. Brehm damages in the amount

of $ 1, 360. 06, for lost wages and emotional distress suffered by Ms. Brehm, plus

court costs.

The Amackers filed a motion for new trial, which was denied following a

hearing. The Amackers appealed both the December 29, 2014 judgment and the

judgment denying their motion for a new trial.

5 On appeal, this court found that the trial court erred in denying the motion for

new trial and, further, that it exceeded the parameters of its authority in granting a

declaratory judgment, permanent injunctions, and awarding damages pursuant to the

hearing for preliminary injunctions. Brehm a Amacker, 2015- 1531 ( La. App. 1 Cir.

12/ 7/ 17), 236 So. 3d 621, 629- 30. The December 29, 2014 judgment was vacated,

the judgment denying the Amackers' motion for new trial was reversed, and

judgment was rendered granting the Amackers' motion for new trial. The matter was

remanded to the trial court for further proceedings. Id. at 631.

The matter came before the trial court for a new trial on January 2, 2019. At

the conclusion of the testimony, the trial court took the matter under advisement. On

March 21, 2019, the trial court issued reasons for judgment and a judgment decreeing

that Ms. Brehm' s property was subject to a servitude of passage limited to the

existing gravel road known as Morning Mist Lane. The judgment further ordered

that the Amackers and their agents and assigns were permanently enjoined from

using, possessing, traveling, or walking on any portion of Ms. Brehm' s property

other than on Morning Mist Lane, and from harassing Ms. Brehm in any way,

including yelling at her or playing excessively loud music at anytime. The judgment

also awarded Ms. Brehm damages in the amount of $6, 000. 00, plus court costs.

The Amackers appealed, asserting that the trial court erred in finding that they

did not own and possess a 60 -foot right-of-way servitude over the eastern edge of

the property belonging to plaintiff.

LAW AND DISCUSSION

A court of appeal may not set aside a trial court' s finding of fact in the absence

of manifest error or unless it is clearly wrong. Stobart a State through Department

of Transportation & Development, 617 So. 2d 880, 882 ( La. 1993). However, where

one or more legal errors interdict the fact-finding process, the manifest error standard

no longer applies. Campo a Correa, 2001- 2707 ( La. 6/ 21/ 02), 828 So. 2d 502, 510.

2 A legal error occurs when a trial court applies incorrect principles of law and such

errors are prejudicial. Legal errors are prejudicial when they materially affect the

outcome and deprive a party of substantial rights. Evans v Lungrin, 97- 0541 ( La.

2/ 6/ 98), 708 So. 2d 731, 735. When such a prejudicial error of law skews the trial

court' s finding of a material issue of fact and causes it to pretermit other issues, the

appellate court is required, if it can, to render judgment on the record by applying

the correct law and determining the essential material facts de novo. Id.

A predial servitude is 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. There

must be a benefit to the dominant estate. The benefit need not exist at the time the

servitude is created; a possible convenience or a future advantage suffices to support

a servitude. La. C. C. art. 647. The owner of the servient estate is not required to do

anything. La. C.C. art. 651. His obligation is to abstain from doing something on

his estate or to permit something to be done on it. He may be required by convention

or by law to keep his estate in suitable condition for the exercise of the servitude due

to the dominant estate. Id.

Predial servitudes may be natural, legal, and voluntary or conventional.

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. La. C. C. art. 654.

Predial servitudes may be established by an owner on his estate or acquired

for its benefit. La. C. C. art. 697. The use and extent of such servitudes are regulated

by the title by which they are created, and, in the absence of such regulation, by the

rules set forth in La. C. C. arts. 698 through 774. See La. C. C. art. 697. A right of

passage is an example of a predial servitude. See La. C. C. art. 699. The servitude

of passage is the right for the benefit of the dominant estate whereby persons,

animals, or vehicles are permitted to pass through the servient estate. Unless the title

I provides otherwise, the extent of the right and the mode of its exercise shall be

suitable for the kind of traffic necessary for the reasonable use ofthe dominant estate.

La. C. C. art. 705. The establishment of a predial servitude by title is an alienation

of a part of the property to which the laws governing alienation of immovables apply.

La. C. C. art. 708. Predial servitudes are established by all acts by which immovables

may be transferred. La. C. C. art. 722. Doubt as to the existence, extent, or manner

of exercise of a predial servitude shall be resolved in favor of the servient estate. La.

C. C. art. 730.

A servitude of passage is created when one subdivides property by plat of

survey that designates a right-of-way or servitude of passage and thereafter sells one

or more tracts of land by reference to said survey, regardless of whether or not the

instrument in question specifically describes or makes reference to the servitude.

Bernard v. Broussard, 538 So. 2d 1093, 1094 ( La. App. 3 Cir.), writ denied, 542 So.

2d 1381 ( La. 1989). Where an act of sale is silent as to an easement, but the survey

plat referred to in the property description, which was attached to a previous act of

sale that was recorded in the conveyance records, indicated that there was an

easement, a servitude is created. Templeton v. Jarreau, 2018- 0240 ( La. App. 1 Cir.

9/ 24/ 18), 259 So. 3d 356, 362.

In this case, all of the relevant title documents were admitted into evidence.

After reviewing the evidence in its entirety, the trial court concluded that the

Amackers failed to meet their burden of proof to establish that the servitude of

passage located on Ms. Brehm' s property was anything more than the existing gravel

road identified as Morning Mist Lane. The trial court found that none of the exhibits

introduced at the trial constituted a title creating the disputed 60 -foot servitude, and

therefore, nothing in any of the evidence established that a 60 -foot right-of-way

existed on Ms. Brehm' s property.

N. The issue herein of whether the relevant documents created a servitude is

similar to the issue presented in Triangle Development, Inc. v. Burns, 469 So. 2d 29

La. App. I Cir. 1985). In Triangle Development, plaintiff prepared a plan and plat

to develop a twenty -acre parcel of property. The tract fronted 660 feet on Lee

Hughes Road on the cast, and extended west to a depth of 1, 320 feet. Plaintiff

divided the tract into parcels measuring 330 feet by 132 feet, each fronting on a 50 -

foot road that ran from east to west down the center of the tract. Plaintiff sold the

parcels by acts which referenced an attached survey. The survey showed the north

and south lines of each lot extending out into the blacktop road on the east and to the

center of broken parallel lines on the south, which lines were similar to the

delineation of the Lee Hughes Road (though the area within the lines was unnamed

and not designated as a " road"). Id. at 29- 30. The defendants claimed that there was

no servitude. In finding that a servitude had been established the court stated:

It was the clear intention of plaintiff, as developer of the subdivision, to create a servitude of passage for all of the lots in its proposed subdivision to connect with Lee Hughes Road on the east. Without the servitude, all of the lots that did not front on Lee Hughes Road would be inaccessible, and it would be impossible to develop the subdivision. This intention of plaintiff is reflected in the survey of August 29, 1978, referred to and attached to the act of sale from plaintiff to defendants' ancestors in title. It was also referred to in the sale to defendants. ...

It is clear that the servitude was established by title in accordance with La.] C. C. art. 740. The sale from [ plaintiff] to defendants' ancestor in title created the servitude. Attached to that act of sale was a plat depicting the servitude, and the description in defendants' title referred to the survey attached to the previous sale. Id. at 30.

At the trial of this matter, Mr. Dalton' s deposition was introduced into

evidence. In his deposition, Mr. Dalton testified that when he acquired the 12 -acre

tract, he thought it was probable that he would sell off parts of the property. With

that intent, he had the property surveyed and included a 60 -foot right-of-way to

provide access to Parker Road. He testified that a 60 -foot right-of-way was

consistent with his experience as being wide enough for fire department regulations.

9 Mr. Dalton further testified that the survey, which included the 60 -foot right-of-way, was recorded. Mr. Dalton' s intention to create a servitude was clear, and was

reflected in the July 18, 2001 survey.

In addition, surveys were prepared in connection with the sales of each of the

four parcels. The sales from the Daltons to Mr. Crain referred to surveys dated

August 15, 2003 and August 19, 2003. Both surveys depicted the 60 -foot servitude.

The sale from the Daltons to Ms. Brehm referenced the June 12, 2009 survey

prepared for her in connection with the sale, as well as the August 15, 2003 survey

prepared for Mr. Crain. The June 12, 2009 survey depicted the 60 -foot servitude.

Moreover, Ms. Brehm was aware of the 60 -foot servitude, as is evidenced by her

attempt to amend it to a 12 -foot right of way by act dated September 18, 2014.

Thus, we find that the trial court erred in finding that a 60 -foot servitude was

not established by the sales from the Daltons to the parties. We therefore reverse

that part of the March 21, 2019 judgment decreeing that Ms. Brehm' s property was

subject to a servitude of passage limited to the existing gravel road known as

Morning Mist Lane, and prohibiting the Amackers from using, traveling, or walking

on any portion of Ms. Brehm' s property other than on Morning Mist Lane. The

Amackers are entitled to use of the 60 -foot right-of-way in accordance with the rules

set forth in the La. Civil Code.'

CONCLUSION

For the above and foregoing reasons, the March 21, 2019 judgment of the trial

court is affirmed in part and reversed in part. We reverse that part of the judgment

decreeing that Ms. Brehm' s property was subject to a servitude of passage limited to

1 The Amackers do not assign error to the trial court' s rulings ordering that they are permanently enjoined from harassing Ms. Brehm in any way, including yelling at her or playing excessively loud music at any time; and awarding Ms. Brehm damages in the amount of $6, 000. 00, plus court costs. Thus, these rulings are not subject to review in this appeal. See Rule 1- 3, Uniform Rules— Courts of Appeal; Hurst v. Cirrus Allied, 2017- 0731 ( La. App. 1 Cir. 1/ 8/ 18), 241 So. 3d 1177, 1181. Moreover, given the evidence in the record, we do not find that the interest ofjustice clearly requires review of these rulings.

10 the existing gravel road known as Morning Mist Lane, and prohibiting the Amackers

from using, traveling, or walking on any portion of Ms. Brehm' s property other than

on Morning Mist Lane, and render judgment that Scott and Monica Amacker are

entitled to use of the 60 -foot right- of-way in accordance with this opinion. The

remainder of the judgment permanently enjoining the Amackers from harassing Ms.

Brehm in any way, including yelling at her or playing excessively loud music at any

time, and awarding her damages in the amount of $6, 000. 00, plus court costs, is

affirmed. Costs of this appeal are assessed against plaintiff, Rhonda Brehm.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.