THERESA SEAFOOD, INC. v. Berthelot

40 So. 3d 132, 2009 La.App. 4 Cir. 0814, 2010 La. App. LEXIS 716, 2010 WL 830965
CourtLouisiana Court of Appeal
DecidedMay 12, 2010
Docket2009-CA-0814
StatusPublished
Cited by12 cases

This text of 40 So. 3d 132 (THERESA SEAFOOD, INC. v. Berthelot) 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
THERESA SEAFOOD, INC. v. Berthelot, 40 So. 3d 132, 2009 La.App. 4 Cir. 0814, 2010 La. App. LEXIS 716, 2010 WL 830965 (La. Ct. App. 2010).

Opinions

MICHAEL E. KIRBY, Judge.

|Jn this dispute between adjacent property owners in St. Bernard Parish, defendant, Robert C. Berthelot, appeals the trial court judgment, which addressed issues raised by both plaintiff, Theresa Seafood, Inc. (“TSI”) and defendant. For reasons that follow, we affirm.

TSI has operated a wholesale seafood business in its current location since 1991. In 1982, Mr. Berthelot sold the property on which TSI now operates to a commercial partnership that did business as Christian Seafood Company. In that transaction, Mr. Berthelot also conveyed to Christian Seafood all rights of ingress and egress via a 50 foot access road and use of a water line on his property. Mr. Berthelot owns the property surrounding the property conveyed to Christian Seafood in 1982 and currently owned by TSI. In a subsequent agreement entered into with Christian Seafood in 1986, Mr. Ber-thelot stipulated that all future owners of the property would be allowed use of the access road and water line “upon their continued payment of their prorata [sic] share of the cost of maintenance of same.” This agreement further required the owner of the property to keep the area “free of 12trash and debris, and in a neat and orderly condition.” Christian Seafood subsequently sold the property to Red Gap, Inc., and Red Gap, Inc. sold to the owner of TSI in 1991.

The litigation in the instant case began when TSI filed a petition for injunctive relief and damages against Mr. Berthelot, claiming that since Hurricane Katrina, Mr. Berthelot has attempted to disrupt and damage TSI’s business by 1) cutting off water, 2) placing concrete barricades along the access road thereby preventing seafood trucks from easy ingress and egress to TSI, and 3) attempting to charge exorbitant fees for road access in contradiction of the terms of the sale to TSI. According to TSI, prior to Hurricane Katrina in 2005, it paid Mr. Berthelot $300.00 to $500.00 per month for water and another $500.00 per month to lease parking space in the empty lot adjoining TSI. In the petition, TSI claims that it is entitled to free water under the 1986 agreement.

TSI also complains that the barricades placed on the access road by Mr. Berthelot limit the width of access to 20 feet, rather than the 50 feet guaranteed under the above-mentioned agreements. According to TSI, the barricades prevent large trucks from maneuvering in and out of its business, and were placed there by Mr. Ber-thelot for harassment purposes. TSI also claims that Mr. Berthelot has refused to continue leasing the parking lot to it. In [135]*135addition to damages to its business allegedly caused by Mr. Berthelot’s actions, TSI also asks for Mr. Berthelot to be enjoined from 1) blocking the access road, 2) restricting the water rights of TSI, 3) billing TSI for charges not owed under the 1986 agreement, 4) ^entering the premises of TSI and 5) harassing persons entering and/or doing business with TSI.

In response to the petition of TSI, Mr. Berthelot filed a reconventional demand for injunctive relief and damages. On the issue of the agreement regarding TSI’s water usage, Mr. Berthelot states that although TSI is responsible for its pro rata share of the water costs, prior to Hurricane Katrina, he charged them only $500.00 per month, which was less than TSI’s pro rata share. Following Hurricane Katrina, Mr. Berthelot advised TSI that he would not turn the main water line back on until he could get a plumber to check for leaks to the line. According to Mr. Berthelot, TSI could have turned on water from another meter on the property but would have been responsible for all water that went through that meter, including water leaking from broken or damaged pipes. TSI chose not to do so. Mr. Berthelot contends that nothing in the 1986 agreement or any other agreement involving the subject property entitles TSI to free water as TSI contends in its petition for injunctive relief and damages.

As for the issue of the parking lot rented by Mr. Berthelot to TSI prior to Hurricane Katrina, he contends that this was an oral month-to-month lease, and he is completely within his rights to refuse to continue leasing that space to TSI, regardless of TSI’s contention that this property is essential to its ability to carry on its business. Mr. Berthelot states that the parking lot previously leased to TSI is not included in the servitude of passage granted in TSI’s title to the property. He |,tsaid he will no longer lease the parking lot to TSI because heavy trucks used by TSI’s business invitees caused damage to the property.

Mr. Berthelot claims that he was justified in placing barricades along the paved access road that is 20 feet wide, because the remaining 30 foot balance of the servitude is for utility poles. Mr. Berthelot also complained of TSI’s placement of garbage dumpsters within the servitude area. He contends that the servitude granted to TSI is for ingress and egress only, and does not include parking, loading and/or unloading or placement of dumpsters. Mr. Berthelot further alleges that TSI is responsible for any deficiency in space for the operations of its commercial customer’s large trucks because TSI chose to erect structures on property that could have otherwise been used for the maneuvering of large trucks.

Subsequent to Mr. Berthelot’s filing of his reconventional demand for injunctive relief and damages, he filed a petition for injunctive relief. In that petition, he alleged that TSI had extended its dock by adding concrete and building an overhang, which encroached onto Mr. Berthelot’s property. He claimed that TSI then dug up a portion of the concrete and laid a fuel line, pump, lift and suction line, all on the property that is the subject of this litigation. TSI responded to Mr. Berthelot’s petition, denying that the fuel line is on the property at issue.

After trial in this matter, the trial court rendered judgment, in which the court issued the following permanent injunctions:

(1) allowing the placement of any barricade or structure by Mr. Berthelot along the southern side of the fifty (50) foot access road servitude 15and preventing any employee or agent of TSI from removing or damaging said barricade;
[136]*136(2) preventing any employees, agents or customers of TSI from entering or leaving TSI except via the access road or via the waterway designated as the slip and specifically prohibiting any employees, agents or customers from driving, turning, parking or in any way traveling on any land other than the fifty (50) foot access road servitude;
(3) enjoining Mr. Berthelot, his agents and employees from entry upon TSI property and harassing or bothering any of TSI’s employees or customers; and
(4) enjoining TSI’s owners and employees from parking any vehicles or storing any dumpsters, forklifts, pallets, trash, debris or any other machinery within the boundary of the fifty (50) foot access road.

The trial court further ordered that TSI must pay its pro rata share of all maintenance costs of the access road and the water line servicing its business, with said payment being TSI’s percentage of the total entities using said roadway and water line. The trial court denied TSI’s claims for damages for denial of water rights, general damage and business interruption. The court denied Mr. Berthelot’s claims for payment of unpaid water bills due to his failure to establish any agreement as to the amount of water payment following Hurricane Katrina.

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40 So. 3d 132, 2009 La.App. 4 Cir. 0814, 2010 La. App. LEXIS 716, 2010 WL 830965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theresa-seafood-inc-v-berthelot-lactapp-2010.