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Hoffoss v. Alex, LLC

Court of Appeal of Louisiana, Second Circuit

March 4, 2015

JOHN L. HOFFOSS, AS AGENT FOR YVONNE U. HOFFOSS, Plaintiff-Appellee
v.
ALEX, LLC D/B/A NICKY'S MEXICAN RESTAURANT OF MINDEN, ELIAS S. SIFUENTES AND LOS HOMBRES, INC., Defendant-Appellant

Appealed from the Minden City Court Parish of Webster, Louisiana. Trial Court No. 23266. Honorable John C. Campbell, Judge.

JUDGMENTS VACATED; ACTION DISMISSED WITHOUT PREJUDICE.

DAVID L. WHITE, Counsel for Appellant.

J. LEE HOFFOSS, JR., Counsel for Appellee.

Before WILLIAMS, CARAWAY and PITMAN, JJ.

OPINION

Page 662

[49,649 La.App. 2 Cir. 1] WILLIAMS, J.

The defendants, Alex, LLC, d/b/a Nicky's Mexican Restaurant of Minden, Elias Sifuentes and Los Hombres, Inc., appeal a judgment sustaining an exception of no right of action and a judgment in favor of plaintiff, John Hoffoss, as agent for Yvonne Hoffoss, ordering defendants to remove from their property any impediment to the natural drainage of surface water from plaintiff's property within 90 days from the date of judgment. Noting that the servitude of natural drainage involves real rights and obligations of ownership in immovable property, we conclude that the city court lacked subject matter jurisdiction in this case. Therefore, we vacate the judgments and dismiss the plaintiff's action without prejudice.

FACTS

Yvonne Hoffoss owns a tract of land with a house in Dixie Inn, Webster Parish. The adjoining tract of land on the east side was lower in elevation. As a result, surface water naturally drained from the Hoffoss

Page 663

property, the dominant estate, across the adjacent tract, the servient estate, into a ditch along a public highway. In 1991, the adjacent servient estate was purchased by Newt Brown Contractors, LLC (" Newt Brown" ), which cleared the land and raised the elevation of the lot. After the contour of the property was elevated, the surface water from the Hoffoss tract appeared to continue draining as before for a number of years. Newt Brown later sold the land to D.D. Smith, Inc., which constructed a building on the property. In 2000, the land and building were leased to Alex, LLC, for operation of a Nicky's Mexican Restaurant (" Nicky's" ). In 2011, the owner of Nicky's, Elias Sifuentes, bought the property.

[49,649 La.App. 2 Cir. 2] In June 2011, the Village of Dixie Inn performed repairs to seal holes in the sewer line running along the north boundary of the Hoffoss and Nicky's tracts of land. In October 2011, Yvonne Hoffoss's son, John Hoffoss, observed a significant impoundment of water in the back yard of her property that did not drain. Hoffoss determined that apparently, the natural drainage from the Hoffoss property had been blocked by the increased elevation of the Nicky's property, but the obstruction was not noticeable because the water was able to drain into the sewer due to the cracks in the line. However, once the sewer line was repaired in 2011, the surface water from the Hoffoss property did not have anywhere to go because the higher elevation of the Nicky's property was blocking the natural drainage.

Subsequently, the plaintiff, John Hoffoss, as agent for Yvonne Hoffoss, filed a petition for damages in Minden City Court against the defendants, Alex, LLC, d/b/a Nicky's Mexican Restaurant of Minden, Elias Sifuentes and Los Hombres, Inc. The plaintiff alleges that the increased elevation of the Nicky's property has obstructed the servitude of natural drainage of water from the Hoffoss property. The defendants filed an answer and a third party demand alleging that Newt Brown was liable ...


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