from the Nineteenth Judicial District Court In and for the
Parish of East Baton Rouge, State of Louisiana Docket Number
C608569 Honorable Janice Clark, Judge Presiding
A. St. Amant, Baton Rouge, LA Counsel for Plaintiffs
/Appellants, Bob Welch and Daniel Hoover
Cynthia C. Bohrer Frank Gremillion Baton Rouge, LA Counsel
for Defendant /Appellee, City of Baton Rouge & Parish of
East Baton Rouge
L. McCullough Baton Rouge, LA Counsel for Defendant
/Appellee, 2590 Associates, LLC
E. Balhoff Judith R. Atkinson Carlton Jones, III Baton Rouge,
LA Counsel for Intervenor /Appellee, Glasgow Partners, LLC
BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.
appeal arises from a possessory action brought by neighboring
property owners to enforce their rights to a conventional
servitude of passage. Following a trial, the trial court
rendered judgment, dismissing plaintiffs' claim with
prejudice and denying plaintiffs' requests for a
permanent injunction and damages. From this judgment,
plaintiffs appeal. For the following reasons, we reverse and
render judgment in favor of plaintiffs, and remand the matter
for a determination of damages.
AND PROCEDURAL BACKGROUND
30, 2009, a judgment of possession was rendered in the
Succession of Mary Lillian Bordelon Ford ("Ford's
succession"). The judgment of possession granted
plaintiff Bob D. Welch ownership of 3.714 acres, known as
Tract A in East Baton Rouge, and a one-half ownership
interest in adjoining property identified as Tract C.
Likewise, the judgment of possession granted plaintiff Daniel
T. Hoover ownership of .7065 acres, known as Tract B, and a
one-half ownership interest in the property identified as
Tract C. The judgment of possession further declared that
Tracts A, B, and C included the benefit of the apparent
servitude, as shown on a map and survey that was paraphed for
identification with the will of Mary Lillian Bordelon Ford.
The paraphed map depicted and dedicated a thirty-foot private
access servitude to Tracts A, B, and C. The map depicted
the servitude as containing two fifteen-foot wide lanes,
running from tracts A, B, and C to a public street,
identified as Glasgow Avenue. The map specifically stated
that no trees, shrubs, or plants may be planted, nor shall
any building, fences, or other improvements be constructed,
within or over the servitude so as to prevent or unreasonably
interfere with its purpose, and moreover, that the
City-Parish has no responsibility for the maintenance of the
2590 Associates, L.L.C. ("2590") acquired the
118.72 acres that surrounded Tracts A, B, and C, including
the land over which the servitude ran, and proceeded to
develop the land into a traditional neighborhood development
("TND"), known as Rouzan. In November of 2011, 2590
submitted an application to the East Baton Rouge Planning
Commission for the approval of "phase 3B
(Creekside)" of Rouzan.
January 23, 2012, Welch and Hoover filed a petition for
possessory action, with requests for injunctive relief and
damages, naming the Planning and Zoning Commission of the
Parish of East Baton Rouge and 2590 as defendants. The
petition alleged that plaintiffs' possession of the
servitude was disturbed by 2590's actions in submitting
an application to the planning and zoning commission for the
approval of Phase 3B. Specifically, plaintiffs alleged that
the application for Phase 3B provided for a conversion of
part of their private servitude to a public road and the
abolishment of the remainder of the servitude. The petition
further alleged that the Planning and Zoning Commission had
also disturbed plaintiffs' rights to the servitude by
recommending to the East Baton Rouge Metropolitan Council
that the application for Phase 3B be approved. Plaintiffs
sought a permanent injunction, prohibiting further
disturbances of their possession of the servitude and
restoring them to undisturbed possession of the servitude.
Plaintiffs also sought a preliminary injunction, prohibiting
defendants from submitting and approving any plans which
further disturbed their possession of the servitude.
litigation proceeded, and prior to a ruling on
plaintiffs' request for a preliminary and permanent
injunction, the application for the development of Phase 3B
was approved by the Metropolitan Council and construction
began on Phase 3B. Accordingly, plaintiffs filed two amending
petitions, alleging further disturbances to their servitude
of passage and amending their request for injunctive relief.
prior to a ruling on plaintiffs' request for a
preliminary injunction and permanent injunction, 2590 filed a
motion for declaratory relief, seeking a judicial declaration
that it could legally relocate plaintiffs' servitude of
passage and that plaintiffs are not entitled to exclusive use
of any relocated servitude of passage. In response to
2590's motion for declaratory judgment, plaintiffs filed
a motion for declaratory judgment averring that 2590 was not
entitled to relocate the servitude until the requirements of
LSA-C.C. art. 748 were satisfied. The trial court rendered a
judgment on March 21, 2012, granting 2590's motion for
declaratory judgment, and denying plaintiffs' motion for
sought review of the March 21, 2012 ruling of the trial court
by filing an application for supervisory writs with this
court. Prior to this court rendering a decision on the writ
application, 2590 filed into the public records for East
Baton Rouge Parish notice of a temporary servitude of
passage. However, the temporary servitude extended from the
"dominant estate" to Perkins Road, not Glasgow
Avenue. By letter dated April 2, 2012, 2590
notified plaintiffs of the new temporary servitude location
and that the former servitude would become impassible.
on August 13, 2012, this court granted plaintiffs'
application for supervisory writs, in part, and reversed the
trial court's grant of 2590's motion for declaratory
judgment. In granting writs, this court noted that a
declaratory judgment action is an ordinary proceeding that
must be commenced by the filing of a petition, not by motion.
Welch v. East Baton Rouge Planning Commission, 2012
CW 0619 (La.App. 1st Cir. 8/13/12) (unpublished writ action).
the filing of another application for supervisory writs by
plaintiffs, this court again granted writs, in part, and
issued a writ of mandamus on November 15, 2012, ordering the
trial court to render a decision on the preliminary
injunction sought by plaintiffs on or before November 29,
2012. Welch v. East Baton Rouge Planning Commission,
2012 CW 1875 (La.App. 1st Cir. 11/15/12) (unpublished writ
on December 3, 2012, the trial court rendered judgment,
denying plaintiffs' request for a preliminary injunction,
stating "petitioners failed to preponderate on the issue
of likely to succeed on the merits and demonstrate
irreparable injury and harm." On January 8, 2013, this
court granted writs; reversed the denial of plaintiffs'
application for a preliminary injunction; granted
plaintiffs' application for a preliminary injunction; and
remanded the matter to the trial court to fix the amount of
security to be furnished by plaintiffs. Welch v. East
Baton Rouge Planning Commission, 2012 CW 2078 (La.App.
1st Cir. 1/8/13) (unpublished writ action).
a contradictory hearing on the amount of security to be paid
by plaintiffs, the trial court ordered plaintiffs to pay
security in the amount of: $1, 000, 000.00 commercial surety
bond, $500, 000.00 property bond, and $100, 000.00 cash to be
submitted into the registry of the court. Plaintiffs were
unable to satisfy these security requirements.
trial on the merits of plaintiffs' petition for
possessory action and requests for injunctive relief and
damages was conducted on August 20 and 21, 2013. Following
the trial, the trial court took the matter under advisement
and ordered all parties to submit proposed findings of fact,
conclusions of law, and a proposed judgment.
October 1, 2015, the trial court rendered judgment,
dismissing plaintiffs' claims against 2590. From this
judgment, plaintiffs filed the instant appeal which we will
subsequently refer to as "Welch I, " contending
that the trial court erred in dismissing plaintiffs'
claims, denying ...