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Welch v. Planning & Zoning Commission of East Baton Rouge Parish & 2590 Associates, LLC

Court of Appeals of Louisiana, First Circuit

April 26, 2017

BOB WELCH & DANIEL HOOVER
v.
PLANNING & ZONING COMMISSION OF EAST BATON ROUGE PARISH & 2590 ASSOCIATES, LLC

         Appealed 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

          Alexis 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

          Brian L. McCullough Baton Rouge, LA Counsel for Defendant /Appellee, 2590 Associates, LLC

          Thomas 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.

          WHIPPLE, C.J.

         This 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On July 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.[1] 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 servitude.

         Defendant 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.

         On 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.

         As the 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.

         Additionally, 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 declaratory judgment.

         Plaintiffs 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.[2] By letter dated April 2, 2012, 2590 notified plaintiffs of the new temporary servitude location and that the former servitude would become impassible.

         Notably, 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).

         Following 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 action).

         Nonetheless, 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).

         Following 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.[3] Plaintiffs were unable to satisfy these security requirements.[4]

         A bench 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.

         On October 1, 2015, the trial court rendered judgment, dismissing plaintiffs' claims against 2590.[5] 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 ...


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