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Thompson v. FRF Properties, LLC

Court of Appeals of Louisiana, Fourth Circuit

November 2, 2017

ANGELE SCHOTT THOMPSON, WIFE OF AND ALPHONSE M. THOMPSON, JR.
v.
FRF PROPERTIES, LLC AND JODY FERCHAUD

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-03351, DIVISION "B" Honorable Regina H. Woods, Judge

          Al M. Thompson, Jr. AL M. THOMPSON, JR., L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE

          Irl R. Silverstein David A. Silverstein THE SILVERSTEIN LAW FIRM, A PLC COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown

          Paula A. Brown, Judge.

         This matter involves the termination of a predial servitude. Appellants, FRF Properties, LLC and Jody Ferchaud (collectively, "FRF"), appeal the trial court's judgment which granted the Petition to Terminate Servitude for Non-Use (the "Petition") filed on behalf of Appellees, Angele Schott Thompson and Alphonse M. Thompson, Sr. (collectively, the "Thompsons"). For the reasons that follow, we reverse.

         STATEMENT OF FACTS

         The Thompsons are the owners and occupants of property located at 384 Audubon Street ("384 Audubon") in New Orleans, Louisiana, Lot 11-A. FRF owns property located at 390 Audubon Street ("390 Audubon") in New Orleans, Louisiana, Lot 13-A-which is presently a four-plex. Through an act of sale dated June 2, 1967, the Thompsons' ancestor in title created a servitude of right-of-way in favor Lot 13-A for the purpose of maintaining a driveway to provide access to Lot 13-A. The servitude terms stated in part:

There is hereby created and reserved, in favor of lot 13-A, the property herein conveyed on the side toward Pitt Street and in favor of the present and future owners of said lot 13-A, a servitude of right-of-way for the purpose of maintaining and using a driveway for access to the said lot 13-A, said servitude affecting a strip of land fronting 3 feet on Audubon Street by a depth between equal and parallel lines of 101 feet, 4 inches, 5 lines, a width in the rear of 3 feet, said strip of land commencing at the point of intersection of the line of Audubon Street and the line dividing lot 11-A from lot 13-A, all as shown on the aforementioned plat of survey attached hereto.

         The properties are adjacent to each other. The properties are separated by a driveway, which consists of two parallel lines of concrete strips-one strip on 384 Audubon, the servient estate, and the other strip on 390 Audubon, the dominant estate. A three feet wide space exists between the parking strips.[1] The servitude[2]runs from the street to a garage structure located in the rear of the 390 Audubon property.

         On or about March 31, 2016, Jody Ferchaud took possession of the lower unit of the four-plex at 390 Audubon property, the unit nearest to Prytania Street. A dispute ensued between the Thompsons and Mrs. Ferchaud. The Thompsons alleged that Mrs. Ferchaud improperly parked her vehicle on the servitude area, blocked their view, destroyed their vegetation, and threatened the Thompsons. As a result of the dispute, the Thompsons filed their Petition. The Petition alleged, in part, that since the Thompsons moved to 384 Audubon on February 3, 2000, a fence[3] had been erected across the 390 Audubon side of the parking strips and that the servitude had not been used to access the rear of the property. The Petition further alleged that Mrs. Ferchaud, by parking her vehicle on the servitude, violated its original intent-to facilitate passage to the rear of the property. Accordingly, the Thompsons sought the following: 1) to extinguish the servitude for nonuse; 2) to enjoin Mrs. Ferchaud from parking on any portion of the servitude or damaging the Thompsons' vegetation; and 3) monetary damages.

         The trial court conducted a trial on the merits regarding the termination of the servitude and the Thompsons' request for damages on July 8, 2016.[4] In addition to their testimony, the Thompsons called Peter Dodge, Jeanne Landry, and Ivan Mandich as supporting witnesses.[5]

         Peter Dodge testified that he lived at his Broadway Street home since 1976. His house is located directly behind 384 Audubon and partially behind 390 Audubon. Mr. Dodge stated the rear of the property located at 390 Audubon was generally unkempt and that a fence separated the two Audubon Street properties. Mr. Dodge said that he had never seen a vehicle traverse the parking strips between 384 and 390 Audubon. He also stated that he had not seen vehicles parked in the rear of the properties during the time he has lived in his Broadway home.

         Jeanne Landry, a regular visitor and long-time friend of the Thompsons, testified that a full row of azaleas on the Thompsons' side of the two parking strips had been cut. Similar to Mr. Dodge, Ms. Landry said the rear area of 390 Audubon was neglected and she noted a chain fence had been erected. Ms. Landry also testified that she never saw a vehicle parked in the driveway of the four-plex, nor had she ever seen a vehicle travel across the parking strips to enter the rear of the four-plex. Ms. Landry also identified a photograph depicting the Thompsons' azalea bushes and a vehicle parked on the parking strips; however, she could not confirm whether the azaleas impeded the driveway or whether the vehicle was actually parked on the 384 Audubon parking strip.

         Ivan Mandich, a nearby neighbor of the Thompsons, said he regularly passed 384 and 390 Audubon Street. According to Mr. Mandich, he had never seen any vehicles drive across the parking strips between the adjacent properties, nor had he ever seen any vehicles parked there. He added a vehicle could not easily park there because of the narrow passage way and the presence of a stump.

         Mrs. Thompson verified that she had lived at 390 Audubon since 2000. She met Mrs. Ferchaud on March 31, 2016. Mrs. Thompson testified that after Mrs. Ferchaud drove up in her vehicle, she told Mrs. Ferchaud that she could not park on the parking strips. In response, she said Mrs. Ferchaud screamed that "as the owner, she could park wherever she wanted." Mrs. Thompson stated that on the ensuing Sunday, April 2, 2016, she saw Mrs. Ferchaud clip her azalea bushes.

         Mrs. Thompson described the servitude area from its rear portion towards Audubon Street. She noted that there was a chain link fence, "a bunch of overgrown stuff, " and a tree stump in the area of the servitude. Mrs. Thompson testified that the structure in the rear of 390 Audubon had collapsed and only a concrete slab remains in its place. Mrs. Thompson said two parallel concrete parking strips remain on the front portion of the lot-one on the 390 Audubon side of the property and the second on her property at 384 Audubon. Mrs. Thompson testified that the servitude had not been used for passage since she and her husband purchased their home in February 2000 and she never consented to allowing anyone to park on the parking strip located on 384 Audubon.

         Mr. Thompson testified that he had never given anyone permission to park on the 384 Audubon parking strip and no one had ever sought his permission to do so. He identified photographs of his property and the general area of the servitude. Mr. Thompson complained that Mrs. Ferchaud continued to park on the 384 Audubon parking strip, notwithstanding a consent judgment which precluded her from doing so. He said he had never seen anyone access the rear of 390 Audubon by driving on the parking strips, nor had he seen anyone walk on the ...


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