ANGELE SCHOTT THOMPSON, WIFE OF AND ALPHONSE M. THOMPSON, JR.
FRF PROPERTIES, LLC AND JODY FERCHAUD
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-03351,
DIVISION "B" Honorable Regina H. Woods, Judge
Thompson, Jr. AL M. THOMPSON, JR., L.L.C. COUNSEL FOR
Silverstein David A. Silverstein THE SILVERSTEIN LAW FIRM, A
PLC COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Roland L. Belsome, Judge Daniel L. Dysart,
Judge Paula A. Brown
A. Brown, Judge.
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.
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.
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. The servituderuns from the street to a
garage structure located in the rear of the 390 Audubon
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 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.
trial court conducted a trial on the merits regarding the
termination of the servitude and the Thompsons' request
for damages on July 8, 2016. In addition to their testimony,
the Thompsons called Peter Dodge, Jeanne Landry, and Ivan
Mandich as supporting witnesses.
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.
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
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.
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.
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.
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 ...