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Brehm v. Amacker

Court of Appeals of Louisiana, First Circuit

December 7, 2017


         On appeal from the Twenty-Second Judicial District Court In and for the Parish of Washington State of Louisiana Docket Number 107519 Honorable Reginald T. Badeaux, III, Judge Presiding

          Chad A. Danenhower Counsel for Covington, LA Plaintiff/Appellee Rhonda Brehm

          Trent P. Temples Bogalusa, LA Counsel for Defendants/ Appellants Scott and Monica Amacker


          GUIDRY, J.

         Defendant landowners appeal a judgment declaring a servitude in favor of their property to be less extensive than allegedly indicated in their act of sale.


         On July 20, 2001, William and Jeanne Dalton purchased a 12-acre tract of land in Washington Parish.[1] The tract acquired by the Daltons fronted on Parker Road, a Parish blacktop road, on its southern-most boundary. In 1999, "a perpetual servitude of passage for a roadway over and across the existing gravel road which runs from the north margin of Parker Road" was established and recorded by the Daltons' predecessor in title.[2]

         In March 2003, the Daltons sold a three-acre plot from the above-referenced tract to Scott and Monica Amacker. The plot sold to the Amackers was not adjacent to Parker Road. Over six years later, on June 29, 2009, Rhonda Brehm purchased 5.994 acres of the aforementioned tract owned by the Daltons. The land purchased by Ms. Brehm included the southern-most portion of the Daltons' tract that fronted on Parker Road; however, as referenced in the 1999 right of way agreement, a gravel road, known as Morning Mist Lane, ran along the length of the eastern edge of both the Amackers and Ms. Brehm's properties and acted as a private roadway whereby both properties had access Parker Road.[3]

         Despite the existence of Morning Mist Lane, troubles arose between the Amackers and Ms. Brehm regarding the width of the servitude of passage to Parker Road. On October 30, 2014, Ms. Brehm filed a "Petition for Possessory Action[, ] Declaratory Judgment, Temporary Restraining Order, Injunctive Relief and Damages" against the Amackers, wherein she alleged that the Amackers had trespassed on and destroyed portions of her property, as well as interfered with her quiet and peaceful enjoyment of her property. Pursuant to a show cause order issued by the trial court, a hearing relative to Ms. Brehm's petition was held on November 20, 2014. The Amackers appeared at the hearing without legal counsel.

         At the hearing, Mrs. Amacker testified that when she and her husband purchased their property from the Daltons in 2003, Mr. Dalton agreed to furnish a 60-foot right-of-way as indicated on a plat attached to their purchase agreement. Mrs. Amacker testified that the plat that was attached to the purchase agreement showed 12 acres with a 60-foot right-of-way running along the eastern edge of all 12 acres to Parker Road. Although Mrs. Amacker testified regarding the purchase agreement with the attached plat, and also about the act of sale whereby the Daltons acquired the land in dispute, the actual documents were not introduced into evidence at the hearing.

         Ms. Brehm also testified at the hearing. She identified several photographs that were introduced into evidence. Some of the photos depicted Mr. Amacker and the Amackers' thirteen-year-old daughter driving on or along Morning Mist Lane on a four wheeler. One photo showed what appears to be five people riding on a four wheeler as it was being driven by Mr. Amacker. Other photos showed Mrs. Amacker, the Amackers' daughter, and some persons that Ms. Brehm identified as being guests of the Amackers, walking some distance from Morning Mist Lane in a grassy area adjacent to the gravel roadway. Ms. Brehm also identified some photos of flags that had been placed on her property by Mrs. Amacker to mark the distance of where the 60-foot servitude claimed by the Amackers would extend onto Ms. Brehm's property.

         In identifying most of the photos, Ms. Brehm stated that she either took the photos personally or the photos were taken by security cameras that she had placed on her property.[4] She explained that some of the photos introduced into evidence not only showed Mr. Amacker walking on her property some distance from Morning Mist Lane, but the photos also showed Mr. Amacker moving or tampering with Ms. Brehm's security cameras. Other photos identified by Ms. Brehm show grass that she claimed was "all torn up, " missing, or dying because of people driving on her property, beyond the 60-foot servitude claimed by the Amackers.

         Ms. Brehm also recounted how the Amackers had: removed flags she had placed on her property to mark areas that she believed were unsafe; torn down a gate at the entrance of Morning Mist Lane despite possessing a key to the gate; hindered a worker she had hired from constructing a fence on her property along the length of Morning Mist Lane; and played loud, vulgar music to disturb her peaceful enjoyment of her property.

         In addition to the foregoing evidence, a copy of Ms. Brehm's June 29, 2009 act of sale, the 1999 recorded right of way agreement, and incident reports from the Washington Parish Sheriffs Office, were introduced into evidence.

         After hearing the testimony[5] arid considering the other evidence presented, the trial court ruled in favor of Ms. Brehm, declaring that her property was only subject to a servitude of passage the width of the existing gravel road, which is about 12 feet in width. The trial court assessed damages against the Amackers in the amount of $1, 358.00, for the lost wages and emotional distress suffered by Ms. Brehm, plus court costs. The trial court also issued a permanent injunction against the Amackers prohibiting them and their agents, assigns, or anyone acting on their behalf from "veering off [Morning Mist Lane] onto [Ms. Brehm's] property harassing her, yelling at her, cursing her or her guests, and playing excessively loud music any time of the day or night such that it would interfere with [Ms. Brehm's] peaceful possession of her property." A written judgment to that effect was signed by the trial court on December 29, 2014.

         Notice of the December 29, 2014 judgment was issued on January 13, 2015. Following the hearing, however, the Amackers secured legal counsel. On Friday, January 23, 2015, [6] counsel for the Amackers filed a pleading entitled "Motion to Enroll as Counsel of Record and Motion for New Trial." The trial court granted the motion to enroll and set the motion for new trial for a hearing.

         In conjunction with the motion for new trial, Mrs. Amacker submitted an "Affidavit of Verification, " wherein she stated that at the original hearing, she had attempted to introduce a certified copy of the credit sale by which she and her husband had acquired their property from the Daltons. She explained that she failed to do so because when she presented the document to counsel for Ms. Brehm, he "shook his head" and handed the document back to her. Mrs. Amacker also stated that she telephoned Mr. Dalton on October 28, 2014, at which time she stated that Mr. Dalton told her he "remembered establishing the sixty (60) foot servitude for the benefit of all four (4) of the three (3) acre tracts which he subdivided and sold, " but she did not receive Mr. Dalton's written confirmation of his recollections until January 22, 2015. The Amackers attached to their motion for new trial a copy of the January 22, 2015 correspondence from Mr. Dalton, which included a copy of a plat signed by the Amakers as purchasers and the Daltons as sellers. The Amackers also attached a copy of the credit sale whereby they acquired their property from the Daltons.

         Prior to the hearing on the Amackers' motion for new trial, Ms. Brehm filed a motion for contempt, alleging that the Amackers had violated the court's December 29, 2014 judgment "by intimidating and threatening workers on [her] property and interfering with [her] peaceful enjoyment of her property." Accordingly, on March 16, 2015, the trial court considered both the Amackers' motion for new trial and Ms. Brehm's motion for contempt. Following a hearing, the trial court denied the Amackers' motion for new trial and granted Ms. Brehm's motion for contempt, finding that the Amackers had violated the December 29, 2014 judgment of the court. In a judgment signed April 20, 2015, the trial court ordered the Amackers to pay Ms. Brehm's attorney fees for the proceeding in the amount of $1, 500.00, court costs in the amount of $340.00, and a fine in the amount of $250.00. The Amackers later filed a motion to devolutively appeal the December 29, 2014 and the April 20, 2015 judgments, which the trial court granted by an order signed May 15, 2015.

         ISSUES ...

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