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
A. Danenhower Counsel for Covington, LA Plaintiff/Appellee
P. Temples Bogalusa, LA Counsel for Defendants/ Appellants
Scott and Monica Amacker
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
landowners appeal a judgment declaring a servitude in favor
of their property to be less extensive than allegedly
indicated in their act of sale.
AND PROCEDURAL HISTORY
20, 2001, William and Jeanne Dalton purchased a 12-acre tract
of land in Washington Parish. 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
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.
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
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
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.
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. 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
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.
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.
hearing the testimony 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.
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,  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.
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.
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.