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Seilham v. Commonwealth Land Title Insurance Co.

United States District Court, E.D. Louisiana

December 21, 2018

KAYLA SEILHAM, et al.
v.
COMMONWEALTH LAND TITLE INSURANCE COMPANY

         SECTION: M (3)

          ORDER & REASONS

          BARRY W. ASHE UNITED STATES DISTRICT JUDGE.

         Before the Court is (1) a motion for summary judgment filed by defendant Commonwealth Land Title Insurance Company (“Commonwealth”), [1] to which plaintiffs Kayla Seilham and Baynum P. Aikman (collectively “the Aikmans”) respond in opposition, [2] and in further support of which Commonwealth replies;[3] (2) the Aikmans' motion for summary judgment, [4] to which Commonwealth responds in opposition;[5] and (3) Commonwealth's motion to exclude testimony from Ashton W. Ray and Julian J. Rodrigue, Jr., [6] to which the Aikmans respond in opposition, [7] and in further support of which Commonwealth replies.[8] Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This action involves the Aikmans' claims for breach of contract and negligence against their title insurer, Commonwealth, stemming from a civil action in state court in which the Aikmans' neighbors sued them for recognition of, and interference with, a servitude. The pertinent facts concerning the land at issue in that case and here have been recited by the Louisiana court of appeal for the first circuit as follows:

This litigation involves several parcels of contiguous property located in Tangipahoa Parish, more particularly depicted in the appendix hereto.1 Plaintiffs Jerelean Arnold Naramore, Tammie Naramore Steib, and Craig Steib collectively own the 9.46-acre parcel identified on the appendix by Naramore's name.2 The adjacent 9.52-acre parcel to the east is owned by plaintiffs Carol Arnold Martinson and David Henry Martinson. Defendants Baynum and Kayla Aikman own a 1.767 [acre] parcel adjacent to the southwest side of the Naramore parcel. An asphalt road, West Sam Arnold Loop, is adjacent to the west side of the Aikman parcel. A gravel road extends from West Sam Arnold Loop through the southern boundary of the Aikman and Naramore parcels. The gravel road is located within an alleged servitude shown on the Bodin survey as the long rectangular area along the southern boundaries of the Aikman and Naramore parcels, and extending across the Martinson parcel into a tract owned by Ottis S. Arnold. The use of the gravel road, and more specifically the existence of the alleged servitude, is the origin of the dispute between the parties.
All of the above property (collectively the “Arnold property”) was previously owned by Sam and Vivian Arnold, who acquired it in 1956. Although unclear when the gravel road was built, Sam and Vivian, along with their tenants, began using the road as early as 1960 to access the Arnold's home. The road was also used by the Worley family, the owners of property on the south side of the road, to access their property.
In the early 1980s, Sam and Vivian began transferring the property to their descendants. They first transferred the Martinson parcel to their daughter, Carol Martinson, on March 25, 1980. The act of sale describes the Martinson parcel, along with the following:
[A] servitude 0.45 chains in width in an East-West direction connecting the existing Public Road with servitude on property of Ottis Samuel Arnold in favor of Grace Louise Arnold Mapes, Ottis Samuel Arnold and Jerelean Avis Arnold Naramore as per plat and survey of Leey Mapes of record in COB___, page___, dated [.]
The referenced Mapes survey is dated March 20, 1979, and shows a servitude that is approximately the same in size and location as shown on the Bodin survey. The act of sale was recorded in the public records shortly after its execution, but the Mapes survey was not.
On April 28, 1982, Sam and Vivian conveyed to Jeffrey and Cynthia Arnold the 1.75 acres ultimately acquired by the Aikmans on August 13, 1993. The 1982 and 1993 conveyances do not mention the disputed servitude. On October 27, 1983, Sam and Vivian transferred the 9.46-acre parcel to Jerelean Naramore. That act of sale does not mention the servitude, but references the Mapes survey. Naramore transferred approximately four acres to her daughter, Tammie Steib, on May 29, 2008. That conveyance contained a survey identifying the gravel road.
The parties used the gravel road without any significant incidents until late 2010 or early 2011, when log trucks and other heavy equipment used the road in connection with timber operations on the Martinson parcel. Baynum objected and blocked further vehicular traffic beyond his driveway by parking a tractor on the road and pulling a large log across it. He later installed and locked a gate at the entrance to the road near West Sam Arnold Loop. Although he gave a key to some members of the Arnold family, confrontations continued. When efforts to amicably resolve the dispute failed, suit was filed on October 20, 2011.
1 The appendix is an excerpt from a survey prepared by William J. Bodin Jr., dated August 17, 2011, introduced in evidence at trial. The survey presents the properties in a west (left side of page) to east manner.
2 Naramore's name is incorrectly spelled “Naramone” on the survey.

Naramore v. Aikman, 252 So.3d 935, 937-38 (La.App. 2018).

         Prior to their neighbors suing them in state court, the Aikmans filed a claim with Commonwealth concerning the alleged servitude.[9] On April 19, 2011, Ryan S. Galer (“Galer”), Commonwealth's claims counsel, wrote to the Aikmans explaining why Commonwealth denied their claim.[10] Galer writes that the facts of the claim are as follows:

On August 13, 1993 Jeffrey Travis Arnold and Cynthia Hutcheson Arnold conveyed … the [Property] to [the Aikmans]. [The Aikmans] refinanced the Property on December 20, 2004 and purchased owner's policy of title insurance … underwritten by [Commonwealth]. There is a gravel road (the “Alleged Right-of-Way”) across the most southern portion of the Property. [The Aikmans'] neighbors, the Martinson[s], use the Alleged Right-of-Way to access their property. Prior to January 11, 2011, [the Aikmans] posted a sign along the Alleged Right-of-Way that states “do not enter private drive” and informed a relative of [their] neighbors that the Martinson[s] had no business using the Alleged Right-of-Way. … [The Aikmans] contacted the Law Offices of Gary M. Peltier on January 13, 2011 and asked Mr. Peltier whether [their] neighbor has a valid right-of-way across the Property. Mr. Peltier sent [the Aikmans] a letter dated January 18, 2011 advising [them] that … he could not find a recorded right-of-way and encouraged [the Aikmans] to submit a claim with [Commonwealth]. [The Aikmans] submitted [their] notice of claim to [Commonwealth] in a letter received by [Commonwealth] on February 3, 2011. [Commonwealth's] claims center opened [the Aikmans'] claim for investigation and administration on February 11, 2011.
[Commonwealth] contacted [the Aikmans] on March 10, 2011 to discuss [their] claim. In that telephone conversation, [the Aikmans] state that the Martinson[s] are claiming a right-of-way across the Alleged Right-of-Way. [The Aikmans] told [Galer] that the Martinson[s] claim that there is a map dating back to 1950 which shows the right-of-way. [The Aikmans] contacted the Tangipahoa Parish courthouse and the Parish engineering department. Neither the courthouse nor the engineering department were able to find a right-of-way benefitting the Martinson[s'] property. [The Aikmans] also stated that the Martinson[s] are claiming a right-of-way across the Property from a right-of-way obtained in 2006. [Commonwealth] ordered a title examination of the Property dating back to 1945. The title search does not show any easements or rights-of-way across the Property except for an easement benefitting the Consolidated Gravity Drainage District #1 of Tangipahoa Parish.[11]

Galer then described the coverage afforded by the policy and explained that the Martinsons' claim to use the right-of-way did not invoke any of the policy's covered risks.[12]Further, Galer explained that the claim fell within several of the policy's exclusions and exceptions from coverage, including an exception in paragraph three (3) of Schedule B for “[e]asements, or claims of easements, not shown by the public records.”[13] Galer explained that:

[Commonwealth's] title search does not show any easement of public record benefitting the Martinson[s'] property. Therefore, even if the Martinson[s] do have an unrecorded valid easement or claim of easement across the Property and one of the Covered Risks were invoked, your claim is excepted from coverage pursuant to paragraph three (3) of the Schedule B Exceptions from Coverage because the Martinson[s'] claim of an easement is not shown in the public records.[14]

Moreover, Galer explained that the Martinsons' claim to the right-of-way allegedly arising from a 2006 document signed by the Tangipahoa Parish Engineer that shows a public gravel road is excluded from coverage because it was created after the policy was issued.[15]

         On October 20, 2011, the Aikmans' neighbors sued them in the 21st Judicial District Court, Parish of Tangipahoa, State of Louisiana (the “servitude litigation”), seeking a declaratory judgment establishing the location of the servitude, an injunction prohibiting the Aikmans' from interfering with the use of the servitude, and damages, including attorney's fees and costs.[16]The state-court plaintiffs contend that Sam and Vivian Arnold established the servitude to connect their properties to the public road, and that it has been in continuous use since before Sam and Vivian Arnold began transferring portions of the property to their family members.[17]Specifically, the state-court plaintiffs allege that the October 27, 1983 act of conveyance from Sam and Vivian Arnold to Jerelean Arnold Naramore “provided for a servitude of access to [Naramore's] property, ” and that the servitude was “referred to in a survey plat provided by Leey Mapes dated March 20, 1979, ” and recorded in the Tangipahoa Parish public records in the chain of title related to Naramore's property.[18] They also allege that Naramore provided for a servitude of access to the tract of land she donated to her daughter Tammie Naramore Steib (“Steib”), and that it was recorded in the Tangipahoa Parish public records in the chain of title related to Steib's property.[19] Further, the state-court plaintiffs allege that the March 28, 1980 act of conveyance from Sam and Vivian Arnold to Carol Arnold Martinson (“Martinson”) “provided for a servitude of access to [Carol Ann Martinson's] property, ” and that the servitude was “referred to in a survey plat provided by Leey Mapes dated March 20, 1979, ” and recorded in the Tangipahoa Parish public records in the chain of title related to Martinson's property.[20]

         On January 30, 2012, after holding an evidentiary hearing, the state trial court issued a preliminary injunction prohibiting the Aikmans from interfering with the state-court plaintiffs' use of the alleged servitude. Naramore, 252 So.3d at 939. A trial was held in May 2017, at which the state trial court heard testimony from “[t]wenty witnesses, including three experts, ” and received “numerous exhibits, including maps, surveys, and acts of sale reflecting the chain of title for each parcel.”[21] Id.

Relying, in part, on Louisiana Civil Code article 741 allowing for the creation of a servitude by “destination of the owner, ” the [state] trial court found Sam Arnold created a servitude of passage used by the Arnold family to access the property for more than thirty years. In a judgment signed July 17, 2017, the trial court recognized the servitude of passage described in the Bodin survey, permanently enjoined the Aikmans from interfering with its use, and awarded $2, 000.00 plus legal interest to Tammie Steib and Craig Steib, $1, 000.00 plus legal interest to Jerelean Naramore and LouAnn Naramore, and $2, 000.00 plus legal interest to Carol Arnold Martinson, David Martinson, and Julie Martinson. The Aikmans appeal[ed], asserting multiple assignments of error, and plaintiffs answered the appeal, seeking an increase in damages and an award of attorney fees.
3 The named plaintiffs are Jerelean Arnold Naramore, Tammie Naramore Steib, Craig Steib, LouAnn Naramore, Carol Arnold Martinson, David Henry Martinson, and Julie Faust Martinson.

Id.

         The state appellate court, which affirmed the trial court, enunciated the Louisiana law of servitudes applicable to the case as follows:

Apparent servitudes may be acquired by title, destination of the owner, or acquisitive prescription. La. Civ. Code art. 740. Apparent servitudes are those perceivable by exterior signs, works, or constructions; such as a roadway, a window in a common wall, or an aqueduct. La. Civ. Code art. 707. Nonapparent servitudes are those with no exterior sign of their existence, such as the prohibition of building on an estate or of building above a particular height. Id. A servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. La. Civ. Code art. 705. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate. Id.
Article 741 defines “destination of the owner” to be “a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to different owners.” Article 741 further provides:
When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence of right and a nonapparent servitude comes into existence if the owner has previously filed for registry in the conveyance records of the parish in which the immovable is located a formal declaration establishing the destination. [Emphasis added.]
This article implicitly recognizes that when there is only one owner, there is no servitude, because no one can have a servitude on his own property. See Yiannopoulos and Scalise, 4 La. Civ. L. Treatise, Predial Servitudes § 6:38 (4th ed. September 2017 Update). But, when the single estate is divided, or two estates cease to belong to the same owner, an apparent servitude comes into existence of right unless the common owner disavows its existence. See Phipps v. Schupp, 09-2037 (La. 7/6/10), 45 So.3d 593, 601; Yiannopoulos and Scalise, at § 6:38.

Naramore, 252 So.3d at 940.

         Thereafter, the appellate court described the expert and fact witness testimony received by the trial court. Id. at 940-43. The fact witnesses testified that the roadway has been used by Sam and Vivian Arnold, their tenants, and decedents to access the property since at least the early 1960s. Id. at 941-42. Aikman, on the other hand, testified that his predecessor-in-interest, Jeffrey Arnold, told him that there was no servitude across the property, his act of sale does not mention a servitude, and he was told that his title was clear when he mortgaged the property. Id. at 942. According to Aikman, “for the first two years of his ownership, nobody used the road, which he claimed went no further than his driveway.” Id.

         The state appellate court held that the “record reasonably supports the trial court's conclusion the plaintiffs met” their burden of proving “that when Sam and Vivian Arnold owned all the property, a ‘relationship' existed between the parcels that would have been a predial servitude if the parcels belonged to different owners; and when Sam and Vivian conveyed the parcels, they did not expressly disavow the servitude.” Id. at 944 (citations omitted). The appellate court further explained:

It is undisputed Sam and Vivian Arnold previously owned all of the property presently owned by the Aikmans, Steibs, Martinsons, and Naramore. The record establishes a right of way was cleared and a road was constructed along the disputed strip in the late 1950s or early 1960s to provide access to the property. Since its construction, the road has been apparent and used on a regular basis by the Arnold family and their tenants for access. The construction and use of the road, which is perceivable by exterior signs, works, or constructions, created a relationship between the respective parcels now owned by the Martinsons, Steibs, Aikmans, and Naramore that allowed access to West Sam Arnold Loop. When Sam and Vivian conveyed a portion of the property in 1980 to the Martinsons, an apparent servitude of passage, extending along the visible right of way to West Sam Arnold Loop, was created in favor of the Martinson parcel. See La. Civ. Code arts. 707, 740-41; Huy Tuyet Tran v. Misuraca, 10-2183, 2011 WL 2617382, p.3 (La.App. 1 Cir. 5/6/11) (holding a servitude of passage was created by destination of the owner when property containing an apparent roadway was divided and sold). The subsequent conveyance of the Aikman parcel in 1982 likewise created a servitude along the same route in favor of the Naramore parcel.

Naramore, 252 So.3d at 943. The state appellate court further noted that the “creation of the servitude [by destination of the owner] was not dependent upon an express declaration in an act of sale, nor did it have to be identified in a survey recorded in the public records.” Id.

         After the state trial court denied the Aikmans' motion for leave to file a third-party demand against Commonwealth (but before the state appellate court rendered its decision), the Aikmans sued Commonwealth in a separate action in the 21st Judicial District Court, Parish of Tangipahoa, State of Louisiana (the “defense-and-indemnity suit”), seeking defense and indemnity for the servitude litigation pursuant to the terms of a title insurance policy, and alleging that Commonwealth was negligent in actions it took in connection with issuing the policy.[22] In the defense-and-indemnity suit, the Aikmans allege that, on January 5, 2005, in connection with a mortgage, Commonwealth issued a title insurance policy to them insuring their immovable property that was at issue in the servitude litigation.[23] The Aikman's allege that the Commonwealth policy provided coverage for the servitude litigation in which the state-court plaintiffs had, at that time, alleged (but not yet established) that they had a previously recorded servitude over the Aikmans' property.[24] In the defense-and-indemnity suit, the Aikmans further allege that Commonwealth breached the contract and was negligent by: failing to conduct a proper title search ...


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