Rehearing Denied July 11, 2019
[Copyrighted Material Omitted]
Appealed from the Nineteenth Judicial District Court, In and
for the Parish of East Baton Rouge, State of Louisiana,
Docket Number C608569, Honorable Janice Clark, Judge
A. St. Amant, II, Sacha S. Tessier, Baton Rouge, LA, Counsel
for Plaintiffs/Appellants, Bob Welch and Daniel Hoover
Cynthia C. Bohrer, Baton Rouge, LA, Counsel for
Defendant/Appellee, City of Baton Rouge & Parish of East
L. McCullough, Baton Rouge, LA, Justin M. OBrien, Rachel
Cox, Baton Rouge, LA, Counsel for Defendant/Appellee, 2590
Associates, LLC and Intervenor/Appellee, Glasgow Partners,
WHIPPLE, C.J., McCLENDON, and HIGGINBOTHAM, JJ.
La.App. 1 Cir. 2] This matter, arising from the development
of the Rouzan Traditional Neighborhood Development ("the
Rouzan TND") in Baton Rouge, has come before this court
on numerous prior occasions. The current appeal challenges
the trial courts judgment rendered after this court remanded
the matter to the trial court in the matters of Welch v.
Planning and Zoning Commission of East Baton Rouge
Parish, 2016-0253 (La.App. 1st Cir. 4/26/17), 220 So.3d
60 ("Welch I ") and Welch v. Planning
and Zoning Commission of East Baton Rouge Parish,
2016-0751 (La.App. 1st Cir. 4/26/17), 220 So.3d 74
("Welch III "). For the following reasons,
we vacate the September 11, 2018 amended judgment, amend the
September 28, 2017 judgment, and render.
FACTUAL PROCEDURAL BACKGROUND
matters referred to as Welch I and Welch
III , this court reversed the portions of the
trial courts judgments that dismissed plaintiffs Bob Welch
and Daniel Hoovers possessory action against defendant, 2590
Associates, LLC, and granted declaratory relief to
intervenor, Glasgow Partners, LLC, as to the relocation of
plaintiffs private servitude of passage. This court found
that the actions of 2590 Associates and Glasgow Partners
while developing the Rouzan TND had diminished the servitude
in violation of LSA-C.C. art. 748. Accordingly, this court
rendered judgment in favor of plaintiffs, granting their
requests for injunctive relief and damages. Specifically,
this court issued a mandatory injunction ordering 2590
Associates or its successor(s) in interest to [2018-0197
La.App. 1 Cir. 3] restore plaintiffs rights to the servitude
running from their property to Glasgow Avenue to the same
extent and mode as specified in the title establishing the
servitude, and remanded the matter to the trial court with
instructions to expeditiously determine and fix the specific
amount of damages due to plaintiffs. Welch, 220
So.3d at 69; Welch, 220 So.3d at 78-79.
Associates and Glasgow Partners did not seek review of this
courts rulings in Welch I and Welch III,
However, the City of Baton Rouge/Parish of East Baton Rouge
("the City/Parish") sought review of this courts
ruling in the matter referred to as Welch II
. wherein this court reversed a separate judgment of
the trial court that dismissed plaintiffs claims against the
Welch v. Planning and Zoning Commission of East Baton
Rouge Parish. 2016-0735 (La.App. 1st Cir. 4/26/17), 220
So.3d 70, writ denied. 2017-0885 (La. 9/29/17), 227
So.3d 288 ("Welch II ").
this courts decisions in Welch I, Welch II
, and Welch III, the trial court stayed all
proceedings because of the pending writ application filed by
the City/Parish with the Louisiana Supreme Court seeking
review of this courts decision in Welch II .
However, plaintiffs filed an application for supervisory
writs of review with this court, challenging the trial
courts purportedly improper stay of the claims involving
2590 Associates and Glasgow Partners. This court granted
plaintiffs writ application and ordered that, pursuant to
Welch I and Welch III, the trial court was
to determine and fix the amount of damages due to plaintiffs
on or before September 21, 2017, and was likewise to
determine, on or before September 21, 2017, the expeditious
time period within which plaintiffs possession and rights to
a thirty-foot conventional servitude of passage were to be
La.App. 1 Cir. 4] Thereafter, the trial court set a trial
date of September 20, 2017. Prior to the scheduled trial
date, 2590 Associates filed motions in limine, seeking to
exclude testimony regarding any alleged damages to
plaintiffs utilities and to exclude testimony regarding the
alleged liability of the City/Parish. The trial court granted
the motion in limine to exclude evidence regarding utilities
and deferred the motion in limine to exclude evidence
regarding the liability of the City/Parish to the trial on
to this courts remand orders in Welch I and
Welch III , and following a bench trial on
September 20 and 21, 2017, the trial court signed a judgment
on September 28, 2017, addressing the claims of the parties,
which judgment provides as follows:
When after hearing the testimony of the witnesses, the
exhibits admitted into evidence, the stipulation of counsel,
the proposed findings of fact and conclusions of law,
together with the argument of counsel, the Court being firmly
of the opinion that the law and evidence preponderate in
favor of the plaintiffs in the following particulars:
Diminution of the value of the 30 foot servitude.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that there be
judgment herein in favor of the plaintiffs and against the
defendants in the full and true sum of $ 96,000.[00.]
IT IS FURTHER, ORDERED, ADJUDGED AND DECREED that there be
judgment in favor of defendants and against plaintiffs
restoring a 30 foot servitude of passage in accordance with
proposed accessed [sic] servitude Exhibit D-24, sketch dated
June 15, 2017 drafted by SJB Group, LLC.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said
restoration shall be accomplished by and restored to
plaintiffs on or before January 21, 2018 all at defendants
Plaintiffs then filed the instant appeal from the September
28, 2017 judgment, raising the following as assignments of
(1) The trial court failed to restore the plaintiffs rights
and possession to the servitude of passage in violation of
this courts previous rulings.
[2018-0197 La.App. 1 Cir. 5] (2) The trial court erred in
not awarding sufficient damages to the plaintiffs.
Associates and Glasgow filed an answer to appeal, contending:
(1) The trial court erred in awarding damages against 2590
Associates, LLC because 2590 Associates, LLC did not cause
any of the plaintiffs damages.
(2) The trial court erred in awarding damages against 2590
Associates and Glasgow Partners, LLC because plaintiffs
claims amounted to no more than, by their testimony,
inconvenience caused by construction in the neighborhood.
(3) The trial court erred in ordering the creation of a
servitude, when plaintiffs witness testified that it was not
Mrs. Fords intent to create a servitude in her will and no
servitude was created; and the evidence shows that the
purported servitude was not, and still is not, recorded in
the public records so as to impact third parties such as 2590
Associates, Glasgow Partners, or any third party purchaser.
Further, no notice of lis pendens was ever filed.
(4) The trial court erred in awarding damages, when, as a
matter of law, the servitude did not exist on the face of the
public records as to 2590 Associates, LLC, Glasgow Partners,
LLC or any subsequent purchaser.
RULE TO SHOW CAUSE
preliminary matter, we must first address whether this court
has jurisdiction over the instant appeal. On February 16,
2018, this court issued a rule to show cause ordering the
parties to show cause whether or not the trial courts
September 28, 2017 judgment was a final judgment subject to
appeal. This court also remanded the appeal for the limited
purpose of inviting the trial court to advise this court in
writing why the September 28, 2017 judgment did not require a
[2018-0197 La.App. 1 Cir. 6] LSA-C.C.P. art. 1915(B)
designation or to sign a judgment with a LSA-C.C.P. art.
1915(B) designation and provide reasons for such designation.
This court received a response from plaintiffs only regarding
the show cause order.
upon further review of this record in these proceedings, it
is evident that the judgment addresses all disputed aspects
of the plaintiffs claims against 2590 Associates and the
intervention of Glasgow Partners, and therefore, a LSA-C.C.P.
art. 1915(B) designation ultimately is not necessary.
See LSA-C.C.P. art. 1915(A)(1).
courts rule-to-show-cause order also noted that the judgment
may not constitute a final appealable judgment because (1) it
appeared to lack specificity regarding the particular parties
against whom and in favor of whom the ruling was rendered,
and (2) the judgment referred to extrinsic documents, namely,
the proposed access servitude on the sketch dated June 15,
2017 by SJB Group, LLC. Accordingly, on
September 7, 2018, this court issued an interim order,
remanding the matter for the limited purpose of having the
trial court sign an amended judgment addressing these two
perceived defects in the judgment and ordering the trial
court to supplement the record with an amended judgment by
September 17, 2018.
record was supplemented on September 20, 2018, with an
amended judgment signed by the trial court on September 11,
2018. However, the amended judgment does not address the
potential defects in the judgment that were noted by this
court in the interim order. Specifically, the amended
judgment again refers to the proposed access servitude on the
sketch dated June 15, 2017 by SJB Group, LLC, but the
judgment does not attach the sketch. Moreover, the amended
judgment made substantive changes to the September 28, 2017
judgment that went beyond the scope of this courts order on
remand, as it included an additional [2018-0197 La.App. 1
Cir. 7] provision that "each party shall bear their own
costs." To the extent that the court granted relief
beyond the scope of the order of remand, the court erred.
SeePeters v. Livingston Wood Products, 486
So.2d 813, 814-815 (La.App. 1st Cir. 1986), and MTU of
North America, Inc. v. Raven Marine, Inc., 499 So.2d
289, 291 (La.App. 1st Cir. 1986), writs denied, 501
So.2d 773, 776 (La. 1987); alsoseegenerallyIn re Belle Co., LLC, 2006-1077
(La.App. 1st Cir. 12/28/07), 978 So.2d 977, 985-986,
writs denied, 2008-0220, 2008-0229 (La. 3/24/08),
977 So.2d 957, 977 So.2d 958. Accordingly, because the