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Welch v. Planning and Zoning Commission of East Baton Rouge Parish and 2590 Associates, LLC

Court of Appeals of Louisiana, First Circuit

May 9, 2019

Bob WELCH and Daniel Hoover
v.
PLANNING AND ZONING COMMISSION OF EAST BATON ROUGE PARISH AND 2590 ASSOCIATES, LLC

          Rehearing Denied July 11, 2019

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[Copyrighted Material Omitted]

Page 206

          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 Presiding

         Alexis 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 Baton Rouge

         Brian L. McCullough, Baton Rouge, LA, Justin M. O’Brien, Rachel Cox, Baton Rouge, LA, Counsel for Defendant/Appellee, 2590 Associates, LLC and Intervenor/Appellee, Glasgow Partners, LLC

         BEFORE: WHIPPLE, C.J., McCLENDON, and HIGGINBOTHAM, JJ.

         OPINION

         WHIPPLE, C.J.

Page 207

         [2018-0197 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 court’s 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

         In the matters referred to as Welch I and Welch III , this court reversed the portions of the trial court’s judgments that dismissed plaintiffs Bob Welch and Daniel Hoover’s 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.[1] 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.

         2590 Associates and Glasgow Partners did not seek review of this court’s 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 court’s 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 City/Parish.

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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 ").[2]

         Following this court’s 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 court’s decision in Welch II . However, plaintiffs filed an application for supervisory writs of review with this court, challenging the trial court’s 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 restored.

         [2018-0197 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 the merits.

         Pursuant to this court’s 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’ expense.

          Plaintiffs then filed the instant appeal from the September 28, 2017 judgment, raising the following as assignments of error:

(1) The trial court failed to restore the plaintiffs’ rights and possession to the servitude of passage in violation of this court’s previous rulings.

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[2018-0197 La.App. 1 Cir. 5] (2) The trial court erred in not awarding sufficient damages to the plaintiffs.

         2590 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. Ford’s 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.[3]

          RULE TO SHOW CAUSE

          As a 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 court’s 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.

         Nevertheless, 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).

          This court’s 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

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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.

         The 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 court’s 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 ...


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