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.
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. O' Brien Rachel
Cox Baton Rouge, LA Counsel for Defendant/Appellee, 2590
Associates, LLC and Intervenor/Appellee, Glasgow Partners,
BEFORE: WHIPPLE, C.J., McCLENDON, and HIGGINBOTHAM, JJ.
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.
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.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 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
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. 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
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.
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.
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
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.
(2) The trial court erred in not awarding sufficient damages
to the plaintiffs.
2590 Associates and Glasgow filed an answer to appeal,
(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.
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 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
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).
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 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 court's order
on remand, as it included an additional 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. See Peters v.
Livingston Wood Products, 486 So.2d 813, 814-815
(La.App. 1st Cir.1986), and MTU of North
America, Inc. v. Raven Marine, Ince., 499 So.2d 289, 291
(La.App. 1st Cir. 1986), writs denied,
501 So.2d 773, 776 (La. 1987); also see generally In 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, 958.
Accordingly, because the September 20, 2018 judgment did not
address the two perceived deficiencies that were to be
addressed pursuant to the remand order and, further, because
the judgment rendered a substantive award that was beyond the
scope of the remand order, this court will set aside the
September 11, 2018 amended judgment.
upon further review of the September 28, 2017 judgment, we
find that the judgment was sufficiently definite in that it
does specify the parties that the judgment was rendered in
favor of or against. From reading the judgment as a whole, we
can discern the parties against whom the ruling is ordered as
the judgment lists the counsel of record who were present and
their respective clients at the beginning of the judgment.
See Conleuy v. Plantation Management Co., L.L.C,
2012-1510 (La.App. 1st Cir. 5/6/13), 117 So.3d 542, 547,
writ denied, 2013-1300 (La. 9/20/13), 123 So.3d 178.
Additionally, because the record contains a copy of the
sketch of the proposed servitude, we amend the judgment to
attach the sketch of the proposed access servitude, dated
June 15, 2017, and drafted by SJB Group. See LSA-C.C.P. art.
1919; George M. Murrell Planting & Manufacturing
Company v. Dennis, 2006-1341 (La.App. 1st Cir. 9/21/07),
970 So.2d 1075, 1088.
foregoing reasons, we set aside the September 11, 2018
amended judgment, amend the September 28, 2017 judgment to
specifically attach the sketch of the proposed access
servitude, dated June 15, 2017, and drafted by SJB Group,
which we attach hereto as Appendix A and make a part hereof.
Thus, we will maintain the appeal and address the merits.
OF THE MERITS
of a Servitude
ease of discussion, we first address 2590 Associates and
Glasgow Partners' third and fourth arguments as raised in
the answer to appeal. They contend that the trial court erred
in ordering the creation of a servitude and awarding damages
when the servitude was not recorded in the public records and
a notice of lis pendens was not filed.
undisputed herein that plaintiffs acquired their interest in
the servitude pursuant to a judgment of possession rendered
in the Succession of Mary Lillian Bordelon Ford. The judgment
of possession grants plaintiff Bob D. Welch ownership of
3.714 acres, known as Tract A in East Baton Rouge, and a
one-half ownership interest in adjoining property identified
as Tract C. Likewise, the judgment of possession grants
plaintiff Daniel T. Hoover ownership of .7065 acres, known as
Tract B, and a one-half ownership interest in the property
identified as Tract C. The judgment of possession further