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LL.C. v. L & C Baton Rouge, L.L.C.

Court of Appeals of Louisiana, First Circuit

May 24, 2019

WARD'S CREEK INVESTORS, LL.C.
v.
L & C BATON ROUGE, L.L.C.

          On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 642338 Honorable Richard "Chip" Moore, III, Judge Presiding

          Thomas D. Fazio Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Ward's Creek Investors, L. L. C.

          Irl R. Silverstein David A. Silverstein Gretna, Louisiana Counsel for Defendant/ Appellee L & C Baton Rouge, L. L.C.

          BEFORE: WHIPPLE, CJ., McCLENDON, AND HIGGINBOTHAM, JJ.

          McCLENDON, J.

         This appeal arises from an action for declaratory judgment and reformation of an instrument that was dismissed upon the trial court's determination that the action had prescribed at the time it was filed, and a trial court judgment denying plaintiff's motion for new trial on the issue of prescription. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff, Ward's Creek Investors, L.L.C. ("Ward's Creek"), and defendant, L & C Baton Rouge, L.L.C. ("L&C"), are landowners of two adjacent and contiguous properties. R. 3-4. The properties were encumbered by an Act of Restrictive Covenants and Servitude Agreement ("Restrictions") dated September 24, 1997, between Essen Park, L.L.C, predecessor in title to Ward's Creek of the "Essen Parcel," and Sears, Roebuck & Co., predecessor in title to L&C of the "Sears Parcel." Exhibit J-1. The Restrictions were recorded as Original 108, Bundle 10827 of the official records of East Baton Rouge Parish, Louisiana. Exhibit J-1. Pertinent to this appeal, the Restrictions limit the aggregate floor area of any building constructed on the Essen Parcel to 2, 500 square feet, and require that fifteen parking spaces be available at all times. With respect to floor area used for a restaurant, the Restrictions require fifteen parking spaces per 200 square feet Exhibit J-1.

         Ward's Creek was formed in 1999 by Kenneth Johnson, William Ball and Dr. Charles Mitchell for the purpose of acquiring land to market and develop. R. 63-67, 79. With this intent, Ward's Creek acquired the Essen Parcel and several other pieces of property in a cash sale executed on February 14, 2001. Exhibit J-3. Ward's Creek considered numerous possibilities for the development of the Essen Parcel during the next twelve years, though none came to fruition.

         In July of 2013, Mr. Johnson on behalf of Ward's Creek sent a letter to Mr. Robert Caplan, the principal of L&C, regarding possibilities for the development of the Essen Parcel. The letter also detailed Mr. Johnson's concern that the parking requirements contained in the Restrictions would pose significant difficulties in developing the property, particularly if the property was developed for restaurant use. R. 74. Exhibit P-4. Specifically, the problem Mr. Johnson had identified was that the

          Restrictions as written would require 187 parking spaces for a restaurant building measuring 2, 500 square feet R. 3-7. The Essen Parcel is 0.373 acres, or 16, 248 square feet, and 188 parking spaces would cover 30, 456 square feet. R. 6, 71. Thus, Mr. Johnson reasoned that the Restrictions must have been intended to provide for fifteen parking spaces per 2, 000 square feet of restaurant space, instead of fifteen parking spaces per 200 square feet; otherwise, the Restrictions would technically allow restaurant use of the Essen Parcel, but prohibit restaurant use as a practical matter due to the parking space requirements. R. 6, 71-73. Mr. Johnson therefore sought an agreement from Mr. Caplan to amend the Restrictions to provide for fifteen parking spaces per 2, 000 square feet for restaurant buildings, rather than fifteen parking spaces per 200 square feet of restaurant buildings. R. 6. Exhibit P-4.

         L&C refused to execute the Act of Correction, contending that there was no typographical error or mistake in the Restrictions as written because restaurant use on the Essen Parcel was never envisioned. R. 6.

         Ward's Creek filed a Petition for Declaratory Judgment and Reformation of Instrument on September 16, 2015, seeking judgment declaring that a mutual mistake and error was made by the parties at the time the Restrictions were recorded, and seeking reformation of the Restrictions to provide for fifteen parking spaces per 2, 000 square feet of restaurant space. R. 3-7. Ward's Creek argued that the Restrictions could not have been intended to explicitly permit restaurant use and simultaneously preclude restaurant use by means of the parking restrictions, and therefore the Restrictions as written clearly contained a typographical error or mistake.

         L&C filed an Exception of Prescription on November 5, 2015. R. 21. L&C argued that the presence of the Restrictions in the public record charged Ward's Creek with knowledge of the Restrictions and their contents from the date it acquired the Essen Parcel on February 14, 2001. L&C concluded that any action for reformation of the Restrictions would have been a personal action subject to liberative prescription of ten years, and would have ...


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