WARD'S CREEK INVESTORS, LL.C.
L & C BATON ROUGE, L.L.C.
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
D. Fazio Baton Rouge, Louisiana Counsel for
Plaintiff/Appellant Ward's Creek Investors, L. L. C.
Silverstein David A. Silverstein Gretna, Louisiana Counsel
for Defendant/ Appellee L & C Baton Rouge, L. L.C.
BEFORE: WHIPPLE, CJ., McCLENDON, AND HIGGINBOTHAM, JJ.
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
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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