Opinion
2018 CA 0661
02-06-2019
WILLIAM CARMENA AND BRANDI CARMENA v. MICHAEL O'CONNELL
Cheyenne Moeller Meek Scotty E. Chabert, Jr. Henri M. Saunders Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee Michael O'Connell Robert H. Harrison, Jr. Watson, Louisiana Attorney for Defendants/Appellants William Carmena and Brandi Carmena
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twentieth Judicial District Court In and for the Parish of East Feliciana State of Louisiana
No. 44548, Div. B The Honorable William G. Carmichael, Judge Presiding Cheyenne Moeller Meek
Scotty E. Chabert, Jr.
Henri M. Saunders
Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee
Michael O'Connell Robert H. Harrison, Jr.
Watson, Louisiana Attorney for Defendants/Appellants
William Carmena and Brandi
Carmena BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
Plaintiffs, William Carmena and Brandi Carmena, appeal a judgment rendered in favor of defendant, Michael O'Connell, dismissing their claim for damages and injunctive relief and permanently enjoining them from interfering with Mr. O'Connell's use and enjoyment of a 50-foot private servitude of access located on their property. We maintain the appeal, amend the judgment, and issue this memorandum opinion in accordance with Uniform Rules—Courts of Appeal, Rule 2-16.1B.
BACKGROUND
On May 29, 2017, the Carmenas filed this possessory action against Mr. O'Connell, an adjacent property owner. The Carmenas are the owners of Lots 5-A and 5-B in Twin Oaks Subdivision located in Clinton, Louisiana, which contain 5.7 acres of land. Mr. O'Connell owns Lots 5-C, 5-D, 5-E and B-1, located directly behind the Carmenas' property, which contain nearly 27 acres of land. The Carmenas acknowledged in their petition, and the parties' acts of sale and a map depicting the subdivision of Lots 5-A through 5-E demonstrate, that the Carmenas' property is burdened by a 50-foot private servitude of passage to provide access to Mr. O'Connell's property. The Carmenas alleged that throughout the period of their "common ownership" of the property burdened by the servitude, Mr. O'Connell disturbed their peaceful possession of the property, denied them full use and enjoyment of the property, and trespassed on the property. Alleging that they had possession of the subject property, the Carmenas asked for a judgment recognizing their right to the possession of the immovable property and an award of damages for Mr. O'Connell's alleged trespass and disturbance of their possession of the property. Additionally, the Carmenas invoked La. C.C.P. art. 3663, seeking injunctive relief to restore or protect their possession of the property. Specifically, they sought preliminary and permanent injunctions enjoining and restraining Mr. O'Connell from trespassing on the property, denying or attempting to deny their use of the property, and engaging in any act designed to harass or intimidate the Carmenas, their family, guests, or invitees.
Mr. O'Connell answered the petition and filed a reconventional demand against the Carmenas. Mr. O'Connell alleged that since he purchased his property, he has experienced consistent harassment and acts interfering with his peaceable possession of his property by the Carmenas. Specifically, he charged, among other things, that the Carmenas blocked his access to the servitude with an abandoned vehicle, dumped nails and other objects on the servitude, and were using the servitude, rather than their own driveway, to access their property. Mr. O'Connell asked for a judgment recognizing his right to peaceable possession of his property and reasonable use of the 50-foot servitude to access his property. He also sought an award of damages due to the Carmenas' alleged disturbance of his peaceable possession and enjoyment of his property, and sought injunctive relief pursuant to La. C.C.P. art. 3663. Mr. O'Connell also asked the court for preliminary and permanent injunctions enjoining and restraining the Carmenas from denying or attempting to deny him the use of his property, or any acts designed to harass or intimidate himself, his guests, or his invitees.
The trial court issued an interim judgment on June 9, 2017, issuing mutual and reciprocal preliminary injunctions enjoining the parties from, among other things, trespassing on the other's property, denying or attempting to deny each other the use of the property, and denying or attempting to deny Mr. O'Connell the use of the servitude of access. --------
A bench trial was held, during which the Carmenas' case-in-chief consisted of their testimony and the testimony of Mr. O'Connell. In addition to his testimony, Mr. O'Connell also offered the testimony of David Schexnayder, the original owner of the property; Joseph Gauthreux, a contractor who attempted to perform improvements to the servitude and was confronted by Mr. Carmena; Lyman Fleniken, Jr., a neighbor whose son was attempting to dig a ditch along the servitude when confronted by Mrs. Carmena; and two neighboring landowners, Earnest Carl Rogers and John O'Neal. The parties introduced the map of the subdivision and their respective acts of sale as joint exhibits, and both sides introduced various photographs of the area in question. Following the conclusion of the bench trial, on February 9, 2018, the trial court signed a judgment in favor of Mr. O'Connell and against the Carmenas. In the judgment, the trial court made the following specific rulings:
The Main Demand of William and Brandi Carmena is hereby dismissed, with prejudice, at plaintiffs cost;
Michael O'Connell's possession of the 50-foot servitude in question is hereby recognized.
William and Brandi Carmena, and all persons acting on their behalf, are hereby permanently enjoined from harassing and intimidating O'Connell in any way, or otherwise interfering with his use and enjoyment of the servitude.
The Carmena's are prohibited from blocking or damaging the servitude in any way, and they are hereby ordered to remove any object they have placed within the 50-foot servitude.
The Carmenas appealed, asserting that the trial court erred in dismissing their claims for damages and injunctive relief and in enjoining them from the reasonable and legal use of their own property.
RULE TO SHOW CAUSE
On May 17, 2018, this court issued a rule to show cause, alerting the parties that this court, ex proprio motu, found the following apparent defect in the appeal taken:
It appears that the February 9, 2018 "Judgment" at issue lacks adequate specificity to be a final, appealable judgment because it does not describe the immovable property/servitude in question with sufficient particularity....Citing La. C.C.P. art. 1919, this court ordered the parties to show cause by briefs whether the appeal should or should not be dismissed.
Louisiana Code of Civil Procedure article 1919 provides that "[a]ll final judgments which affect title to immovable property shall describe the immovable property affected with particularity." Likewise, La. C.C.P. art. 2089 provides that "[a]ll judgments and decrees which affect title to immovable property shall describe with particularity the immovable affected."
In response to the rule, the Carmenas assert that a specific property description is unnecessary and La. C.C.P. art. 1919 does not apply in this case because the judgment does not affect title to immovable property. Alternatively, the Carmenas request that we amend the judgment to comply with La. C.C.P. art. 1919.
The rule to show cause was referred to this panel. Carmena v. O'Connell, 2018 CA 0661 (La. App. 1 Cir. 8/20/18). There is no indication the parties requested the trial court to amend the judgment, and the record has not been supplemented to include a judgment specifically describing the servitude. Because a predial servitude is an incorporeal immovable, the specificity requirements of La. C.C.P. arts. 1919 and 2089 apply to the February 9, 2018 judgment's description of Mr. O'Connell's servitude of passage. See La. C.C. art. 649. However, the failure of the judgment to specifically describe the servitude does not nullify or affect the judgment rendered. Goal Properties, Inc. v. Prestridge, 14-422 (La. App. 3 Cir. 11/5/14), 150 So.3d 610, 613. Where the record contains an accurate description of the subject property, courts have addressed the merits of the case and amended the judgment to include the property description. See George M. Murrell Planting & Manufacturing Company v. Dennis, 2006-1341 (La. App. 1 Cir. 9/21/07), 970 So.2d 1075, 1088; Fields v. Etheridge, 487 So.2d 551, 552 (La. App. 4 Cir. 1986). In other cases, appellate courts have determined the merits of the appeal and remanded to the trial courts for reformation of the judgment to comply with La. C.C.P. art. 1919. See Williams v. Adams, 2010-0477 (La. App. 1 Cir. 11/1/10), 2010 WL 4278275 *5 (unpublished); Hooper v. Hero Lands Company, 2015-0929 (La. App. 4 Cir. 3/30/16), 216 So.3d 965, 980-81, writ denied, 2016-0971 (La. 9/16/16), 206 So.3d 205.
In this case, the act of sale by which Mr. O'Connell acquired the servitude of passage contains an accurate description of the servitude in question. Accordingly, we maintain the appeal and will amend the judgment to comply with La. C.C.P. art. 1919.
MERITS OF THE APPEAL
The Carmenas contend that the trial court failed to consider the lawful and permitted use of their property, which they claim did not interfere with the exercise of the predial servitude. They insist that there was no evidence that their actions in any way interfered with the passage of vehicles or persons through the servitude. The Carmenas point out that while the trial court may have had the authority to enjoin them from taking actions to intimidate or harass Mr. O'Connell, the trial court erred by going further and enjoining them from taking actions which did not interfere with the exercise of the servitude, but which did in fact restrict them from otherwise using and enjoying their property, consistent with the servitude. The Carmenas acknowledge that Mr. O'Connell has a valid and enforceable predial servitude across their property, but insist that they are the owners of that property and can use and enjoy it in any manner they wish, provided they do not interfere with the right of ingress or egress granted by the predial servitude. The Carmenas contend that the evidence is clear that Mr. O'Connell has carried out a campaign of harassment and un-neighborly conduct toward them, apparently due to his misunderstanding of the rights and obligations incumbent on the parties in this matter.
Mr. O'Connell submits that the trial court simply made a credibility determination in light of the reciprocal accusations being made by the parties. He maintains that the trial court obviously found that he, and his supporting witnesses, were credible. Mr. O'Connell contends that the trial court's findings giving rise to its injunction order are fully supported by the record.
We agree. The trial court issued lengthy reasons for judgment in which it thoroughly summarized the testimony, the allegations the parties levied at each other, and the fact that the Carmenas flatly denied Mr. O'Connell's claims relative to their attempts to intimidate him. The court stressed that the Carmenas' demeanor, as described by the witnesses, was confrontational and contentious, as was their testimony. The trial court further found the Carmenas' testimony attempting to explain away their confrontational behavior was unreasonable and "unusual."
The trial court's findings of fact may not be reversed unless they are manifestly erroneous or clearly wrong. Stobart v. State of Louisiana, Department of Transportation & Development, 617 So.2d 880, 882 (La. 1993). The issue to be resolved by this court is not whether the trial court was right or wrong, but whether the conclusions it reached are reasonable. Id. When there is conflict in the testimony, a factfinder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Id. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Robinson v. Board of Supervisors for University of Louisiana System, 2016-2145 (La. 6/29/17), 225 So.3d 424, 430.
Moreover, where findings are based on determinations regarding the credibility of witnesses, the manifest-error clearly wrong standard demands great deference to the trier of fact's finding, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief of what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where a reasonable factfinder would not credit a witnesses' story because it is contradicted by documents or objective evidence, or it is so internally inconsistent or implausible on its face, an appellate court may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. However, where such factors are not present, and a factual finding is based on the trial court's decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. at 844-45.
After a thorough review of the record, and giving the trial court's ruling the due deference that we must, we find no error in the trial court's dismissal of the Carmenas' claims for damages and injunctive relief against Mr. O'Connell. Further, we find no error in the trial court's judgment enjoining the Carmenas from interfering with Mr. O'Connell's use of the servitude and prohibiting them from blocking or damaging the servitude in any way. After considering the demeanor and credibility of the witnesses, the trial court obviously chose to accept the testimony of Mr. O'Connell, and Mr. O'Connell's witnesses, over that of the Carmenas, in ultimately concluding that it was the Carmenas who interfered with Mr. O'Connell's use of the servitude. The trial court's factual determinations and its rulings are entirely reasonable, and we may not disturb those rulings.
CONCLUSION
For the foregoing reasons, Paragraph 2 of the February 9, 2018 judgment is amended as follows:
Michael O'Connell's possession of and right to use the 50' private servitude of access of the land as set forth on the map entitled "MAP SHOWING THE SURVEY OF EXISTING TRACT B-1 AND SUBDIVISION OF LOT 5 INTO LOTS 5-A THRU 5-E (TWIN OAKS SUBDIVISION) FOR DAVID SCHEXNAYDER SECTIONS 1 & 57, T4S, R3E, G.L.D., EAST FELICIANA PARISH, LOUISIANA," prepared by Charles R. St. Romain, Professional Land Surveyor, dated February 14, 2008, a copy of which map is recorded as Instrument Number 196591, in the official records of the Clerk and Recorder for East Feliciana Parish, Louisiana, is hereby recognized.
As amended, the February 9, 2018 is affirmed. All costs of this appeal are assessed to appellants, William Carmena and Brandi Carmena.
APPEAL MAINTAINED; AMENDED AND AFFIRMED AS AMENDED. McDONALD, J., concurring.
I agree with the majority's affirmance of the trial court's judgment but disagree that the affirmance hinges on the credibility of the respective landowners. Rather, I think the express law applicable to this dispute plainly warrants the affirmance.
As pointed out by the trial court in its reasons for judgment, the Carmenas apparently misunderstand their rights and obligations as the owners of the servient estate, which is indisputably subject to a clearly delineated 50-foot wide predial servitude of passage for the benefit of Mr. O'Connell's property, the dominant estate. LSA-C.C. art. 646.
A servitude of passage is a right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. LSA-C.C. art. 705. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate. Id. The owner of the dominant estate has the right to make, at his expense, all the works that are necessary for the use and preservation of the servitude. LSA-C.C. art. 744. The owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude. LSA-C.C. art. 745. He may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible. Id.
Doubt as to the extent or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. LSA-C.C. art. 730. However, the owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude. LSA-C.C. art. 748. If the original location of the servitude has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude, which the owner of the dominant estate is bound to accept. Id. All expenses of relocation are borne by the owner of the servient estate. Id.
The record shows that Mr. O'Connell has properly and reasonably exercised his rights as the owner of the dominant estate. As noted by the trial court, Mr. O'Connell's use of the servitude does not depend on the Carmenas' consent, and they may not control how the servitude is used and improved. In fact, as also noted by the trial court, most of Mr. O'Connell's actions have improved the servitude and have not inconvenienced the Carmenas in any way. As owners of the servient estate, it is they who are required to abstain from doing anything that interferes with the use of the servitude or that makes its use inconvenient.
If the Carmenas are dissatisfied as owners of the servient estate, they have the option of paying all expenses to relocate the servitude of passage, but this option is only available if they prove that the servitude has become more burdensome, or prevents them from making useful improvements to their land, and only if the new location provided is as equally convenient for the exercise of the servitude as was the original location.