Opinion
NUMBER 2012 CA 1654
08-12-2013
ROY THEODORE RITTER, III AND JANICE MCPHERSON RITTER v. COMMONWEALTH LAND TITLE INSURANCE COMPANY, LEON LOWE AND SONS, INC, AND MICHELLE BARROIS STEPHENS, HICKORY OAKS, LLC
William M. Magee Rhea P. Loney Covington, LA Counsel for Plaintiffs/Appellants Roy Theodore Ritter, III and Janice McPherson Ritter William H. Burris Franklinton, LA Counsel for 3d-party Defendant/ Appellee Angie Lumber Company, Inc. Tom W. Thornhill Mitchell A. Palmer Slidell, LA Counsel for Defendants/Appellees Leon Lowe and Sons, Inc. and Hickory Oaks, LLC Fred Sherman Boughton, Jr. New Orleans, LA Counsel for Defendant Commonwealth Land Title Insurance Company Michelle Barrios Stephens Lacombe, LA Pro Se Defendant
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
Twenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket No. 2010-14555
Honorable Peter J. Garcia, Judge
William M. Magee
Rhea P. Loney
Covington, LA
Counsel for
Plaintiffs/Appellants
Roy Theodore Ritter, III
and Janice McPherson
Ritter
William H. Burris
Franklinton, LA
Counsel for
3d-party Defendant/
Appellee
Angie Lumber Company,
Inc.
Tom W. Thornhill
Mitchell A. Palmer
Slidell, LA
Counsel for
Defendants/Appellees
Leon Lowe and Sons,
Inc. and Hickory Oaks,
LLC
Fred Sherman Boughton, Jr.
New Orleans, LA
Counsel for
Defendant
Commonwealth Land
Title Insurance Company
Michelle Barrios Stephens
Lacombe, LA
Pro Se
Defendant
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
GUIDRY , J.
Plaintiffs appeal a summary judgment declaring the continuing existence of a 50-foot servitude burdening their land. For the reasons that follow, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
On January 26, 1998, Angie Lumber Company, Inc. sold over 90 acres of land in St. Tammany Parish to Lock No. 1 Campground, Inc. The act of cash sale by which the property was conveyed to Lock No. 1 contained the following provision to which the sale was subject:
THIS ACT IS MADE AND ACCEPTED SUBJECT TO THE FOLLOWING:The actual acreage conveyed in the 1998 act of sale was 90.94 acres, because Angie Lumber reserved .23 acres around a hunting camp located on the property sold. Subsequently, however, on April 4, 2001, Angie Lumber sold the remaining .23 acres to Lock No. 1, thereby establishing a total acreage 91.17 acres conveyed to Lock No. 1 from Angie Lumber.
1. Timber deed dated June 3, 1993, COB 1554, folio 830.
2. Seller to reserve fifty foot right of egress and ingress on east property line.
3. Seller to have one (1) year to remove timber (select cut).
4. Timber to be cut same as balance of tract.
5. Seller agrees not to harvest timber in weather conditions that would cause excess damage to property. [Emphasis added]
Roughly eight years later, Angie Lumber sold to Hickory Oaks, LLC two parcels of land by an act of cash sale executed on December 15, 2005, one parcel of which was an 80-acre tract of land situated to the south of the 91-acre tract that Angie Lumber had previously sold to Lock No. 1. The 2005 act of sale described the property conveyed as containing a 50-foot wide ingress and egress servitude more fully described as:
From the section corner common to S9, 10, and 39, T7S, R14E go S00° 06'28"W 1104.31 feet to the 1/4 corner common to said S9 and 10; thence N89°14'53"E 2577.83 feet to the POINT OF BEGINNING.Hickory Oaks later sold the two parcels of land with accompanying servitude to Leon Lowe & Sons, Inc. on June 26, 2006.
Thence go N89° 14'53"E 62.37 feet to a point; thence go N37° 27'46"W 1565.27 feet to a point on the southerly edge of Lock No. 1 road; thence go N72° 09'43"W 87.83 feet along said southerly edge of Loc[sic] No. 1 Road to point of departure; thence S37° 27'46"E 1600.20 feet to the Point of Beginning. Containing 1.817 acres of land, more or less.
On May 28, 2009, Roy Theodore Ritter, III and Janice McPherson Ritter executed an act of cash sale wherein they purchased from Lock No. 1 approximately 18 acres of land. The 18-acre tract purchased by the Ritters was a portion of the approximately 91 acres that Lock No. 1 had purchased from Angie Lumber in 1998. The 2009 act of sale between Lock No. 1 and the Ritters contained no mention of the 50-foot servitude reserved by Angie Lumber in the 1998 act of sale.
On July 14, 2010, the Ritters filed a "Petition for Damages and Declaratory Judgment" alleging that on August 29, 2009, an employee of Leon Lowe and/or Hickory Oaks, "along with other individuals... entered the east area of the property plaintiffs believed they had purchased and began construction of road [sic] which included removal of trees from an area around 1,114 square feet by 24 square feet." The Ritters alleged that they thereafter learned that Leon Lowe and/or Hickory Oaks were claiming to own a 50-foot right-of-way across their property. As a result, the Ritters filed a claim with Commonwealth Land Title Insurance Company, the company from which they had obtained title insurance relative to the 2009 act of sale through their closing agent Michelle Barrios Stephens. The claim was denied. Thus, in their petition, the Ritters filed suit against Commonwealth, Ms. Stephens, Leon Lowe and Hickory Oaks as defendants and claimed damages for the value of the trees removed, for the elimination of use of the property as intended, and for the decrease in the value of the property. The Ritters further sought judgment declaring the servitude referred to in the 2005 act of sale between Angie Lumber and Hickory Oaks to be "no longer valid."
Commonwealth, Leon Lowe and Hickory Oaks answered the Ritters' petition to deny liability. Leon Lowe and Hickory Oaks additionally filed a third-party demand against Angie Lumber seeking indemnification for the claims asserted by the Ritters and against First American Title Insurance Company, as the company from which Hickory Oaks had obtained title insurance relative to the 2005 act of sale. The Ritters later filed a partial motion for summary judgment, seeking an immediate judgment declaring the servitude claimed by Leon Lowe and Hickory Oaks to be invalid. In turn, Leon Lowe, Hickory Oaks, and Angie Lumber (hereinafter, collectively referred to as "defendants") filed peremptory exceptions raising the objections of no right and no cause of action and also filed motions for summary judgment requesting that the trial court find the 50-foot servitude to still be in existence.
Following a hearing on the cross motions for summary judgments and the peremptory exceptions, the trial court rendered judgment denying the Ritters' partial motion for summary judgment and overruling the peremptory exceptions filed by the defendants; however, the trial court granted the motions for summary judgment filed by the defendants to find the 50-foot servitude to still be in existence and dismissed all claims pending against the defendants with prejudice.
DISCUSSION
In this appeal, the Ritters contend that the trial court erred in granting summary judgment to find the servitude granted in 1998 act of sale to be valid and still in existence. Instead, the Ritters argue that the servitude granted in the 1998 act of sale has expired by the terms of the 1998 act of sale or by the ten-year prescription of nonuse, and therefore, they also request review of the trial court's denial of their partial motion for summary judgment.
A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). On a motion for summary judgment, the burden of proof is on the mover. If the moving party will not bear the burden of proof at trial on the matter, that party's burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La. App. 1st Cir. 3/28/03), 844 So. 2d 339, 341. An appellate court's review of a summary judgment is de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. R.G. Claitor's Realty v. Rigell, 06-1629, p. 4 (La. App. 1st Cir. 5/4/07), 961 So. 2d 469, 471-72, writ denied, 07-1214 (La. 9/21/07), 964 So. 2d 340.
Moreover, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. And although the present appeal is restricted to the issue of whether the servitude in question is still valid, because the issues involved in granting summary judgment to the defendants are identical to those presented by the Ritters in their partial motion for summary judgment, it is clearly appropriate to review the interlocutory judgment denying their motion at this time. Thus, the Ritters may properly seek appellate review of that interlocutory judgment in this appeal. Dean v. Griffin Crane & Steel, Inc., 05-1226, p.4 n.3 (La. App. 1st Cir. 5/5/06), 935 So. 2d 186, 189 n.3, writ denied, 06-1334 (La. 9/22/06), 937 So. 2d 387.
The determination of whether a contract is clear or ambiguous is a question of law. Moreover, when a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Sims v. Mulhearn Funeral Home, Inc., 07-0054, pp. 9-10 (La. 5/22/07), 956 So. 2d 583, 590.
As a preliminary concern, we must first determine how to properly construe the servitude at issue. As observed by Professor A.N. Yiannopoulos:
In transactions concerning immovable property, contracting parties do not always take care to designate, by its proper name, the kind of right they intend to establish. They use instead descriptive language, and questions frequently arise whether an instrument was intended to transfer ownership, to establish a dismemberment of ownership, or to impose merely personal obligations. The resolution of these questions is a matter of contractual interpretation governed by the general rules of construction of juridical acts as well as by rules applicable specifically to instruments that purport to create servitudes.A.N. Yiannopoulos, Louisiana Civil Law Treatise, Personal Servitudes vol. 3, §8:6, 532-534 (5th ed., West 2011) (footnotes omitted)(emphasis added).
A cardinal rule of contractual interpretation is that the intention of the parties governs. This intention "must be determined from the stipulations in the entire instrument, with a view to giving effect to all of the provisions therein contained and thereby avoid neutralizing or ignoring any of them as surplusage." If the instrument is ambiguous, extrinsic evidence to prove the kind of right that the parties intended to create is admissible. ...
According to the Louisiana Civil Code, a personal servitude is a charge on a thing for the benefit of a person, while a predial servitude is a charge on an estate expressly for the benefit of another estate. La. C.C. arts. 534 and 731. There must be a benefit to the dominant estate. There is no predial servitude if the charge imposed does not benefit the dominant estate. La. C.C. art. 647. When the act does not declare expressly that the right granted is for the benefit of an estate or for the benefit of a particular person, the nature of the right is determined in accordance with La. C.C. arts. 733 and 734. See La. C.C. art. 732. When the right granted confers an advantage on an estate, it is presumed to be a predial servitude. La. C.C. art. 733. When the right granted is merely for the convenience of a person, it is not considered to be a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs and assigns. La. C.C. art. 734. Thus, in order to classify the servitude at issue in this appeal, a determination must first be made whether the servitude simply benefits a person or whether the servitude benefits another estate.
The estate burdened with a predial servitude is designated as "servient"; the estate in whose favor (or in whose owner's favor) the servitude is established is designated as "dominant." La. C.C. art. 646, Revision Comments - 1977, comment (d).
The reservation made in the 1998 act of sale is made solely by the "seller." The deed does not state that the servitude is reserved for the benefit of another estate nor does it provide that the servitude is acquired by the seller as the owner of an estate for itself or its assigns. Further, only the servient estate is described or mentioned in the 1998 act of sale. The right of use may confer an advantage that may be established by a predial servitude, such as a right of passage. La. C.C. art. 640. The right of use is a transferable right that the initial grantee may convey to others. La. C.C. art. 643. Nevertheless, the right of use reserved in the 1998 act of sale is not a predial servitude because of the failure to mention a dominant estate. See St. Andrews Place, Inc. v. City of Shreveport, 940,260, pp. 10-11 (La. App. 2d Cir. 11/4/05), 914 So. 2d 1203, 1210; Sustainable Forests, L.L.C. v. Harrison, 37,152, p. 4 (La. App. 2d Cir. 5/22/03), 846 So. 2d 1283, 1285. Based on these principles, we find the servitude at issue in this appeal to be a personal servitude of right of use. See La. C.C. art. 639.
Having determined the classification of the servitude at issue, we must now determine the merits of the Ritters' claim that the servitude is no longer in effect, either in accordance with the terms of the 1998 act of sale or due to prescription of nonuse.
Contracts are subject to interpretation from the instrument's four corners without the necessity of extrinsic evidence and are to be interpreted as a matter of law. The use of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the agreement. Amitech U.S.A., Ltd. v. Nottingham Construction Company, 09-2048, p. 18 (La. App. 1st Cir. 10/29/10), 57 So. 3d 1043, 1057, writs denied, 11-0866, 11-0953 (La. 6/17/11), 63 So. 3d 1036, 1043. The fact that one party may create a dispute about the meaning of a contractual provision does not render the provision ambiguous. Campbell v. Melton, 01-2578, p. 9 (La. 5/14/02), 817 So. 2d 69, 76.
In this case, the 1998 act of sale is clear, unambiguous, and plainly states that the act of sale is subject of five conditions. Interpreting the five conditions in light of the other provisions in the contract so that each provision is given the meaning suggested by the contract as a whole, see La. C.C. art. 2050, we observe that each of the five conditions listed are all individually delineated, enumerated, and punctuated with a period. There is no use of the word "and" or other indication to imply that any one condition qualifies or limits another condition. The plain language of the contract does not indicate that the one-year limitation provided in condition number three applies to the servitude reserved to the seller in condition number two. Instead, condition number two simply reads "Seller to reserve fifty foot right of egress and ingress on east property line." Whereas, condition number three plainly and simply states "Seller to have one (1) year to remove timber (select cut)." While four of the five conditions listed in the act of sale specifically use the term "timber," no reference is made to "timber" in condition number two so as to justify a finding that condition number two is contingent upon any of the other conditions listed. Thus, based on the plain language of the 1998 act of sale, we find that the servitude reserved by Angie Lumber was not limited to one year.
Hence, we must now consider the Ritters' alternative argument that the servitude should be deemed invalid by virtue of the prescription of nonuse. A personal servitude of right of use is extinguished by nonuse for ten years. See La. C.C. arts. 621, 645, 753, and 3448. Based on the evidence submitted in support of the competing motions for summary judgment, we find that genuine issues of material fact exist regarding whether prescription of nonuse accrued.
The parties all offered the deposition testimony of David J. Terese, who executed the 1998 and 2001 acts of sale as president of Lock No. 1, to support their cross motions. To prove the accrual of the prescription of nonuse, the Ritters relied on the deposition testimony of Mr. Terese, wherein he specifically testified that the servitude had never been used. Initially, to establish that the running of the prescription of nonuse was interrupted, the defendants rely on Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co., 149 La. 100, 110, 88 So. 723, 726 (1921) to argue that prescription was tolled based on the recognition and acknowledgement of the servitude in the 2005 act of sale by Angie Lumber to Hickory Oaks and again in the 2006 act of sale by Hickory Oaks to Leon Lowe.
Prescription of nonuse of servitude is subject to the general rules regarding suspension and interruption of prescription. Palgrave v. Gros, 02-249, p. 4 (La. App. 5th Cir. 9/30/02), 829 So. 2d 579, 582. Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464. To interrupt prescription, an acknowledgement must be clear, specific, positive and unequivocal; it must be made with the intention to interrupt prescription. Wise v. Watkins, 222 La. 493, 497, 62 So. 2d 653, 654 (1952); Mulkey v. Cate, 424 So. 2d 1098, 1099 (La. App. 1st Cir. 1982), writ denied, 429 So. 2d 144 (La. 1983). In Frost-Johnson Lumber, Inc., the Louisiana Supreme Court found that the acknowledgement of the purchaser of the servient estate (i.e. the land burdened with the servitude) in the act of sale interrupted the running of the prescription of nonuse. In this case, however, the 2005 and 2006 acts of sale involved the sale of the dominant estate, not the servient estate. Therefore, we conclude that the acknowledgements and recognition in the 2005 and 2006 acts of sale did not serve to interrupt the running of prescription.
We further note that the supreme court later stated that Frost-Johnson Lumber, Inc, was not "a sound pronouncement of law and [was not] in accord with the later interpretations by this Court of Article 3520," the source provision for article 3464. Wise, 222 La. at 498, 62 So. 2d at 655.
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A different question arises in regard to the .23 acre tract purchased by Lock No. 1 in 2001. Besides adding the additional condition that the act of sale would be subject to "restrictive covenants, easements, servitudes and setback lines, as shown on the map and plat of subdivision," the 2001 act of sale recites all the same conditions as the 1998 act of sale between Angie Lumber and Lock No. 1. Mr. Terese acknowledged the language in the 2001 act of sale as being merely superfluous and an oversight to facilitate the quick transfer of the .23 acres of land, while asserting that the language should have no legal effect because the property purchased was not near nor burdened by the servitude at issue. A strict interpretation of the plain language of the conditions as recited in the 2001 act of sale as establishing a right of ingress and egress in favor of the defendants would lead to an absurd result, because the .23 acres is located to the extreme north of the approximately 91 acres of land that was purchased by Lock No. 1 in the 1998 act of sale. The .23 acres is not adjacent to the southern tract of land owned by the defendants, and as such, could not provide any ingress or egress for any of the defendants to access their tract of land to the south. This fact seems to support Mr. Terese's claim that the language included in the 2001 deed was a mere oversight,
However, the addition of a sixth condition not contained in the 1998 act of sale and the fact that Lock No. 1, nevertheless, did own the property that was burdened with the servitude at issue that could provide the defendants access to ingress and egress their adjacent property seems to contradict Mr. Terese's assertion and could be viewed to indicate acknowledgment and recognition of the existing servitude. Thus, the conflicting nature of this evidence precludes the granting of summary judgment on this basis.
Alternatively, the defendants additionally point out portions of Mr. Terese's deposition testimony wherein he stated that hunters and homesteaders used the land owned by the defendants in the intervening years, which they claim was enough to show preservation of the servitude.
As previously mentioned, the articles pertaining to predial servitudes can equally apply to the personal servitude of right of use, and La. C.C. art. 757 states that "a predial servitude is preserved by the use made of it by anyone, even a stranger, if it is used as appertaining to the dominant estate." See also La. C.C. arts. 640 and 645. When the prescription of nonuse is pled, the owner of the dominant estate has the burden of proving that someone has made use of the servitude in the manner contemplated by the grant of the servitude and as appertaining to the dominant estate during the period of time required for the accrual of prescription, such that no consecutive ten-year period of nonuse occurred. La. C.C. art. 764; Roba v. Courtney, 09-0509, p 8 (La. App. 1st Cir. 8/10/10), 47 So. 3d 509, 515. This court approved language interpreting the phrase, "so long as it is used as appertaining to the dominant estate," as requiring that "someone must use the property for the purpose of going onto that property for some legitimate purpose, either to see the owner or for something connected with the use of that property." Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. Partnership, 01-2812, p. 12 (La. App. 1st Cir. 12/30/02), 839 So. 2d 82, 94, writ denied, 03-0306 (La. 4/4/03), 840 So. 2d 1219 (quoting Latour v. Francis, 417 So. 2d 485 (La. App. 1st Cir.), writ denied, 420 So. 2d 983 (La. 1982)).
In reviewing Mr. Terese's testimony, we observe that his testimony appears to be in reference to the property located to the south of Lock No. 1's property that was owned by the defendants. Close consideration of his testimony reveals that he does not indicate that the hunters and homesteaders hunted on or used land in the area of the servitude.
As pertaining to the homesteaders, Mr. Terese testified that the homesteaders were living on the .23 acres of land purchased by Lock No. 1 in 2001, and claiming ownership of that land. As such, he stated that he gained ownership of the .23 acres of land from Angie Lumber by pointing out the presence of the homesteaders and claiming that the presence of the homesteaders created a liability risk for Angie Lumber. As for the hunters, Mr. Terese acknowledged the presence of the hunters in response to questions regarding how he learned that a successor entity had come to own the property "south of the boundary line." Mr. Terese testified that he learned of the change in ownership from deer hunters who leased the land. Specifically, he stated that "[t]here was the original people that work for the Parish that did road maintenance and that were hunting the property. And then when Mr. Lowe bought the property, he gave permission to another group." As Mr. Terese was specifically questioned regarding property to the "south," this testimony does not appear to support a showing of use of the servitude property, which was to the "east."
Finally, Angie Lumber also offered the affidavit of Herschel Kennedy, an officer with Angie Lumber, in support of its motion for summary judgment, wherein Mr. Kennedy attested that he "personally walked portions of the servitude between the time of the sale to Lock No. 1 in 1998, and the time of the sale to Hickory in 2005." This evidence, which directly contradicts Mr. Terese's statement in his deposition that no use had been made of the servitude, again creates a genuine issue of material fact warranting reversal of the summary judgment granted in favor of the defendants.
CONCLUSION
Based on our de novo review of the record before us, we find that genuine issues of material fact exist regarding the accrual of the prescription of nonuse. As such, we reverse the summary judgment of the trial court in favor of Angie Lumber, Hickory Oaks, and Leon Lowe and remand this matter to the trial court for further proceedings. The costs of this appeal are assessed against the appellees, Angie Lumber Company, Inc., Hickory Oaks, LLC and Leon Lowe and Sons, Inc.
REVERSED AND REMANDED.