Opinion
NO. 2017–CA–0331
10-18-2017
The SUCCESSION OF Eileen Magdalyn Fletcher RASCH v. Louise C. DABEZIES
Adam V. Vickers CARA STONE, LLP 650 Poydras Street, Suite 1130 New Orleans, LA 70130 COUNSEL FOR PLAINTIFFS/APPELLEES, THE SUCCESSION OF EILEEN MAGDALYN FLETCHER RASCH Jonathan M. Walsh Cassie E. Preston DEUTSCH KERRIGAN, LLP 755 Magazine Street New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLANT, LOUISE C. DABEZIES
Adam V. Vickers CARA STONE, LLP 650 Poydras Street, Suite 1130 New Orleans, LA 70130 COUNSEL FOR PLAINTIFFS/APPELLEES, THE SUCCESSION OF EILEEN MAGDALYN FLETCHER RASCH
Jonathan M. Walsh Cassie E. Preston DEUTSCH KERRIGAN, LLP 755 Magazine Street New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLANT, LOUISE C. DABEZIES
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A. Brown )
Terri F. Love, Judge
This appeal arises from a dispute regarding a predial servitude that established a common driveway between two properties owned by plaintiffs and defendant. Defendant constructed a concrete slab and a fence, which prevented the plaintiffs from utilizing the common driveway. Plaintiffs filed a motion for summary judgment seeking the enforcement of the servitude. The trial court granted plaintiffs' motion for summary judgment and issued a permanent injunction prohibiting defendant from obstructing access to the servitude. Defendant appealed.
We find that the trial court did not err by granting plaintiffs' motion for summary judgment and holding that the predial servitude was not extinguished due to nonuse. However, we find that the trial court improperly utilized a hearing on a motion for summary judgment to issue a permanent injunction without a trial on the merits. As such, the portion of the judgment of the trial court relating to granting the summary judgment and finding that the predial servitude remains is affirmed. Conversely, the portion of the judgment relative to the permanent injunction is vacated and the matter remanded for further proceedings consistent with this opinion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Eileen Magdalyne Fletcher Rasch purchased the double located at 3016–18 Calhoun Street ("Property") in New Orleans subject to a servitude, as outlined in the bill of sale, which created a common driveway between her property and the property located at 3012–14 Calhoun Street, presently owned by Louise C. Dabezies. Mrs. Rasch lived there from 1948 until her death in 1997. In April 2007, Ms. Dabezies constructed a concrete slab and fence on a portion of the area designated as the common driveway by the servitude: thus, preventing Mrs. Rasch's successors ("the Succession") from accessing and using the same.
Michael Rasch, as the administrator of and on behalf of the succession of Mrs. Rasch, filed a Petition for Injunctive Relief, or Alternatively, Enforcement of Servitude, and Damages ("Petition") against Ms. Dabezies. Ms. Dabezies filed the exceptions of lack of procedural capacity, non-joinder, and no right of action in response to the Petition. The exceptions were based on the premise that the Succession sold the Property and was not the titled owner. Plaintiff responded by filing an amended petition that added Stacie R. Pearse and Joacquin E. Pearse, Jr. as additional plaintiffs. The Pearses purchased the Property from the Succession after the original Petition was filed.
Ms. Dabezies then filed an Answer and Reconventional Demand naming defendants-in-reconvention as Mr. Rasch, personally and in his capacity as the administrator of the Succession, and the Pearses. Ms. Dabezies contended that the Succession failed to maintain the Property and hired negligent workmen. Plaintiffs filed a second amended petition to alert the court that Mr. and Mrs. Pearse divorced. Mr. Pearse released all of his rights, title, and interest in the Property. Ms. Dabezies responded by filing an exception of prescription, contending that the fence was erected in April 2007, thus Plaintiffs had until April 2008 to file their petition. The trial court conducted a hearing and granted the exception of prescription as to the Plaintiffs' tort damages, dismissing those claims with prejudice.
Stacie R. Pearse is now Stacie Rasch Daigre.
The Petition was filed in July 2008.
Ms. Dabezies then filed Motions for Summary Judgment regarding Stacy's damages and attorneys' fees. She also filed Motions for Partial Summary Judgment seeking the dismissal of Mr. Rasch's and the Succession's claims, as well as Stacy's claims for property damage and attorneys' fees. The trial court denied the Motion for Partial Summary Judgment regarding Mr. Rasch and the Succession's claims, but granted the Motions for Summary Judgment regarding Stacy's property damage claims and the Plaintiffs' claims for attorneys' fees. Stacy's property damage claims and the claims for attorneys' fees were dismissed with prejudice.
Plaintiffs filed a Motion for Summary Judgment seeking to enforce the servitude, an order to remove the fence and concrete slab, as well as a dismissal of Ms. Dabezies' reconventional demands. Ms. Dabezies filed a Motion to Dismiss her reconventional demands without prejudice in an attempt to "streamline" the lawsuit, which the trial court granted. Following a hearing on Plaintiffs' Motion for Summary Judgment, the trial court granted the motion and issued a permanent injunction to enforce the predial servitude. The trial court ordered Ms. Dabezies to remove all obstructions to the usage of the servitude. Ms. Dabezies was permanently enjoined from obstructing the use of and access to the servitude. The trial court also noted the dismissal with prejudice of Ms. Dabezies' reconventional demands. Ms. Dabezies' motion and order for a suspensive appeal followed.
Ms. Dabezies later filed an Amended Motion to Dismiss her reconventional demands "with" prejudice.
Ms. Dabezies contends that the trial court erred because genuine issues of material fact remain regarding whether the servitude was extinguished due to nonuse.
SUMMARY JUDGMENT
"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action." La. C.C.P. art. 966(A)(2). "The procedure is favored and shall be construed to accomplish these ends." Id. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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(A)(3). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966(A)(4). "In all cases, the court shall state on the record or in writing the reasons for granting or denying the motion. If an appealable judgment is rendered, a party may request written reasons for judgment as provided in Article 1917." La. C.C.P. art. 966(C)(4).
The trial court did not give reasons on the record or written reasons for judgment. It is unclear from the record if all parties and the court otherwise agreed to same.
"The burden of proof rests with the mover." La. C.C.P. art. 966(D)(1). "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id. "In determining whether the movant has satisfied his burden of showing that no genuine issues of material fact exist and that he is entitled to judgment as a matter of law, documents supporting the movant's position are closely scrutinized, while the opposing documents are treated indulgently." Transworld Drilling Co. v. Texas Gen. Res., Inc. , 604 So.2d 586, 589 (La. App. 4th Cir. 1992).
Appellate courts review the trial court's granting of a motion for summary judgment with the de novo standard of review. Bowser v. Premier Auto. Grp. , 07-0324, p. 6 (La. App. 4 Cir. 11/14/07), 971 So.2d 426, 429. We must use "the same criteria applied by trial courts to determine whether summary judgment is appropriate." Transworld , 604 So.2d at 589. "Granting of the motion may not be based on the court's belief that the party opposing the motion has little chance of succeeding at trial." Transworld , 604 So.2d at 590.
Predial Servitude
Plaintiffs' Motion for Summary Judgment contended that the predial servitude creating the common driveway was not extinguished due to nonuse. Ms. Dabezies asserts, however, that the trial court erred by granting the motion for summary judgment because genuine issues of material fact exist as to whether the servitude was extinguished due to nonuse. We disagree.
"The establishment of a predial servitude by title is an alienation of a part of the property to which the laws governing alienation of immovables apply." La. C.C. art. 708. "Predial servitudes are established by all acts by which immovables may be transferred." La. C.C. art. 722. It is undisputed that a servitude establishing a common driveway existed on the properties. The servitude was contained within the titles and transfers of the properties for decades. Rather, Ms. Dabezies contends that the servitude was extinguished from nonuse.
"A predial servitude is extinguished by nonuse for ten years." La. C.C. art. 753. "Prescription of nonuse begins to run for affirmative servitudes from the date of their last use, and for negative servitudes from the date of the occurrence of an event contrary to the servitude." La. C.C. art. 754.
To demonstrate use of the servitude and in support of the Motion for Summary Judgment, Plaintiffs submitted the following: 1) the 1953 Act of Sale for the Property, 2) the 2008 Cash Sale of the Property, 3) Ms. Dabezies' 1996 Act of Sale, 4) excerpts of Mr. Rasch's deposition with attached photographs, 5) excerpts of Stacie Rasch Daigre's deposition with attached photographs, 6) the affidavit of Kellie Thomas with attached photographs, 7) the affidavit of Joaquin Pearse, 8) excerpts from Ms. Dabezies' deposition, 9) the affidavit of Richard Dading and attached land surveying documents, 10) Ms. Dabezies' supplemental answers to Plaintiffs' Interrogatories, 11) Ms. Dabezies' Answer to Plaintiffs' First Amending and/or Supplemental Petition and Original Petition and Defendant's Reconventional Demand, and 12) Ms. Dabezies' Supplemental and Amended Witness and Exhibit List.
Plaintiffs established through the testimony of Mr. Rasch and Ms. Daigre that the common driveway was utilized within the ten-year prescriptive period with dated photographs taken during Hurricane Katrina cleanup wherein their vehicles were parked in the common driveway area. The photographs were authenticated by the Raschs in their depositions and affidavits. Mr. Rasch testified and presented photographs of his Corvette in the garage following Hurricane Katrina. Further, Mr. Pearse, Ms. Daigre's ex-husband, corroborated that Mr. Rasch drove the Corvette on the common driveway numerous times. Mr. Pearse also helped the family clean up the Property following Hurricane Katrina.
Moreover, the Rasch family members' testimony, via deposition and affidavit, demonstrated that the common driveway was also used every Easter during the family's Easter party. Ms. Thomas, Mr. Rasch's daughter, stated in her affidavit that the Easter parties occurred "annually from 2002 through 2005. Ms. Thomas recounted that her family members, as well as guests, used the common driveway during the Easter parties.
Once Plaintiffs established a prima facie showing that the servitude was utilized within the ten-year prescriptive period, Ms. Dabezies, as the nonmoving party, was required to demonstrate "that a material factual issue remain[ed]." Phipps v. Schupp , 09-2037, p. 6 (La. 7/6/10), 45 So.3d 593, 597.
Ms. Dabezies' opposition contained: 1) excerpts of Mr. Rasch's deposition, 2) excerpts of Ms. Daigre's deposition, 3) documents from proceedings in the Succession, 4) excerpts from Ms. Dabezies' deposition, 5) excerpts of the assessor's deposition, 6) letters to and from the assessor, and 7) documents relating to Mr. Rasch's homestead exemption.
Ms. Dabezies asserts that genuine issues of material fact exist as to the credibility of Plaintiffs' evidence.
Ms. Dabezies contends that Mr. Rasch erroneously received a homestead exemption on the Property and attempts to impugn his credibility thusly. Information regarding homestead exemptions is irrelevant to the subject matter of this appeal.
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Here, all of the testimony and the photographs corroborate that the common driveway was used within the ten-year prescriptive period. Ms. Dabezies admitted in her deposition that she could not contradict that the photographs were taken after Hurricane Katrina, as dated. Ms. Dabezies also testified that it was possible that someone could have driven up and down the common driveway while she was not there. The majority of Ms. Dabezies evidence submitted with the Opposition to the Motion for Summary Judgment concerned the alleged ill-gotten homestead exemption and Mr. Rasch's alleged untruthfulness. Accordingly, Ms. Dabezies failed to produce evidence of a material factual dispute once Plaintiffs established a prima facie case. This failure "mandates the granting of the motion." Phipps , 09–2037, p. 6, 45 So.3d at 597.
Ms. Dabezies also contended that parking on the servitude was not sufficient to constitute a use. However, the Louisiana Supreme Court held that "[a] partial use of the servitude constitutes use of the whole." Phipps , 09–2037, p. 15, 45 So.3d at 603. In Phipps , the Supreme Court found that a servitude was not extinguished due to nonuse when the right of passage was exercised by walking on the driveway as opposed to driving, once vehicular access was blocked. Id. The Supreme Court found that usage of the servitude was not disturbed until use in any capacity was prevented. Id. As such, Ms. Dabezies' contention lacks merit.
Having presented a prima facie case that the common driveway was used within the ten-year prescriptive period and that Ms. Dabezies failed to present that genuine issues of fact remain, Plaintiffs met their burden on the Motion for Summary Judgment. Therefore, we do not find that the trial court erred by granting the Motion for Summary Judgment and finding that the servitude remains valid. That portion of the trial court's judgment is affirmed.
PERMANENT INJUNCTION
The trial court also utilized the granting of Plaintiffs' Motion for Summary Judgment to grant a permanent injunction, containing both mandatory and prohibitory orders, enforcing the predial servitude.
"A permanent injunction can only be issued under art. 3601 after a trial on the merits in which the burden of proof is a preponderance of the evidence." Yokum v. 544 Funky, LLC , 15-1353, p. 16 (La. App. 4 Cir. 9/28/16), 202 So.3d 1065, 1075.
At the hearing on Plaintiffs' Motion for Summary Judgment, the trial court considered the motion, opposition, attached memoranda, exhibits, and brief argument by counsel. The hearing was not evidentiary in nature, and no live testimony was adduced. The parties did not stipulate that the hearing on Plaintiffs' Motion for Summary Judgment would be consolidated with the trial on the merits for a permanent injunction and without adducing live testimony. See Elysian Fields Church of Christ v. Dillon , 08-0989, p. 8 (La. App. 4 Cir. 3/18/09), 7 So.3d 1227, 1232. This is evidenced by Ms. Dabezies' assertion that genuine issues of material fact preclude the granting of a summary judgment.
A hearing on a motion for summary judgment has differing evidentiary burdens, as well as differing types of admissible evidence from that of a trial on the merits of a permanent injunction. Ms. Dabezies is entitled to a trial on the merits for the permanent injunction. Accordingly, as the trial court utilized the improper procedural vehicle for the issuance of a permanent injunction, we vacate the portion of the judgment relative to the permanent injunction and remand the matter for further proceedings consistent with this opinion. See Hyman v. Puckett , 15-0930 (La. App. 4 Cir. 5/4/16), 193 So.3d 1184 : Elysian Fields Church of Christ , 08–0989, 7 So.3d 1227. DECREE
For the above-mentioned reasons, we find that the trial court did not err by granting Plaintiffs' Motion for Summary Judgment and finding that the predial servitude was not extinguished. However, a motion for summary judgment was an improper procedural vehicle for the issuance of a permanent injunction. Accordingly, we vacate the portion of the trial court's judgment relative to the permanent injunction and remand the matter for further proceedings consistent with this opinion.