Opinion
NUMBER 2013 CA 0095
2013-09-30
ROBERT ALLEN, JR. AND JOYCE L. ALLEN v. DOYLE LACY
Jay M. Simon Baton Rouge, LA Counsel for Plaintiffs/Appellees Robert and Joyce Allen Michael E. Parks New Roads, LA Counsel for Defendant/Appellant Doyle Lacy
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
Eighteenth Judicial District Court
In and for the Parish of Pointe Coupee
State of Louisiana
Docket No. 43,868
Honorable James J. Best, Judge
Jay M. Simon
Baton Rouge, LA
Counsel for
Plaintiffs/Appellees
Robert and Joyce Allen
Michael E. Parks
New Roads, LA
Counsel for
Defendant/Appellant
Doyle Lacy
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
GUIDRY,J.
Defendant appeals a judgment declaring a servitude reserved in favor of an estate in which he held a co-ownership interest prescribed for nonuse and finding him liable for damages for activities conducted on the property adjoining that on which the servitude had been reserved. For the reasons that follow, we reverse the judgment in part, vacate the remainder of the judgment and remand this matter to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
In 1981, the defendant, Doyle Lacy, purchased 32 acres of land in Pointe Coupee Parish from his parents, Gus and Burnice Lacy. The act of sale for the 32 acres included the following provision:
Vendor, Gus Lacy, reserves for himself, his heirs and assigns, a perpetual right of passage thirty (30) feet in width over the extreme southern 47.13 foot wide strip of land included in the act of sale by Gus Lacy to Doyle Ray Lacy, commencing at the right-of-way of the public highway which runs along Bayou Latanache to the eastern boundary line of the 26.40 acre tract of land owned by Gus Lacy and shown on the map of survey made by Bruce L. Bordelon and hereinabove referred to.
In 1998, Mr. Lacy lost possession of the 32 acres he purchased from his parents due to foreclosure, and the property was sold to Robert and Joyce Allen by sheriffs sale in March 1999. In the meantime, following the death of his parents, Mr. Lacy acquired an ownership interest in the 26.40-acre tract of land for which his father had reserved the 30-foot wide predial servitude. A judgment of possession, signed August 3, 2006, recites that Mr. Lacy holds a 1/13th interest in the 26.40 acres of land, which ownership interest Mr. Lacy holds in conjunction with 18 other intestate heirs of his parents' successions.
See La. C.C. art. 734.
Despite losing ownership of the 32-acre property and the acquisition of ownership of that property by the Aliens, Mr. Lacy continued to conduct various activities on the 32-acre tract, including cutting down trees to sell as firewood, planting and harvesting crops, and cutting down fences erected by the Aliens on the property. Hence, a dispute arose between Mr. Lacy and the Aliens regarding Mr. Lacy conducting these activities on the Aliens' land. When Mr. Lacy refused to cease engaging in the objectionable activities, the Aliens filed a petition for damages against Mr. Lacy on April 8, 2011, seeking damages and a declaration that the predial servitude reserved in the 1981 act of sale was extinguished for lack of use. Mr. Lacy denied the allegations of the Aliens' petition and further reconvened against the Aliens to assert a claim for damages for alleged interference with his use of the 30-foot servitude.
On August 14, 2012, a trial was held regarding the various claims asserted by the parties, following which the trial court rendered judgment in favor of the Aliens, finding Mr. Lacy liable for trespass and declaring the 30-foot servitude reserved in the 1981 act of sale to be extinguished due to the prescription for nonuse for a period of over ten years. Mr. Lacy appeals that judgment, assigning as error the trial court's finding that the 30-foot servitude has been extinguished as a result of ten years nonuse and the trial court's award of damages to the Aliens.
DISCUSSION
According to La. C.C.P. art. 927, there are several objections that a court may raise by peremptory exception on its own motion, including the objection of nonjoinder of a party under La. C.C.P. arts. 641 and 642. See also La. C.C.P. art. 645. At the trial in this matter, it was openly acknowledged that Mr. Lacy did not hold an exclusive interest in the 26.40-acre tract of land for which the 30-foot servitude at issue was reserved, but instead, he possessed the interest in co-ownership with at least 18 other heirs of his deceased parents.
While this action was instituted solely against Mr. Lacy because of the activities he was conducting on the Aliens' land, the consequence of the trial court's decree that the 30-foot predial servitude is extinguished for nonuse is not limited to Mr. Lacy. As such, the trial court's determination that the servitude no longer exists also affects the interests of the co-owners of the 26.40-acre tract for which the servitude was established. Article 641 of the Code of Civil Procedure provides:
See La. C.C. art. 753.
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.
In this case, it is possible that the Aliens could incur the inconsistent obligation of having to honor and recognize the continued existence of the 30-foot servitude in regards to the other co-owners in the event that any of the co-owners could prove use of the servitude such that the objection of prescription for nonuse could not be sustained. Moreover, there is no showing in the record that the other co-owners of the 26.40-acre tract could not be joined in the Aliens' petition to declare the servitude extinguished. See La. C.C.P. art. 642. Thus, we find that it was improper for the trial court to render judgment declaring the 30-foot servitude at issue to be extinguished in the absence of the other co-owners of the 26.40-acre tract being joined in the action. Therefore, the trial court judgment declaring the servitude to be extinguished is vacated, without prejudice to the Aliens, thereby permitting the Aliens to file an amended petition or bring an appropriate action joining all interested persons in the action to declare the servitude extinguished. See Stephenson v. Nations Credit Financial Services Corp., 98-1688 (La. App. 1st Cir. 9/24/99), 754 So. 2d 1011.
In Mr. Lacy's second assignment of error, he asserts that the trial court erred in the determination of the amount of damages owed to the Aliens. We find some merit in this assignment.
The trial court awarded the Aliens $10,341.60 in damages, and although the judgment does not specify the items for which the damages were awarded, in its oral reasons for judgment, the trial court ordered that damages be awarded for Mr. Lacy's actions of cutting down trees, planting and harvesting crops, and cutting down fences on the Aliens' land. As pertaining to the cutting of trees and fences, part of Mr. Lacy's defense to this claim was based on his assertion that the trees and fences at issue were located within the 30-foot servitude. Review of these items of damages would require consideration of whether the location of the servitude on the Aliens' land was properly determined. Because of our previous finding that any determination of the trial court relative to the servitude should be done pursuant to an action in which all persons having an interest in the servitude are joined, we decline to review the trial court's determination regarding where and how far the 30-foot servitude extends onto the Aliens' land. A determination of the dispute regarding how far onto the Aliens' land the servitude extends should properly await joinder of the other parties needed for just adjudication, which parties might possibly offer countervailing evidence that would support Mr. Lacy's contention. Therefore, we pretermit consideration of the trial court's award of damages for the cutting of trees and fences and will simply vacate the award to allow for further consideration of these items of damages on remand of this matter to the trial court for joinder of the additional parties.
According to Mr. Allen's testimony and the documentary evidence submitted at trial, the value given for the trees cut down by Mr. Lacy was $5,405.70, the value for the crops planted and harvested was $4,782.70, and the cost of repairing the fences cut down by Mr. Lacy was $ 153.20, resulting in a total of $ 10,341.60.
In its reasons for judgment, the trial court expressly observed that Mr. Lacy did not offer any "positive evidence, no expert testimony, nothing other than, that's not the boundary. Not one surveyor came in and said that St. Romain [the surveyor who produced the survey for the Aliens] was wrong."
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The other defense asserted by Mr. Lacy in contesting the damages claimed by the Aliens was that the claim were prescribed; however, the trial court overruled the objection of prescription based on. the theory of continuing tort.
The claim for the planting and harvesting of crops on the Aliens' land relates to immovable property, and thus, the general prescriptive period for claims for damages to immovable property should apply. According to La. C.C. art. 3493, claims for damages to immovable property are subject to a one-year prescriptive period. Mr. Allen and Mr. Lacy both testified that Mr. Lacy last planted and harvested crops on the Aliens' land in 2009. Yet, the trial court found that Mr. Lacy's actions of continuously trespassing on the Aliens' land constituted a continuing tort such that prescription was suspended as to any and all damages sustained by the Aliens.
In Crump v. Sabine River Authority, 98-2326, p. 7 (La. 6/29/99), 737 So. 2d 720, 726, the Louisiana Supreme Court observed that "the theory of continuing tort has its roots in property damage cases and requires that the operating cause of the injury be a continuous one which results in continuous damages." The court then proceeded to cite from a treatise on predial servitudes by Professor A.N. Yiannopoulos to explain that "where the operating cause of injury is a continuous one and gives rise to successive damages, prescription dates from the cessation of the wrongful conduct causing the damage." Crump, 98-2326 at p. 7, 737 So. 2d at 726. In this case, by acknowledgement of the parties, the specific wrongful conduct causing the damage complained of - the planting and harvesting of crops on the Aliens' land - ceased in 2009. Thus, prescription began to run from 2009, the date Mr, Lacy ceased to plant and harvest crops on the Aliens' land. As the petition claiming damages for this conduct was not filed until April 8, 2011, this item of the Aliens' damages claim was clearly prescribed, and the trial court erred in awarding the Aliens this item of damages.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the trial court to the extent it finds Mr. Lacy liable for damages associated with the planting and harvesting of crops on the Aliens' land. We vacate the remainder of the judgment and remand this matter to the trial court for further consideration after joinder of Mr. Lacy's fellow co-owners of the 26.40-acre property pursuant to La. C.C.P. art. 641. All costs of this appeal are assessed one-half to Doyle Lacy and one-half to Robert and Joyce Allen.
REVERSED IN PART; VACATED AND REMANDED.