Opinion
2016 CA 1066
02-23-2017
HD RIVERSTOP, LLC v. EARNEST J. NAVARRE, JR.
Richard A. Richardson Covington, Louisiana Counsel for Plaintiff-Appellant HD Riverstop, LLC Sherman Q. Mack Matthew H. Todd Albany, Louisiana Counsel Defendant-Appellee Earnest J. Navarre, Jr.
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 137211, DIVISION E, PARISH OF LIVINGSTON
STATE OF LOUISIANA HONORABLE BRENDA BEDSOLE RICKS, JUDGE Richard A. Richardson
Covington, Louisiana Counsel for Plaintiff-Appellant
HD Riverstop, LLC Sherman Q. Mack
Matthew H. Todd
Albany, Louisiana Counsel Defendant-Appellee
Earnest J. Navarre, Jr. BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Plaintiff-appellant, HD Riverstop, LLC (HD Riverstop), appeals the trial court's judgment granting an involuntary dismissal of its claim for termination of a non-exclusive predial servitude of way or passage over its immovable property for the benefit of immovable property presently or formerly owned by defendant-appellee, Earnest J. Navarre, Jr. For the reasons that follow, we affirm.
Although plaintiff averred entitlement to damages, the trial court's dismissal of that claim has not been appealed and, therefore, is not before us in this appellate review.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, Navarre purchased approximately four acres located within the Town of Springfield on Highway 22 in Livingston Parish. In the bend of Highway 22, Navarre subsequently developed about an acre of the property with a convenience store that included a concrete lot which allowed for parking and attached an island for gasoline pumps (the Riverstop convenience store). In August 2004, Navarre sold the Riverstop convenience store to Arnold Investments, Inc. (Arnold Investments), who conveyed a non-exclusive servitude of way or passage (the servitude of passage) in favor of immovable property owned by Navarre. Navarre subsequently built a strip mall on acreage adjacent to the Riverstop convenience store where he housed his doughnut shop. Additional space in the strip mall was leased to a fitness center. Navarre expanded the concrete lot to provide parking space for the strip mall in the area adjacent to the Riverstop convenience store's concrete lot.
About four years later, in July 2008, HD Riverstop purchased the Riverstop convenience store from Arnold Investments, expressly subject to the servitude. In June 2009, Navarre sold the remaining two acres of the original four-acre parcel to WHO Supermarket, LLC, which built a store operating as Carter's Grocery Store. In conjunction with that sale, Navarre expanded the concrete lot from his strip mall to the Carter's Grocery Store lot. He subsequently added additional space to his strip mall that he leased to Pizza Hut. As a result of the additional development, the use over the servitude of passage expanded since it allowed a continuous passage from Carter's Grocery Store, between the front of Navarre's strip mall and the back of the Riverstop convenience store, to and from the northernmost entrance onto Highway 22.
On May 15, 2012, HD Riverstop filed this lawsuit averring that the expanded use of the servitude caused an unsafe volume of traffic in derogation of servitude law and, therefore, it was entitled to have the servitude terminated. A trial on the merits was held, and after HD Riverstop's presentation of its evidence, Navarre moved for and was granted an involuntary dismissal. From the judgment dismissing all claims against Navarre, HD Riverstop has appealed.
Although Navarre moved for a directed verdict, because the matter was conducted by a bench trial, the technically correct designation in this case is a motion for involuntary dismissal, which is the designation we have used. See Robinson v. Dunn , 96-0341 (La. App. 1st Cir. 11/8/96), 683 So.2d 894, 896 n.1, writ denied, 96-2965 (La. 1/31/97), 687 So.2d 410.
LAW AND DISCUSSION
La. C.C.P. art. 1672(B) provides the basis for an involuntary dismissal at the close of a plaintiff's case in an action tried by the court without a jury. In determining whether an involuntary dismissal should be granted, the appropriate standard is whether the plaintiff has presented sufficient evidence on its case-in-chief to establish its claim by a preponderance of the evidence. Unlike the motion for a directed verdict in a jury case, the judge is free to evaluate the evidence and render a decision based upon a preponderance of the evidence, without any special inferences in favor of the party opposed to the motion. Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, the evidence shows the fact or cause sought to be proved is more probable than not. Robinson v. Dunn , 96-0341 (La. App. 1st Cir. 11/8/96), 683 So.2d 894, 896, writ denied, 96-2965 (La. 1/31/97), 687 So.2d 410.
A dismissal based on La, C.C.P. art. 1672(B) should not be reversed in the absence of manifest error. Id. The two-part test for the appellate review of facts is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court, and (2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill , 505 So.2d 1120, 1127 (La. 1987). If a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State , Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993).
A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. C.C art. 646. There is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate. La. C.C. art. 647. The owner of the servient estate is not required to do anything. Its obligation is to abstain from doing something on its estate or to permit something to be done on it. La. C.C. art. 651.
Predial servitudes are established on, or for the benefit of, distinct corporeal immovables. La. C.C. art. 698. A right of passage is an example of a predial servitude. See La C.C. art. 699. A servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate. La. C.C. art. 705. The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, they are governed by the rules set forth in La. C.C. arts. 698-774. La. C.C art. 697.
Initially, we note that when the language in the title establishing the servitude is clear and unambiguous, and the location and extent of the servitude is unambiguous, then the servitude of passage must be given full effect by the court. See Petrovich v. Trabeau , 98-2897 (La. App. 4th Cir. 3/7/01), 780 So. 2d 1258, 1260, writ denied, 2001-1272 (La. 6/15/01), 793 So. 2d 1251 (relying on White v. Durrwachter , 431 So.2d 65, 68 (La. App. 1st Cir. 1983)).
According to the terms creating the servitude of passage,
[Arnold Investments (as HD Riverstop's predecessor in interest)] hereby creates a non-exclusive servitude of way or passage and dedicates same to the property owned by [Navarre] described as TRACT B on the attached plat, and conveys to [Navarre] his heirs, successors and assigns, a non-exclusive servitude of way over and across a strip of ground [17.5] feet in width opening on Louisiana Highway 22 [and] contained within the area defined ... on the plat attached hereto. ...
[Navarre,] his heirs, successors and assigns shall at no time obstruct the servitude of way or passage in a manner so as to interfere with the use thereof by the general public patronizing [the owner of the Riverstop convenience store].
Appended to this opinion is Exhibit "A" showing the plat attached to the act creating the servitude.
Although HD Riverstop avers that the intent of the agreement creating the non-exclusive servitude of passage was to provide passage to Navarre for the strip mall, because the language in the title is clear and unambiguous, we do not ascertain the parties' intent. The servitude was expressly "dedicate[d] ... to the property owned by [Navarre] described as Tract B." And the plat attached to the act creating the servitude identified Tract B as all of the remaining portions of Navarre's four-acre parcel that was not a part of the Riverstop convenience store. Thus, under the terms of the title, the extent of the use of the non-exclusive servitude of passage was dedicated to the remaining portions of the four-acre parcel that were subsequently developed by Navarre as part of his strip mall as well as the two-acre parcel, clearly identified as within Tract B, upon which Carter's Grocery Store was subsequently situated.
HD Riverstop additionally acknowledged that a small structure located on Navarre's property in which snowballs were seasonally sold was present at the time the servitude was created and fell within the ambit of the parties' intended use.
HD Riverstop maintains that it proved the area encompassing the servitude became unsafe due to the volume of traffic once Navarre extended the concrete lot to join it to the concrete in front of the addition to the strip mall that he leased to Pizza Hut and the two-acre parcel upon which Carter's Grocery Store was located. Therefore, HD Riverstop urges that Navarre breached the terms of the title creating the servitude because the unsafe condition obstructed use of the servitude by the Riverstop convenience store patrons.
HD Riverstop played video surveillance recordings while Cynthia "Renee" Harrell, the HD Riverstop member who manages the Riverstop convenience store, explained what the trial judge was viewing. According to Harrell, the video showed vehicles of the doughnut shop patrons colliding into several of her employees' parked vehicles; and one that Harrell identified as a doughnut shop patron's vehicle colliding into the vehicle of a patron of the Riverstop convenience store. Thus, HD Riverstop has correctly pointed out that it offered proof tending to establish that the area where the servitude is situated is unsafe. But at the time HD Riverstop acquired the Riverstop convenience store, it is undisputed that the doughnut shop was already built. Thus, the evidence does not show an unsafe condition created by an expanded use.
The video recording was neither introduced nor admitted into evidence and, therefore, is not contained in the appellate record.
More importantly, HD Riverstop offered nothing to show that the ostensibly unsafe condition obstructed use of the servitude by the Riverstop convenience store patrons. Even accepting the definition HD Riverstop contends applies, i.e., "to hinder from passage, action, or operation: impede," the record is simply devoid of any testimony or other evidence demonstrating that anything about the expanded use of the servitude "hinder[ed] from passage, action, or operation" or otherwise "imped[ed]" the general public from patronizing the Riverstop convenience store. Therefore, there is no error in the trial court's conclusion that HD Riverstop was not entitled to termination of the servitude of passage because of a violation of the terms in the title.
See www.merriam-webster.com/dictionary/obstruct. --------
Lastly, HD Riverstop contends that expanded use of the servitude has aggravated the Riverstop convenience store. It claims that congestion by the expanded use of the servitude of passage has resulted in loss of use of a portion of the Riverstop convenience store's north parking lot and caused damage to the building by large trucks. HD Riverstop also urges the servitude of passage is not needed by Navarre for his strip mall or by Carter's Grocery Store because each has access to public roads.
We note that the title creating the servitude of passage expressly dedicated it "to the property owned by [Navarre] described as TRACT B." (P-7) Therefore, expansion of use to accommodate Navarre's "successors and assigns" of Tract B was foreseeable and reasonable. See La. C.C. art. 705. Absent an unreasonable expanded use of the servitude of passage, mere expansion of use is not an aggravation of the Riverstop convenience store. As we have noted, it is undisputed the doughnut shop was already built when HD Riverstop acquired the Riverstop convenience store. And HD Riverstop failed to present evidence showing that an unsafe condition was created by an expanded use of the servitude subsequent to its acquisition. Therefore, the trial court's implicit finding that any unsafe condition due to vehicular accidents was not an aggravation of the Riverstop convenience store is supported by the record and not manifestly erroneous.
Insofar as the loss of use of the northern parking lot of the Riverstop convenience store, that loss occurred when Navarre built his strip mall, prior to HD Riverstop's acquisition of the convenience store that it purchased subject to the servitude. Thus, the expanded use of the servitude due to the development of Tract B could not have been an aggravation to HD Riverstop on this basis, and the trial court was not manifestly erroneous in so concluding.
Whether a particular use constitutes an aggravation of the servient estate is a question of fact, determined in light of the circumstances of each case. A.N. Yiannopoulos, 4 La. Civ. L. Treatise , Predial Servitudes § 7:9 (4th edition). The trial court rejected the testimony of Harrell suggesting that the cracks in the building were caused by 18-wheelers as they sped over the speed bumps Navarre installed in Tract B. And on cross examination, Harrell conceded that the garbage truck that empties the dumpster that she relocated to the back of the Riverstop convenience store, across from Navarre's strip mall, could have possibly caused the cracks and damage to the building. Therefore, there is no manifest error in the trial court's conclusion that HD Riverstop failed to prove that expanded use of the servitude resulted in an aggravation to the Riverstop convenience store by causing cracks and damage to the building.
HD Riverstop failed to show that Navarre or his successors and assigns violated the servitude agreement by obstructing its use for the Riverstop convenience store patrons. And we have concluded that a reasonable factual basis exists to support the finding that the expanded use of the servitude did not constitute an aggravation of HD Riverstop. Therefore, the trial court correctly granted the involuntary judgment of dismissal of HD Riverstop's claim for termination of the servitude of passage.
DECREE
For these reasons, the trial court's judgment dismissing all of HD Riverstop's claims against Navarre is affirmed. Appeal costs are assessed to HD Riverstop, LLC.
AFFIRMED.
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