Roba, Inc. VS Mona Lackmann Courtney and James B. Courtney, II
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 0508 ROBA INC VERSUS MONA LACKMANN COURTNEY AND AMES B COURTNEY II On Appeal from the 21st udicial District Court E c Parish of St Helena Louisiana Docket No 16068 Division D Honorable Robert H Morrison III udge Ad Hoc Presiding n Peggy M H Robinson Attorney for Baton Rouge LA Appellant Plaintiff Roba Inc Robert Attorney for Carter Greensburg LA Appellees Defendants Mona L Courtney and ames B Courtney II BEFORE PARRO KUHN AND McDONALD JJ udgment rendered August 30 2010 PARRO The plaintiff appeals a judgment sustaining an exception raising the objection of prescription in favor of two defendants and dismissing its claim against them for damages and attorney fees relating to an Agreement for Right of Way For the following reasons the judgment is affirmed and the matter is remanded Factual Backaround and Procedural Historv In 1988 Roba Inc Roba purchased a 12 tract of land from James acre Courtney II and his wife To the east of the 12 tract and adjacent thereto was acre a 49 tract of land that had been purchased by Robert L Lucien from the acre 9678 Courtneys in 1987 that fronted on Highway 1047 In connection with the sale of the acre 12 tract a document entitled Agreement for Right of Way the 1988 agreement was executed on an unspecified day in May 1988 by the Courtneys only even though Roba was a named party to the document In that document it was declared that they will establish the Right of Way from the lake property to Louisiana Highway 1047 on the North side of the Roba Inc property not to be included in the Roba Inc property The Courtneys agree that the Right of Way will be created on the property they own on the North side of the Roba Inc property the legal description of which was provided This document was recorded on the same day as the deed May 18 1988 in conveyance book number 176 page 674 instrument number 062686 in the official records of the parish of St Helena In 1992 Roba purchased a 51 tract of land from the Courtneys The acre 3449 tract included a lake and borders Roba 12 tract to the west and the south The s acre 1992 cash deed does not refer to any right associated with the sale Neither way of the 1988 nor the 1992 deeds reflected that those tracts were burdened by a servitude On April 30 1998 Roba filed suit against the Courtneys for specific performance That deed was recorded on May 18 1988 in conveyance book number 176 page 670 instrument number 062683 in the official records of the parish of St Helena Z Mr Lucien was the vice president and secretary of Roba at that time 3 In connection with the 1987 deed an agreement similar to the 1988 agreement had been executed by the Courtneys only even though Mr Lucien was a named party to the document A title examination performed by an attorney in connection with Roba 1992 purchase revealed that s here t is no right of way from the above said property to a public road 2 seeking to enforce the 1988 agreement and its provision allegedly requiring the establishment of a right Roba demanded a 40 right over the way of wide way foot of southern boundary of the Courtneys remaining property In their answer the Courtneys pled that Roba claim for the establishment of the right had s way of prescribed On November 2 1998 Roba supplemented and amended its petition to add as defendants Mitchell R and Pamela J Radecker who had purchased a 12 87 acre tract on July 28 1998 from the Courtneys that bordered Roba property to the s north and was allegedly subject to a proposed east right Roba alleged west of way that a plat of survey attached to the Radeckers deed disclosed that a portion of the tract was burdened with a right of an undetermined size along the south way of property line in favor of Roba and Mr Lucien A default judgment was confirmed on June 2 1999 against the Radeckers recognizing a 30 right along the wide way foot of southern boundary line of their 12 tract as shown in a June 2 1998 survey by acre 87 Robert G Barrilleaux Associates Inc registered in conveyance book 222 page 177 in the official records of St Helena Parish Pursuant to an August 24 2001 deed Tony L Noto r and his wife bought two tracts of land from Mr Courtney Those tracts bordered the northern side of Mr s Lucien properry In the 2001 deed the Notos acknowledged that this property was burdened by a servitude described in an agreement recorded in conveyance book 170 page 638 of the official records of St Helena Parish On December 22 2004 the Radeckers sold their 12 tract to William J acre 87 and Lori B Hall who owned a 10 tract that bordered the 12 tract on the acre 5 acre 87 north In connection with the 2004 sale a title examination was performed by the same attorney who rendered a title opinion in connection with the 1992 sale to Roba 5 A notice of the pendency of that action was filed with the clerk of court for the parish of St Helena 6 That act reflects that the Courtneys were divorced by this time This reference is to the Agreement for Right of Way executed in connection with the Courtneys 1987 sale to Mr Lucien e The Halls had purchased the 10 tract on May 29 1996 A May 18 1998 survey map of this tract acre 5 reflects that a barbed fence surrounded most of the 10 tract It also disclosed the existence wire acre 5 of a 12 gravel driveway extending south from Idle Lane a 14 public gravel road to the south foot foot property line near the Hall home s 3 The 2004 opinion indicated that the Radeckers title was subject in pertinent part to the following 4 Right of way granted by the Courtneys across property to North of ROBA Inc and in favor of ROBA Inc from Lake Property to Louisiana Highway 1047 dated May 1988 and duly recorded at Conveyance Book 176 674 Page il The map and survey of the 12 acre tract of property belonging 87 to the Radeckers and recorded at Conveyance Book 222 Page 177 indicates that there is a shed located on the hereinabove described tract of property that appears to be located within the right of way apparently established by ROBA Inc as set forth hereinabove On February 22 2006 Roba filed a second supplemental and amending petition adding the Notos as defendants In that supplemental and amending petition Roba averred The named Defendants Courtneys Radeckers and Notos have been amicably asked to acknowledge the right in favor of ROBA way of Inc granted by the Courtneys in the original acquisition and agreement to provide right and have refused to sign same In actual fact the way of way of right is encumbered by a fence with a lock and the parties despite amicable demand have not removed the restrictions for a free way of right Additionally Roba asserted for the frst time a claim for damages and attorney fees against all of the defendants In particular Roba alleged The Defendants and their successors as obligors are liable to your Plaintiff for attorney fees cost of providing or constructing the right s of way in accordance with La C Art 1997 and 1998 and your Petitioner asks that after a trial on the merits said damages be assessed against the Defendants jointly severally and in solido to your Plaintiff The Courtneys then filed an exception raising the objection of prescription as to Roba s claim for damages and attorney fees Their exception focused on the eight delay in year s Roba assertion of its claim for damages and attorney fees They urged that they were prejudiced by the 2006 amendment to Roba petition thus the amendment should not s be allowed to relate back to the original filing Roba opposed the exception in light of the Courtneys continuous denial of its right to a servitude as set out in the agreement to provide a right in connection way of with the original transfer of the property According to Roba the subsequent sales to 4 the Radeckers and the Notos diluted its ability to have the servitude established The claim for damages and attorney fees against the Courtneys was allegedly necessitated by the sale of property to the Radeckers and the Notos without disclosure of the 1988 way of right agreement Accordingly Roba asserted that the Courtneys actions interrupted prescription as to its claim for damages and attorney fees Following a hearing on the Courtneys exception of prescription regarding the second supplemental and amending petition the trial court analyzed the issues presented as follows Exceptors maintain that the failure to bring claims for damages until the amendment of pleadings some eight years subsequent to the filing of the original petition should bar these claims by prescription Plaintiff maintains that these claims should relate back to the filing of the original petition under Article 1153 of the Code of Civil Procedure and further contends that the actions of Exceptors amount to a continuous tort which is ongoing and has therefore not prescribed In Spencer Inc v Service Merchandise Inc Wallinqton 562 So 2d 1060 La App l Cir 1990 writ denied 567 So 2d 109 La 1990 the original corporate plaintiff filed an action seeking damages for breach of contract A later claim for delictual damages then otherwise prescribed was not held to relate back to the original petition for purposes of defeating the claim of prescription As stated in National Surety Cora v Standard Accident Insurance Co 168 So 2d 858 La App 2 Cir 1964 one of the essential requirements for the application of prescriptive provisions as established in our jurisprudence is the notification to a defendant not only of the cause of the action but the nature and e of the demand It ent therefore appears proper to conclude that a claim which either changes the nature or enlarges the extent of the demand is not protected against the limitation of a prescriptive period In a third supplemental and amending petition filed on anuary 10 2007 Roba sought damages and attorney fees from the defendants in connection with their interference with Roba use of an alleged s way of right dating back to 1974 which provided access to Idle Acres Lane Roba alleged The owners are aware of the right and in actual fact are succession in way of using the right up to the line of the Roba Inc property but they have way of consciously and consistently denied access to this servitude which was already established in title and part of the acquisition by Roba Inc from the Courtneys to the detriment and damages to Roba owners of the property the Halls property to the highway available successive sales of said property Inc Plaintiff Roba Inc asks the Court to order the to open the gate and make the access from the lake to Roba Inc as was included in their sale and the Roba Inc holds the Courtneys the Radeckers the Halls and the Notos responsible for any and all damages attorney sfees in the premises and lack of access and convenience to be shown at the trial on the merits of this case A title opinion rendered for the Hall sale in 2004 reflects the right Radecker way of Roba Inc was deliberately deceived by the Courtneys in the exclusion of the established way of right A copy of the opinion rendered is attached as Exhibit B 5 The decision in Giroir v South Louisiana Medical Center 475 So 2d 1040 La 1985 allowed the relation back of an amended petition to allow the addition of the claims of children to that of their father the original plaintiff in a wrongful death suit and developed a four step analysis with respect to weighing whether an amended claim relates back to the filing of an original petition One of the factors to be considered is whether the defendant is thereby prejudiced in preparing or conducting his defense Certainly in the present litigation a defendant would be less concerned with pressing forward toward a resolution which would amount solely to the existence nature and extent of a servitude of passage than with a potential damage claim which would arguably continue to increase in size with the passage of time This seems particularly true where the amendment claiming delictual damages is not brought until eight years from the filing of the original petition For all these reasons this Court concludes that the amendment should not relate back to the original filing and would therefore be prescribed As to the claim that the delictual claim is an ongoing claim or continuous tort the court in Crump v Sabine River Authoritv 1998 2326 La 6 737 So 2d 720 held that atort required that 99 29 continuous the operating cause of the injury be continuous or repetitive A single act giving rise to ongoing damages did not amount to a continuous tort based on the fact that damages continued to accrue In Thomas v State Employees Group Benefits Program 2005 0392 La App i Cir 3 06 24 934 So 2d 753 he t Court stated that to qualify as a continuing tort there had to be both continuous action and continuous damage If the operating cause of the damage is discontinuous in nature even if the damage is continuous the continuing tort theory is inapplicable In the present case any delictual claim is based upon damages for s Plaintiff lack of access to its property While conceivably damages are ongoing the claim is based on the alleged refusal to provide the servitude of access a single event At the very least as to the claim against exceptors their involvement with the properly apparently ceased in 2004 at which time they were no longer able to refuse to grant the servitude as no longer owning the property over which the servitude would traverse Where a damage claim was not brought until over two years later prescription has occurred Accordingly the trial court sustained the Courtneys exception raising the objection of prescription and dismissed all claims against them for damages and attorney fees under C LSA arts 1997 and 1998 alleged in Roba second supplemental and amending s 6 petition A motion for new trial by Roba was denied Roba appealed contending the trial court erred in sustaining the Courtneys exception and dismissing its claim for damages and attorney fees Discussion Liberative prescription is a mode of barring actions as a result of inaction for a period of time C LSA art 3447 Generally the burden of proving that a cause of action has prescribed rests with the party pleading prescription however when the plaintiffs petition shows on its face that the prescriptive period has run and the plaintiff contends there is a suspension or interruption of prescription the burden is on the plaintiff to prove suspension or interruption St Romain v Luker 00 La App lst 1366 Cir il 804 So 85 88 writ denied 02 La 4 813 So 1083 01 9 2d 0336 02 19 2d Moreover the ordinary rule of the burden of proof is that one who claims the benefit of an exception to the general law must show he comes within the exception Houston General Ins Co v Commercial Union Ins Co 612 So 787 789 La App ist Cir 2d 1992 writ denied 614 So 82 La 1993 2d s Roba claim for damages was first asserted on February 22 2006 by way of its second supplemental and amending petition Following its 2001 sale to the Notos the Courtneys no longer had ownership of the property affected by the contested right of way sought by Roba Thus any claim against the Courtneys for interference with s Roba use of the alleged east right would have prescribed prior to the west of way The Honorable Elizabeth P Wolfe presided at the hearing on the motion for new trial Since the trial court rendered a partial judgment as to less than all of the claims demands issues or theories relative to the Courtneys the judgment did not constitute a final judgment To be appealable such a judgment had to be designated as a final judgment by the trial court after an express determination that there is no just reason for delay See LSA art 1915 Pursuant to a rule P C 1 B to show cause issued by this court the Courtneys obtained the needed designation and the record has been supplemented accordingly Therefore the judgment is properly before us on appeal 1z Roba has separately appealed a judgment denying its motion for preliminary injunction sustaining an exception filed by the Halls raising the objedion of prescription regarding a 1974 servitude asserted in a third supplemental and amending petition that was filed on January 10 2007 and dismissing Roba s claims relating to the 1974 servitude See Roba Inc v Courtnev 09 La App lst Cir 8 0509 10 1D 3d So 13 An additional claim for damages associated with a 1974 servitude was set forth in Roba 2007 third s supplementai and amending petition 7 2006 filing To the extent that Roba petition as supplemented and amended a s second time in 2006 sets forth a claim for delictual damages against the Courtneys we find no error in the trial court decision to dismiss such a claim s However Roba original petition sought enforcement of the 1988 agreement s The prescriptive period applicable to an action alleging breach of contract is ten years Allen v Carollo 95 La App lst Cir 4 674 So 283 286 see LSA 1840 96 2d C art 3499 The ten prescriptive period for contracts does not begin to run until the year date the contract is allegedly breached Dauterive Contractors Inc v Landry and Watkins 01 La App 3rd Cir 3 811 So 1242 1249 see Loewer v 1112 02 13 2d Texas Gas Transmission Co 615 F Supp 1 2 W 1984 La D In this case the petition as supplemented and amended does not indicate the date on which the agreement was allegedly breached nor does the Agreement for Right of Way by its terms specify a term for performance The absence of a stipulated term for performance does not preclude the perfection of a valid obligation Caston v Woman s Hospital Foundation Inc 262 So 62 64 La App lst Cir writ refused 262 La 2d 1087 266 So 220 1972 see LSA art 1778 When no term for performance 2d C has been stipulated the inference will be supplied that the parties intended the obligation to be undertaken within a reasonable time What constitutes a reasonable time must be determined by the circumstances of each case Perrin v Hellback 296 2d So 342 344 La App 4th Cir writ denied 300 So 184 La 1974 2d Liberative prescription commences from the date of an obligor breach of his s obligation As previously noted the nature and validity of the 1988 agreement for a way of right and the resulting obligations have not yet been challenged by the parties or addressed by the trial court However with respect to the initial action for specific 14 Delictual actions are subject to a liberative prescription of one year which runs from the date injury or damage is sustained C LSA art 3492 The nature and validity of this agreement and resulting obligations have not been challenged by the parties or addressed by the trial court Therefore these issues are not properly before us on appeal For purposes of this appeal we will assume that the Agreement for Right of Way constitutes an otherwise valid contract Nonetheless we note that the establishment of a predial servitude by juridical act is an alienation of a part of the property hence it is subject to the requirements governing the validity and effect of acts of disposition LSA art 708 Revision Comments comment d C 1977 8 pertormance this court concludes that such an action brought within 10 years of the execution of the agreement for a right would not have been barred by way of prescription Cf Loewer 615 F Supp at 2 Upon an obligor failure to perform an obligation to deliver a thing or not to do s an act or to execute an instrument the court shall grant specific performance plus damages for delay if the obligee so demands C LSA art 1986 If specific performance is impracticable the court may allow damages to the obligee Id Upon a failure to perform an obligation that has another object such as an obligation to do the granting of specific performance is at the discretion of the court Id s Roba claim for damages in its 2006 second supplemental and amending petition was premised on a breach of the Courtneys alleged obligation to perform in connection witn the 1988 agreement Damages for failure to perform a conventional obligation are measured by the loss sustained by the obligee and the profit of which he has been deprived See LSA C art 1995 Notably in its second supplemental amending petition Roba specifically sought damages pursuant to LSA arts 1997 and 1998 C Louisiana Civil Code article 1997 provides for the recovery of damages from an obligor that is in bad faith and C LSA art 1998 authorizes the recovery of nonpecuniary loss An obligor in bad faith is liable for all the damages foreseeable or not that are a direct consequence of his failure to perform C LSA art 1997 By bad faith is not An obligor is liable for the damages caused by his failure to perform a conventional obligation A failure to perform results from nonperformance defective pertormance or delay in performance LSA art C 1994 An award of such damages is governed by LSA arts 1995 though 2012 See Lombardo v C Deshotel 94 La 11 647 So 1086 1090 see also Bourgeois v Dunn O1 La App 1172 94 30 2d 1185 lst Cir 6 822 So 708 711 02 21 2d See Lombardo 647 So at 1090 Charter School of Pine Grove Inc v St Helena Parish School Bd 2d 2238 07 La App lst Cir 2 9 So 209 222 09 19 3d i8 As we noted in footnote 15 the nature and validity of the 1988 agreement and resulting obligations have not yet been addressed by the trial court Therefore we are uncertain of the Courtneys ultimate obligation in this matter 19 The owner of the servient estate is not required to do anything His obligation is to abstain from doing something on his estate or to permit something to be done on it He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate LSA art 651 The owner of the servient estate may bind himself by a personal obligation to C perform certain affirmative duties in connection with a predial servitude These obiigations may be heritable but they are not transferred to successors by particular title without express stipulation to that effect C LSA art 651 Revised Comments comment c 1977 9 meant the mere breach of faith in not complying with a contract but a designed breach of it from some motive of interest or ill will Williams v Coe 417 So 426 430 La 2d App lst Cir 1982 An obligor is in bad faith if he intentionally and maliciously fails to perform his obligation LSA art 1997 Revision Comments comments b C 1984 c its Damages for nonpecuniary loss may be recovered when the contract because of nature is intended to gratify a nonpecuniary interest and because of the circumstances surrounding the formation or the nonperformance of the contract the obligor knew or should have known that his failure to perform would cause that kind of loss LSA art 1998 Regardless of the nature of the contract these damages C may be recovered also when the obligor intended through his failure to perform to aggrieve the feelings of the obligee Id A contract made for the gratification of a nonpecuniary interest means one intended to satisfy an interest of a spiritual order such as a contract to create a work of art or a contract to conduct scientific research or a contract involving matters of sentimental value C LSA art 1998 Revision 1984 Comments comment c Although we find that the allegations in Roba original petition for specific s performance were sufficient to notify the Courtneys of Roba possible claim for s damages under LSA art 1986 in connection with their alleged nonperformance of C the 1988 agreement we note the absence of any allegation in that petition that the Courtneys intentionally and maliciously failed to perform their obligation or that the 1988 agreement was intended to gratify a nonpecuniary interest In the absence of such allegations we are unable to find that the allegations of Roba 1998 petition were s sufficient to notify the Courtneys of Roba possible claims for the types of additional s damages authorized by LSA arts 1997 and 1998 Accordingly we find that the C 2006 amendment setting forth a claim for damages and attorney fees under LSA C arts 1997 and 1998 does not relate back to the date of filing of the original pleading See Womack v Custom Homes and Renovations 02 La App 4th Cir 6 820 So 1196 0193 02 5 2d 1203 writ denied 02 La 9 824 So 1165 1871 02 13 2d Notably any claim that Roba may have asserted in its 2006 supplemental and amending petition for other types of monetary damages allowed by LSA art 1986 was not affected by the judgment C 10 See LSA art 1153 P C Decree For the foregoing reasons we affirm the judgment of the trial court This matter is remanded for further proceedings consistent with this opinion appeal are assessed to Roba Inc AFFIRMED AND REMANDED 11 The costs of this
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