Mike Spohrer VS John Cooper Fore and Colt Fore

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 1295 MIKE SPOHRER i VERSUS JOHN COOPER FORE AND COLT FORE Judgment Rendered June 11 2010 Appealed from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana Case No 116082 The Honorable M Zorraine Waguespack Judge Presiding Counsel for DefendantsAppellants John Cooper Fore and Colt Fore William S Dykes Montpelier Louisiana Alexis A St Amant Counsel for PlaintiffAppellee Mike Spohrer Baton Rouge Louisiana EFORE DOWNING GAIDRY AND McCLENDON JJ 9 C ccv GAIDRY J The lessee of immovable property and the owner of adjacent immovable property appeal a judgment granting injunctive relief to the lessor and defining the location of the leased property subject to the injunction For the following reasons we amend the trial court judgment s in part and affirm it as amended FACTUAL AND PROCEDURAL HISTORY The plaintiff Mike Spohrer owned certain rural property along the Amite River in Livingston Parish He entered into negotiations with John Cooper Fore regarding the sale of a portion of the property and the lease of a right of way upon which a boulevard and cul desac near the river would be situated On September 7 2006 plaintiff leased the proposed right of way to John Cooper Fore for ten years with an option to renew for another ten years The right of way was described as being 65 feet in width with the lessee being responsible for maintenance of an additional 25 foot area to the north of the right of way On September 15 2006 plaintiff sold the discussed portion of his immovable property to John Cooper Fore son s Colt Fore On October 21 2006 plaintiff sent a letter to defendants advising them that their activities had encroached beyond the lease boundaries and that they performed certain work that had damaged plaintiffs property The leased property was subsequently surveyed at plaintiff request and its s boundaries were designated on the survey by location of existing found pipe markers and placement of additional set pipe markers Disputes soon arose as to the location extent and manner of use of the leased property On January 16 2007 an attorney representing John Cooper Fore wrote to plaintiff advising him that Mr Fore disagreed with plaintiffs interpretation 2 of the boundaries and location of the leased property and that it was Mr s Fore position that an existing access road Hancock Lane was situated to the south ofthe leased property I On May 22 2007 John Cooper Fore entered into a separate Lease Agreement with John Hancock acting for himself and others for a non exclusive right of passage over and across Hancock Lane to the east side of the Amite River On May 24 2007 plaintiff instituted this action by filing a petition for injunction and damages naming John Cooper Fore and Colt Fore as defendants Plaintiff alleged that the descriptions of the property in the sale and the lease were supplied by defendants and were inaccurate and prayed for declaratory judgment correcting those descriptions Plaintiff also alleged that defendants were using the leased property for purposes other than those for which it was leased and that they were also trespassing on adjoining property owned by plaintiff Plaintiff sought a preliminary injunction to enjoin the Fores from using the leased property other than as a right of way from using the additional maintained area for unauthorized purposes and from trespassing on plaintiff other property s The hearing on plaintiff request for the preliminary injunction was s held on August 6 2007 The trial court ruled in favor of plaintiff and signed a judgment on September 19 2007 preliminarily enjoining John Cooper Fore from building any buildings planting any vegetation and doing any electrical or plumbing work on the leased right of way The preliminary injunction further prohibited John Cooper Fore and anyone acting on his behalf from parking on the additional maintained area 1 The evidence showed that Hancock Lane is situated to the north of another portion of property immediately north of the property sold to Colt Fore and that plaintiff claimed ownership of all property at issue north of the property sold to Colt Fore 3 On November 7 2007 defendants filed their answer to plaintiff s petition incorporating a general denial of all allegations a peremptory exception of no right of action and a dilatory exception of improper cumulation of actions Following a pretrial conference the case was set for trial during the week of July 7 2008 Trial took place on July 11 2008 and at the conclusion of the trial the trial court took the matter under advisement for decision On August 4 2008 the trial court signed its judgment and also issued its written reasons for judgment In the judgment it declared that both the cash sale and the lease of the right of way were valid It further ordered John Cooper Fore to cease and desist any activity on Mr Spohrer land s that violates the lease and granted plaintiff a permanent injunction enjoining John Cooper Fore from any activity that violates the lease Plaintiff filed a motion for new trial on August 13 2008 noting that although the trial court correctly specified the dimensions of the leased right of way in its reasons for judgment its judgment failed to grant the declaratory relief sought relating to the location of the right of way based upon its description and the evidence presented Plaintiff accordingly moved for a new trial to clarify where the leased property begins and ends The trial court heard the motion for new trial on November 3 2008 and after presentation of brief argument on the merits of the factual issue for which clarification was sought ruled in favor of plaintiff The trial court s amended judgment granting a new trial and amending the original judgment was signed on December 1 2008 Defendants now appeal 2 Although the peremptory exception of no right of action was originally set for hearing on January 7 2008 the hearing was continued without date and never reset prior to the trial on the merits 4 ASSIGNMENTS OF ERROR Defendants contend that the trial court erred in the following respects 1 The trial court erred by amending the substance of the judgment at the hearing on the motion for a new trial without setting a date for the new trial 2 The trial court erred by amending the judgment to include property not proven to be owned by the lessor Mr Spohrer when that property was already leased by lessee John Cooper Fore from a third party owner of a servitude DISCUSSION Prematurity ofAmended Judgment Louisiana Code of Civil Procedure article 1971 authorizes the granting of a new trial for reargument only A motion for a new trial shall set forth the grounds upon which it is based La C art 1975 When a P new trial is granted for reargument only no evidence shall be adduced La P C art 1978 s Plaintiff motion for new trial sought a new trial to modify the judgment to clarify the court ruling and to clarify where the s leased property begins and ends That issue was one of the major factual disputes between the parties It is quite apparent from the motion and s plaintiff supporting memorandum that plaintiff sought a new trial for purposes of reargument only based upon the evidence introduced at the original trial Defendants did not submit an opposition memorandum prior to the hearing on the motion nor during the time that the trial court had the matter under advisement At the hearing on the motion plaintiff counsel advised the trial court s that he expected about five minutes of arguments Brief argument relating to the merits of the issue rather than the procedural granting of a new trial was then presented by counsel for both parties The trial court then pronounced its decision on the merits and requested that plaintiff counsel s 5 prepare an amended judgment At no time during the hearing did defendants counsel object to the trial court consideration of the merits or s to its ruling on the grounds of prematurity and the right to a separate hearing nor did he object on the grounds that he was not allowed to present additional evidence or attempt to make an offer of proof No additional hearing is required when the new trial is granted for reargument only and when the new arguments on the merits have in fact been presented at the hearing on the motion for new trial See Heritage Worldwide Inc v Jimmy Swaggart Ministries 95 0484 p 3 La App 1 st Cir 11 665 So 523 526 writ denied 960415 La 3 670 95 16 2d 96 29 2d So 1233 and Eagle Pacific Ins Co v Sunbelt Innovative Plastics Inc 05 270 p 3 La App 5th Cir 11 917 So 1178 1180 Under 05 29 2d such circumstances the trial court is only required to reconsider its previous judgment Heritage Worldwide 95 0484 at pp 3 4 665 So at 526 2d Defendant has made no showing that he was deprived of any rights to present argument or evidence or that he was prejudiced by the trial court s hearing reargument before actually granting the motion for new trial therefore there is no reversible error See Russell v McDonald sCorp 576 2d So 1213 1217 La App 5th Cir 1991 To require the fixing of another hearing under such circumstances would be superfluous and would not promote judicial economy In light of the foregoing analysis defendant first assignment of error s has no merit The Location and Ownership of the Leased Property and Access Road The lease of the right of way was an act under private signature and its language is somewhat inartfully drafted pertinent part as follows The document reads in Lease Agreement for road and fence right of wav This lease is made on this day the 7th day of September 2006 between Mike Sphorer sic here in after sic referred to here in after sic referred as LESSOR and John Fore to as LESSEE Right of way to begin 377 feet North of Section line 46 and Section 50 along power line road and corner at 1 h inch pipe thence run 65 feet wide North 76 10 W for 350 feet and cul de sac just before the river then run back 65 feet wide to the 1 pipe on power line road LESSOR agrees to lease a right of way for a road that will allow a boulevard and a fence to be built on the north side of this leased property Not only will this lease be for the road and the fence but LESSEE will be in charge of the maintains sic of the road the fence and 25 feet on the north side of the fence This will include the grass cutting the ornamental plants maintains sic and the over all sic maintains sic of the area with in sic 25 feet of the right of ways sic north boundary Lease terms sic is a 10 year sic with 10 year option lease payment in the amount of 600 per year due on Sept 7 of 00 each year LESSE sic will build and install two steel gates on the boulevard where it intersects to sic power line road This lease is agreed to by the LESSOR and the LESSEE The trial court found that the property intended to be leased for the right of way was bounded on the south by the property sold to Colt Fore and included Hancock Lane based primarily upon the 1 z inch iron pipe boundary marker which the trial court expressly found to designate both the northeast corner of the property sold to Colt Fore and the southeast corner of the leased right of way The trial court obviously found that the 1 2 pipe on power line road sic referred to in the lease of the right of way was the same existing 1 1 Ishown on the professional survey as delineating the 2 P southeast corner of the leased right of way That finding would place Hancock Lane within the geographic area of the lease The nature of the property interest of the lessors of the right of passage over Hancock Lane is not apparent from the record 7 Although the parties seem to concede in their briefs that the lessors of the right of passage over Hampton Lane themselves possessed only a servitude of passage over that property we agree with plaintiff that the nature of that property interest in Hampton Lane is ultimately irrelevant to our determination of the correctness of the trial court amended judgment s As emphasized by plaintiff La C art 2674 provides that a lease of a thing that does not belong to the lessor may nevertheless be binding on the parties The record shows no pleading or evidence by John Cooper Fore of any disturbance in his exercise of his right of passage over Hampton Lane A lessee may not refuse to pay rent or carry out his other obligations under the lease solely because of the lessor claimed or real lack of ownership as long as the s lessor warrants and protects the lessee possession of the leased property s from disturbance See La C art 2674 Revision Comments 2004 c and La C arts 2682 and 2700 The record on appeal contains no transcript of the trial proceedings upon which the original judgment was based Louisiana Code of Civil Procedure article 2131 sets out the mandatory procedure to follow in the absence of a trial transcript If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts and in cases of disagreement as to this narrative or of refusal to join in it at any time prior to the lodging of the record in the appellate court the judge shall make a written narrative of the facts which shall be conclusive Where there is no written transcript of testimony the burden rests upon the appellant to comply with the provisions of La C art 2131 and P furnish as part of the appellate record either an agreed stipulation of fact or in the absence of such agreement a narrative of facts by the trial court Webre v Heard 207 So 880 881 82 La App 1st Cir 1968 See also 2d I DeLaneuville v Duplessis 385 So 385 386 La App 1st Cir 1980 2d The obligation of strict compliance with the provisions of La C P art 2131 is imposed upon the appellant as part of his obligation to lodge a complete record with the appellate court Aube v American Insurance Co 254 So 654 658 La App 4th Cir 1971 writ denied 260 La 411 256 2d 2d So 292 La 1972 Here as was held in Aube t failure of the he appellant to perfect his record by furnishing a proper narrative of testimony leaves for this court consideration only those facts contained in the trial s s judge written reasons for judgment Id See also Rosen v Shingleur 47 2d So 141 144 La App 1st Cir 1950 Factual determinations are subject to review for manifest error Ferrell v Fireman Fund Insurance Co 94 1252 pp 3 4 La 2 s 95 20 650 So 742 745 The intent behind a contract is an issue of fact that is to 2d be inferred from all of the surrounding circumstances including the conduct of the parties before and after the formation of the contract Naquin v La Power Light Co 05 2103 p 12 La App 1st Cir 9 943 So 06 15 2d 1156 1164 writ denied 062476 La 12 945 So 691 06 15 2d Where factual findings are pertinent to the interpretation of a contract those factual findings are not to be disturbed unless manifest error is shown Bonvillain Builders LLC v Gentile 08 1994 p 5 La App 1st Cir 10 29 09 30 3d So 625 629 writ denied 10 0059 La 3 29 So 1264 10 26 3d The trial court factual findings related to the boundaries and location s of the leased right of way are supported by the preponderance of the documentary evidence in the record including the act of sale to Colt Fore the lease of the right of way the handdrawn nonscale diagrams and the professional survey Additionally it must be presumed that the trial court s judgment was further supported by competent testimony in the absence of the transcript of the witnesses testimony at trial Under these circumstances we cannot conclude that the trial court amended judgment s was manifestly erroneous or clearly wrong Defendants second assignment of error has no merit Amendment of the Judgment Injunctive Relief s Louisiana Code of Civil Procedure article 3605 requires that a n order granting shall describe in reasonable detail a final injunction and not by mere reference to the petition and other documents the act or acts sought to be restrained Emphasis added Fern Creek Owners n Ass Inc v City ofMandeville 08 1694 p 16 La App 1st Cir 6 09 30 21 So 369 380 See also Miller v Knorr 553 So 1043 La App 4th 3d 2d Cir 1989 The third and fourth decretal paragraphs of the original judgment which merely enjoin any activity that violates the lease are impermissibly vague and overbroad based upon the foregoing standard and should describe the enjoined activities with more detail limited to those violations of the lease that were proven at trial Pursuant to the authority granted us under La C art 2164 to P render any judgment which is just legal and proper upon the record on appeal we will accordingly amend those paragraphs of the judgment to limit the permanent injunction to those violations described in the trial s court written reasons for judgment to provide the detail required by La P C art 3605 in conformity with the intent and tenor ofthose reasons the judgment and the evidence See Fern Creek Owners Assn 08 1694 at p 16 21 So at 380 3d DECREE The trial court judgment is amended in part with respect to the s injunctive relief granted as follows 10 IT IS ORDERED ADJUDGED AND DECREED that a permanent injunction issue herein and that the defendant John Cooper Fore is permanently enjoined from engaging in the following activity violating the terms of the Lease Agreement for Road and Fence Right of Way existing between the defendant and the plaintiff Mike Spohrer dated September 7 2006 1 parking cotton trailers or other vehicles on the leased right of way and additional maintenance area 2 installing electrical outlets lights or plumbing on the leased right of way and additional maintenance area and 3 constructing any sheds or other buildings on the leased right of way and additional maintenance area As amended and in all other respects the judgment of the trial court is affirmed All costs of this appeal are assessed to the defendants appellants John Cooper Fore and Colt Fore AMENDED IN PART AND AS AMENDED AFFIRMED 11 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT G 2009 CA 1295 MIKE SPOHRER VERSUS JOHN COOPER FORE AND COLT FORE McCLENDON J agrees in part and dissents in part To the extent that the majority finds the ownership of the leased property irrelevant I respectfully dissent Justice requires a remand to determine the ownership of Hancock Lane or at the very least the rights available under the Hancock lease Only then can it be determined whether the lessee peaceful s possession has been interrupted In all other respects I agree with the majority

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