Vincent and Gayle Distefano VS Bruce and Jill Wilkerson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1012 G VINCENT AND GAYLE DISTEFANO VERSUS BRUCE AND JILL WILKERSON Judgment Rendered JUN 1 9 2013 x Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 596176 The Honorable Wilson E Fields Judge Presiding Larry Counsel for Plaintiff Appellants M Roedel Ross A Dooley Benjamin R Hunter Baton Rouge Louisiana Vincent and Gayle Distefano Douglas J Cochran Baton Rouge Louisiana Counsel for Defendants Appellees Bruce and Jill Wilkerson Donna Garbarino Schwab Baton Rouge Louisiana x ieie xxx k y BEFORE GUIDRY WELCH HIGGINBOTHAM CRAIN AND o THERIOT JJ o C Ir 7 c i t v ie G r @ L THERIOT J This is an appeal of the Appellees exception of prescription and dismissal of the Appellants petition with prejudiee by the Nineteenth Judicial District Court For the folTowing reasons we affirm in part reverse in part and remand FACTS AND PROCEDURAL HISTORY On July 7 1994 Bruce and Jill Wilkerson Defendants and Appellees in this matter purchased lot 108 in the Walden subdivision of Baton Rouge Lot 108 is the residence of the Wilkersons and throughout their ownership various shrubberies fountains and fences were planted and erected on the property Most pertinent to this case are the bushes fountains and fence facing lot 107 but erected or planted within the confines of lot 108 On January 16 2006 Vincent and GaY le Distefano Plaintiffs and Appellants in this matter purchased lot 107 of the Walden subdivision which is adjacent to lot 108 owned by the Wilkersons Lot 107 is the residence of the Distefanos making the Distefanos and Wilkersons next door neighbors It is undisputed by the parties that lots 1C17 and 108 are subject to the Declaration of Rights Restricrions Affirmative Obligations and Conditions for the Walden A Subdivision Walden Restrictions According to Rule c 6 3 of th Walden Restrictions The Architectural Control Committee may allow construction on within 2 feet of the side lines of any lot or lots hereinafter called zero lot lines Where a zero lot line is approved for a particular lot there may be no zero lot line for the adjoining lot as to the same lot line and a 7 foot servitude is automatically reserved along the boundary line of the lot adjacent to and opposite the approved zero lot line far the construction maintenance and repair of the wall and dwelling on the or In their petition the Distefanos claim that the permanent iron fence built by the Wilkersons encroaches onto the Distefanos property but at no time was evidence of this claim introduced to the trial court nor has it been made part of the record in this appeal 2 adjoining lot The use of this servitude by an adjoining lot owner shall not exceed a reasonable period of time during construction nor shall it exceed a period of thirty 30 days each year for essential maintenance Any shrubbery or planting in the servitude area that is removed or damaged by the adjoining lot owner during the constzuction maintenance or repair of his wall and dwelling unit shall be repaired or replaced at his or expense The Distefanos claim that the rzght exterior wall of their residence was constructed with the Architectural Control Committee approval within two s feet of the property line adjacent to the Wilkerson property This by virtue of Rule 3 created a zero lot line on lot 107 and a seven servitude c 6 foot for maintenance on the opposite side on lot 108 allowing the Distefanos maintenance of their property At the time of this appeal the Wilkersons bushes fountain and fence already existed within this seven foot space which Rule c 6 3 calls a servitude The Distefanos allege that their ancestars in title utilized the maintenance area to clean the home gutters s which run along the zero lot line bordering lot 108 Both the Distefanos and their ancestars in title would prop a ladder against the house to accomplish this task and the ladder would extend into this maintenance area Since purchasing their home the Distefanos have utilized the maintenance area to perform other types of work on their home without disturbance from the Wilkersons The Distefanos complain that the Wilkersons have hindered the use of the maintenance area by planting shrubs and bushes as well as by placing a fountain and latticework in the area In Jill Wilkerson deposition she s claimed that the latticework fountain and some landscaping were installed in the maintenance area in November of 2008 However the Distefanos concede that these plants and structures have not made maintenance of their home impossible Additionally the Distefanos complain of the Wilkersons 3 intent to construct a wall eight high and approximately two feet from feet the zero lot line This wa11 the Distefanos claim wi11 effectively prevent any maintenance of their property once it is constructed because it will cut off the maintenance area from use as well as obstruct the view As of the date of this appeal the Wilkersons have not begun construction of this wall and since the Distefanos did not assert a claim in their petition concerning this wall it is not made part of this appeal On October 29 2010 the Distefanos filed a petition for declaratory judgment possessory action injunctive relief and damages against the Wilkersons for their prevention of use of what the Distefanos call the maintenance servitude disruption of passage access and view The Distefanos petitioned the court to order the Wilkersons to remove their bushes fountain fence and other objects from this area facing the Distefano property The Wilkersons answered and filed a reconventional demand also asking for a declaratory judgment and damages On 7anuary 3 2012 the Wilkersons filed an exception of prescription and no cause right of action These exceptions alleged that the objects no and structures complained of by the Distefanos had been in place and in obvious view for more than two years before the Distefanos filed suit and pursuant to Louisiana Civil Code article 781 the prescriptive period to bring an action against a building restriction violation is two years from the commencement of a noticeable violation The Wilkersons point out that their metal fence and bushes have been within the maintenance area for well over two years before the Distefanos filed suit On January 27 2012 the Distafanos filed a motion for summary judgment which was set on the same date as the hearing on the Wilkersons exceptions On February 13 2012 the trial court declined to hear the 4 Distefanos motion for summary judgment and on March 5 2012 granted the Wilkersons exception of prescription and declared the other exceptions moot The Distefanos petition was thereby dismissed with prejudice On March 19 2012 the Distafanos fthis appeal led ASSIGNMENTS OF ERROR The Distefanos first assign as error the trial court granting of the s Wilkersons exception of prescription They secondly assign as error the trial court dismissal of their claims with preju specifically their claim s lice of having acquired a servitude of view through the windows on the right exterior side of their home by virtue of the Walden Restrictions STANDARD OF REVIEW In reviewing a peremptory exception of prescription an appellate court will review the entire record to determine whether the trial court s finding of fact was manifestly erroneous Parker v B K Const Co Inc 1465 2006 p 2 App 4 Cir 6962 So 484 485 Babineaux v La 07 27 2d State ex rel Dept of Transp and Development 20 p 3 App 1 2649 04 La Cir 12 927 So 1121 1123 If the i reasonable in light OS 22 2d mdings are of the recard xeviewed in its entirety an ppellate court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed evidence differently Oracle Oil LLC v EPI Consultants Div of Cudd Pressure Control Inc 2011 p 4 App 1 Cir 0151 La 11 14 9 77 5o 64 67 writ denied 2011 La ll23 76 So 3d 2248 l 11 3d 1157 Further the standard controlling the review of a peremptory 2 The trial court rendered and signed two separate judgments in chambers on the same date In the Judgment on Defendants Exceptions of Prescription No Cause of Action and No Right of Action the exception of prescription was granted and the other exceptions were declared moot In the Judgment on Exception of Prescription and No Right Cause of Action judgment was rendered in favor of the Wilkersons and the Distefanos petition was dismissed with prejudice The cumulative resulY of the two judgments is that the exception of prescription was granted the other exceptions were declared moot and the Distefanos petiriton was dismissed with prejudice 5 exception of prescription requires that this court strictly construe the statutes against prescription and in favor of the claun that is said to be extinguished Coston v Seo 2012 p 8 App 4 Cir 8 99 So 83 88 0216 La 12 15 3d DISCLTSSION Inherent in the exceptlon of prescription is the question of whether the foot seven maintenance servitude is in fact a servitiude or a building restriction Although building restrictions and predial servitudes are alike in that they create real rights they differ in three respects building restrictions may be imposed in the absence of a dominant estate predial servitudes may not building restrictions may impose affirmative duties that are reasonable and necessary for the maintenance of the general plan predial servitudes may not building restrictions may exclude performance of certain juridical acts predial servitudes may not Napolitano v State ex rel Div ofAdmin 2011 1286 p 13 La App 4 Cir 3 88 So3d 1183 1191 writ denied 12j 21 0901 2012 La 6 90 So 1063 12 15 3d A predial servitude is a charge on a servient estate for the benefit of a dominant estate La art 646 It is inseparable from the dominant and C servient estates and the charge passes with the ownership thereof La C art 650 The use and extent of such servitudes are regulated by the title by which they are created La art 697 The establishment of a predial C servitude by title is an alienation of a part of the property La art 708 C Therefore for the maintenance servitude to be a servitude in fact benefitting the estate of the Distefanos there must be some establishment of the servitude in one or both of the title docurnents of the Distefanos and or the Wilkersons 6 The January 16 2006 sale of lot 107 to the Distefanos contains the following provision after the property description This act is made and accepted subject to the following 1 All previously recorded building restrictions servitudes building setback lines and oil gas and mineral reservations conveyances servitudes and leases of record The Wilkersons July 7 1994 tztle Te lot 1Q8 refers ta the official Walden subdivision map in the property description The map was recorded in the Parish of East Baton Rou and the description of lot 108 ends with e the following l ai S subdivision said lot having such measurements and dimensions and being subject to such servitudes as shown on the said map Subject to all previously recorded building restrictions servitudes building setback lines and oil gas and mineral reservations conveyances servitudes and leases of recard Both titles contain common language about the properties being subject to any existing servitudes or building restrictions of record but the Wilkerson title goes further to specify any servitudes contained in the recorded Walden subdivision map Rule 4 of the Walden Restrictions 1 refers to the same map as evidence of existing servitudes in the subdivision dealing with drainage sidewalks axid utilities Tha map which forms part of this record contains no specific designation of a servitude between lots 107 and 108 A plain reading of the Ianguage in the titles supra regarding servitudes does not establish any new servitudes but merely calls far the continuance of any servitudes that may have been in existence at the time the property was transferred The intent of the proprietor to create a servitude must clearly appear on the face of the document RCC Properties L v C Wenstar Properties L 40 p 6 App 2 Cir 6 930 So P 996 La 06 5 2d 1233 1237 We find from the record that no predial servitudes whether 7 i being of passage support view or any other form contemplated by the Louisiana Civil Code were or are in existence between lots 107 and 108 during or prior to their ownership by the Distefanos and the Wilkersons Louisiana jurisprudence has firmly established that building s restriction constitute real rights only in the framework of subdi ision planning Ezell v Yaughn 496 So 534 53S La App 1 Cir 1986 The 2d restrictions must be imposed at least by implication in favor of lots in the subdivision in accordance with a general development plan Id If the restrictions are imposed on individual lots without regard to a general development plan they may constitute a veritable predial servitude provided that the requirements for the creation of predial servitudes are met Id The maintenance servitude at issue here was established by the Walden Restrictions which ivere imposed on the Walden Subdivision Building restrictions are regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions La C art 777 Comment c to Article 777 states that restrictions imposed by the subdivider prior to the creation of a subdivision do not qualify as predial servitudes because of the requirement of Article 646 for two estates to be in existence The Walden Restrictions were recorded in the Parish of East Baton Rouge on April 1 1975 Lot 108 was acquired by the Wilkersons nineteen yaars later and the Distefanos acquired lot 107 tliirty voyears afterward Again there is no evidence of a t servitude existing between the two lots at any time The maintenance servitude clearly fits the first two aspects of building restrictions provided by Napolitano supra and the third aspect dealing with juridical acts is not applicable to the present case 8 Building restrictions are subject to a two prescriptive period and year predial servitudes are subject to a ten prescriptive period Diefenthal v year Longue Vue Management Corp 561 So 44 54 La 1990 2d Since it is clear the maintenance servitude is actually a building restriction we turn now to the Civil Code article governing the termination of building restrictions to determine if the Wilkersons exception of prescription was properly granted Louisiana Civil Code article 781 states Art 781 Termination liberative prescription No action for injunction or far damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation After the lapse of this period the immovable on which the violation occurred is freed of the restriction that has been violated Inirially we note that the record clearly demonstrates through photographs the Wilkersons have bushes and a low fence within seven feet of the Distefano residence The Distefanos filed their petition on October 29 2010 but the record establishes that the objects within the maintenance servitude most specifically the fence were there for over two years prior to the filing of the petition except for the latticework fountain and some landscaping which Jill W testified were installed ira November of ilkerson 2008 As to the objects installed over tvvo years prior the issue then becomes whether any of these objects constitute a noticeable violation I The Distefanos admit in their brief that despite the placement of these structures in the Maintenance Servitude the Distefanos have been able to maintain their residence albeit with some difficulty Rule 3 makes c 6 no specification that the maintenance of one property from the s maintenance servitude must remain easy or convenient the rule simply calls for the establishment of the seven area for the purpose of foot maintenance From the time the Distefanos purchased lot 107 in 2006 they 9 performed maintenance on the side of their home bordering lot 108 whether doing so was difficult or not without filing a petition Even ifthe fence and other structures can be considered noticeable violations they existed for at least two years before the Distefanos i1ed their petition he I trial court therefore did not err or abuse its dascretion in granting the Wilkersons exception of prescription with respect to the present objects installed two years priar to the filing of the Distefano petition As to the latticework fountain and landscaping installed by the Wilkersons in the maintenance servitude in November of 2008 prescription has not run It therefore was manifestly erroneous for the trial court to grant the exception of prescription as to those objects We find that the trial court erred in granting the exception of prescription with respect to these objects Therefore we reverse and remand to the trial court to decide if the latticework fountain and landscaping instalied during November of 2008 violates Rule 3 of the Walden Restrictions c 6 CONCLUSION We find that the seven wide maintenance servitude is not a foot servitude but a building restriction created by the Walden Subdivision Declaration of Rights Restrictians Affirmative Obligations and Conditions Louisiana Civil Code article 781 provides a two prescriptive period year from the time there is a noticeable violation of a building restriction to commence an action and since the Wilkersons existing metal fence bushes and other structures were noticeable for a period longer than two years before the Distefanos filed suit the trial court did not en or abuse its discretion by granting prescription however the exception of prescription This exception of cannot apply to the latticework fountain or landscaping installed by the Wilkersons in the seven wide maintenance foot 10 servitude in November of 2008 Since there is no prescription as to these objects the exceptions of no cause and no right of action are not moot as to them and the Distefanos petition is not dismissed as to them As the trial court has not disposed of the motion for summary judgment we remand for the trial court to determine whether there is any genuine issue of material fact as to whether the installations that fall within the two prescriptive year period violate Rule 3 of the Walden Restrictions c 6 DECREE The ruling of the 19 JDC to grant the exception of prescription in favor of the Appellees Bruce and Jill Willcerson as it pertains to the iron fence and bushes is affirmed as to the latticewark fountain and landscaping installed by the Wilkersons in November of 2008 the ruling of the 19 JDC to grant the exception of prescription in favor of the Appellees Bruce and Jill Wilkerson and to declare moot the exceptions of no cause and no right of action is reversed and remanded for further proceedings consistent with this opinion All costs of this appeal are assessed equally to the Appellants and Appellees AFFIRMED IN PART REVERSED IN PART AND REMANDED i 11 VINCENT AND GAYLE DISTEFANO FIRST CIRCUIT COURT OF APPEAL VER5US STATE OF LOUISIANA 2012CA 1012 BRUCE AND JILL WILKERSON CRAIN J concurs in result I respectfully concur in the result I disagree with the majority sapplication of the law governing prescription and termination of building restrictions and believe Section 3 ofthe restrictive covenants creates a predial servitude 6 The majority concludes that Section 3 creates a building restriction then 6 analyzes each object or construction to determine if it has been in existence for more than two years Addressing the constructed metal fence the majority concludes that the exception of prescription was properly granted because the fence and other structures were noticeable for a period of longer than two years An exception of prescription in a suit to enforce a building restriction can only be granted if the court finds a noticeable violation of the restriction far at least two years La Civ Code art 781 A act is not sufficient it must be noticeable both noticeable and a violation As explained by Professor A Yiannopoulos N An activity conducted on a modest scale may not be noticeable or may not be a violation at all but the same type of activity if expanded may become a noticeable violation 4 La Civ L Treatise Predial Servitudes 197 3d ed See also Woolley v Cinquigranna 188 So 2d 701 La App 4th Cir 1966 s homeowner receipt of goods by truck deliveries at his home for nine years did not violate building restriction and thus did not commence running of prescription on suit to prevent subsequent expansion of business activities two years prior to suit While the majority determines that the fence is noticeable it fails to analyze whether it violates the restrictive covenants 1 To the extent that finding a noticeable violation is implicit in the majority s conclusions the fact that it continued in excess of two years results in the immovable on which the violation occurred being freed of the restriction that has been violated La Civ Code art 781 Consequently ifthe constructed fence is a noticeable violation that has existed for over two years then the land Lot 108 is freed of the restriction and the rights created by the restriction in favor of Lot 107 are extinguished Under this analysis the remand ordered by the majority serves no purpose because the other objects constructed on Lot 108 are no longer governed by the now building restriction extinguished I believe that Section 3 creates a predial servitude A predial servitude is a 6 charge on a servient estate for the benefit of a dominant estate La Civ Code art 646 There must be a benefit to the dominant estate La Civ Code art 647 The benefit need not exist at the time the servitude is created a possible convenience or a future advantage suffices to support a servitude La Civ Code art 647 When the right granted be of a nature to confer an advantage on an estate it is presumed to be a predial servitude La Civ Code art 733 Section 3 describes the encumbrance as 6 servitude athat is created along the boundary line of the lot adjacent to and opposite the approved zero lot line for the construction maintenance and repair of the wall and dwelling on the ar adjoining lot The provision identifies both the dominant estate Lot 107 the lot with a zero lot line and the servient estate Lot 108 the adjacent lot The provision also describes the advantage conferred upon the dominant estate and the types of uses intended for the servitude the construction maintenance and repair of the wa11 or dwelling on the lot with a zero lot line Although the mere use of the label servitude is not necessarily determinative it is entirely consistent with the encumbrance created by Section 3 6 2 The servitude is set forth in the restrictive covenants which are recarded in the public land records of East Baton Rouge Parish and neither party disputes their application to both Lot 107 and Lot 108 The conveyance instruments for both lots provide that the transfers are subject to all previously recorded building restrictions and servitudes Consequently a specific description of the servitude either in the acts of conveyance or in the subdivision plat is not necessary to create the servitude or encumber the lots See La Civ Code art 3338 1 The requirement of Louisiana Civil Code Article 646 that the two estates subject to a predial servitude must belong to different owners is also consistent with Section 3 creating a predial servitude A single owner of two estates may 6 impose a charge on his property that will become a servitude by destination when the property is subsequently sold and divided See La Civil Code art 741 The recordation of the restrictive covenants together with the subsequent sales of Lot 107 and Lot 108 that reference the recorded covenants satisfies the requirement of Article 741 for the creation of a servitude by destination The fact that this servitude is created in a document that also creates building restrictions and other servitudes does not negate Section 3 status as a servitude 6 See Floyd v Swetman 493 So 2d 145 La App 1 Cir 1986 and Moonraker Island Phase III Architectural Committee Inc v Marks Lake Inc 07 La 2479 App 1 Cir 9 2008 WL 4148205 unpublished writ denied 08 La 08 3008 09 20 2 1 So 3d 498 Factually the record establishes that the DiStefanos have exercised the servitude on multiple occasions since their acquisition of Lot 107 in 2006 Therefore the servitude has not prescribed due to nonuse for ten years See La Civ Code art 753 Applying the law of predial servitudes to the subject facts the DiStefanos allege the Wilkersons have undertaken constructions in the servitude area that 3 I interfere with their ability to utilize the servitude for its intended purpose and seek an injunction prohibiting the interference The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude La Civ Code art 748 Injunctive relief is available to a person who is disturbed in the possession of immovable property or of a real right therein La Code of Civ Pro art 2 3663 This relief is available in a suit which is neither a possessory nor a petitory action La Code of Civ Pro art 3663 Official Revision Comment b Accordingly the owner of a dominant estate may obtain injunctive relief against the owner of a servient estate who is diminishing or making more inconvenient the use of the servitude in violation of Louisiana Civil Code article 748 See El Paso Field Service Inc v Minvielle 03 La App 3 Cir 1293 04 3 867 So 2d 120 Neither Article 748 nor Article 3663 set forth a prescriptive period for filing a suit seeking a mandatory injunction to remove completed constructions that are interfering with the use of a servitude In my opinion ten years is the appropriate prescriptive period given the contractual nature of a conventional servitude La Civ Code art 3499 See also Dean v Hercules Inc 328 So 2d 69 71 La 1976 nature of the obligation breached determines the applicable prescriptive period Iames v Buchert 144 So 2d 435 La App 4 Cir 1962 servitude holder entitled to removal of fence that impeded use of servitude even though fence was constructed four years prior to filing of suit The evidence establishes that the metal fence currently located in the servitude was placed there in 1998 The subject suit was filed on October 29 2010 Therefore the DiStefanos claim seeking to have that fence removed from the servitude area has prescribed and was properly dismissed The remainder of the constructions were undertaken within ten years of the filing of the subject suit and have not prescribed Those claims should not have been dismissed on the 4 exception of prescription and should be remanded for further proceedings to determine if these objects diminish or make more inconvenient the use of the servitude Far the above reasons I concur in affirming the trial court sjudgment to the extent it granted the exception of prescription and dismissed the claim seeking relief for the construction of the metal fence I also concur in the reversal of the judgment to the e it dismissed the remaining claims arising out of the other ctent constructions and plantings placed in the servitude within ten years prior to suit because those claims have not prescribed and I would order a remand for the purpose of determining if these objects diminish or make more inconvenient the use of the servitude 5
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