Martha Cooper wife of/and Wesley Cooper v. Amber and Mark Theard

STATE OF LOUISIANA

FIRST CIRCUIT

2021 CA 1574

MARTHA COOPER WIFE OF/AND WESLEY COOPER

VERSUS

AMBER AND MARK THEARD

DATE OF JUDGMENT. • AUG 1 1 2022

ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT,
PARISH OF TANGIPAHOA, STATE OF LOUISIANA
NUMBER 2020- 0001854, DIVISION F

HONORABLE WILLIAM S. DYKES, JUDGE

Gary J. Gambel Counsel for Plaintiffs -Appellees
Hammond, Louisiana Martha Cooper and Wesley Cooper

Brittney I. Esie
Samuel L. Sands
New Orleans, Louisiana

Russell C. Monroe Counsel for Defendants -Appellants
Ponchatoula, Louisiana Amber Theard and Mark Theard

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

Disposition: AFFIRMED.

C6hGUV6 0S1j"A- S
f

CHUTZ, J.

Defendants -appellants, Amber and Mark Theard, appeal the trial court' s

judgment granting a preliminary injunction in favor of plaintiffs -appellees, Martha

and Wesley Cooper, allowing the Coopers to use a driveway located primarily on

the Theards' property. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 17, 2020, the Coopers filed a petition for a temporary restraining

order ( TRO) and injunctive relief in which they alleged that they and the Theards

are owners of adjoining tracts of land located at 67599 and 67579 South River

Road in Kentwood, Louisiana, who share a common driveway that provides the

sole access to each of their homes. The Coopers averred that from the time they

acquired their tract in 2014, they enjoyed a servitude allowing for their use of the

driveway with the Theards' predecessor -in -title, Emanuel J. Guerra. According to

the Coopers, Wesley and Guerra entered into an agreement memorializing that

they shared a driveway, which was filed into the public records.

In their petition, the Coopers claimed that in May 2020, shortly after the

Theards acquired their property, the Theards began efforts to prevent the Coopers

from using the driveway, including erecting and locking the gate as well as placing

obstructions in the road, effectively denying the Coopers access to their home. The

Coopers sought injunctive relief prohibiting either party from interfering with the

other parties' use of the driveway and a TRO ordering the Theards to cease all

activities that obstructed or inhibited use of or access to the road by the Coopers

and their visitors. The trial court issued the requested TRO on July 17, 2020. On

July 20, 2020, the Theards filed an opposition to any relief in favor of the Coopers.

The request for a preliminary injunction was tried and at the conclusion of

the hearing, the trial court determined that the Coopers were entitled to the

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injunctive relief, finding that Guerra and Wesley intended to create a right of use of

the driveway in favor of the Coopers and that the subsequent sale from Guerra to

the Theards was subject to that right of use.' The trial court signed a judgment

issuing a preliminary injunction in favor of the Coopers, which granted them the

use of the common driveway. A motion for new trial filed by the Theards was

denied. This appeal followed.

DISCUSSION

A preliminary injunction is an interlocutory order issued in a summary

proceeding incidental to the main demand for permanent injunctive relief and is

designed to preserve the status quo between the parties pending a trial on the
merits.
Plaintiffs bear the burden of establishing, by a preponderance of the

evidence, a prima-facie showing that they will prevail on the merits. See La. C. C. P.

art. 3601; Byron E. Talbot Contractor, Inc. v. Lafourche Par. Sch. Bd., 2021-

0181 ( La. App. 1st Cir. 11/ 1/ 21), 332 So. 3d 699, 702.2

Although the matter was heard by Honorable Donald M. Fendlason presiding ad hoe, the
judgment granting the preliminary injunction was signed by Judge William S. Dykes. Generally,
a judgment signed by a judge who did not preside over the trial is not an informality, irregularity,
or misstatement that may be corrected by the trial court; it is a fatal defect to this court' s
jurisdiction. See Employers Nat' l Ins. Co. v. Workers' Compensation Second Injury Bd., 95-
1756 ( La. App. 1st Cir. 4/ 4/ 96), 672 So. 2d 309, 312. However, because Judge Fendlason
indicated his intent to sign a judgment in favor of the Coopers, Judge Dykes was empowered to
sign the appealed judgment in his capacity as successor judge. See Henry v. Sullivan, 2016- 1867
La. 11/ 18/ 16), 206 So.3d 858 ( per curiam). See also La. R. S. 13: 4209( B)( 2) (" If a prior judge
has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the
successor judge is empowered to sign the judgment.").

2 The Theards do not challenge the Coopers' averments that no showing of irreparable harm was
necessary. See La. C. C. P. art. 3601( A) (" An injunction shall be issued in cases where irreparable
injury, loss, or damage may otherwise result to the applicant, or in other cases specifically
provided by law."). The Coopers maintain the conduct they sought to have enjoined was a
violation of prohibitory law such that irreparable harm was presumed. See Zachary Mitigation
Area, LLC v Tangipahoa Par. Council, 2016- 1675 ( La. App. 1st Cir. 9/ 21/ 17), 231 So. 3d 687,
690- 91 ("[ A] showing of irreparable injury is not necessary when the act sought to be enjoined is
unlawful."). Alternatively, the Coopers rely on La. C. C. P. art. 3663, which provides for
injunctive relief to protect or restore possession of immovable property or of a real right therein
to a plaintiff in a possessory action, during the pendency thereof, and a person who is disturbed
in the possession which he and his ancestors in title have had for more than a year of immovable
property or of a real right therein of which he claims the ownership, the possession, or the
enjoyment. See Carbo v. City of Slidell, 2001- 0170 ( La. App. 1st Cir. 1/ 8/ 03), 844 So. 2d 1, 10,
writ denied, 2003- 0392 ( La. 4/ 25/ 03), 842 So.2d 400 (" Irreparable injury is not an element of
proof for obtaining injunctive relief pursuant to Article 3663.").

3

Whether to grant or deny a preliminary injunction rests within the sound

discretion of the trial court. While the trial court' s ruling will not be disturbed on
appeal absent an abuse of that discretion, this standard is based upon a conclusion

that the trial court committed no error of law and was not manifestly erroneous or

clearly wrong in making a factual finding necessary to the proper exercise of its

discretion. Byron E. Talbot Contractor, Inc., 332 So. 3d at 702. To reverse under

the manifest error rule, an appellate court must find from the record that there is no

reasonable basis for the trial court' s finding and that the record shows the finding

to be manifestly erroneous. Stobart v State through Dep' t of Transp. and Dev.,
617 So. 2d 880, 882 ( La. 1993).

On appeal, the Theards contend that the trial court erred as a matter of law

and was manifestly erroneous in granting a preliminary injunction in favor of the

Coopers. Particularly, the Theards maintain the record is devoid of any evidence to

support a finding that a servitude was created. And they urge that the document

that the trial court relied upon to conclude the Coopers were entitled to use of the

driveway did not express an intent to create a servitude.

At the commencement of the trial, at which no testimony was adduced, the

parties stipulated to the admissibility of the exhibits, including the agreement

Wesley entered into with Guerra. The handwritten document states:

To Whom It May Concern

I reside at 67599 South River Road. My neighbor and I share a
driveway. We also share maintenance of the drive.

This agreement, which is not dated, was signed by " Emanuel J. Guerra" and

Wesley G. Cooper" and recorded in the conveyance records on November 5,

2018.

Also admitted into evidence was the cash sale by which the Theards

acquired their tract from Guerra on March 20, 2020. According to the provisions of

0

the act of sale, Guerra sold and delivered to the Theards a certain piece of ground

together with ... all the rights, ways, privileges, servitudes, appurtenances, and

advantages."
The act of sale expressly stated that the possession and delivery of the
property was "[ s] ubject to the Road Maintenance Agreement, recorded November

5, 2018." Additionally, the Theards agreed that "[ t] he sale [ was] made and

accepted subject to all prior servitudes, easements, reservations, restrictions and

covenants of record in the office of the Clerk and Recorder."

The law recognizes two kinds of servitudes: personal servitudes and predial

servitudes. La. C. C. art. 533. Personal servitudes of rights of use confer upon a

person a specified use of an estate less than full enjoyment. See La. C. C. art. 639.

The right of use may confer only an advantage that may be established by a predial
servitude. La. C. C. art. 640. Rights of use are real rights which confer limited

advantages of use or enjoyment over an immovable belonging to another person.

Richard a Hall, 2003- 1488 ( La. 4/ 23/ 04), 874 So. 2d 131, 145. A right of use

includes the rights contemplated or necessary to enjoyment when the servitude was

created. Additionally, rights that may later become necessary are included in the

right of use, provided that a greater burden is not imposed on the property, unless

the title stipulates otherwise. See La. C. C. art. 642. A right of use is regulated by

application of the rules governing predial servitudes to the extent that their

application is compatible with the rules governing a right of use servitude. La. C. C.

art. 645.

The use and extent of the personal servitude of right of use must be

interpreted pursuant to the general rules for interpreting contracts, found in La.

C. C. art. 2045 et seq., and the special rules for interpreting servitude contracts set

forth in La. C. C. arts. 697- 734. Carbo v. City of Slidell, 2001- 0170 ( La. App. 1st

Cir. 1/ 8/ 03), 844 So. 2d 1, 11, writ denied, 2003- 0392 ( La. 4/ 25/ 03), 842 Sold 400.

E

The cardinal rule of contractual interpretation is that the intention of the

parties governs. See Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC,

2012- 2055 ( La. 3/ 19/ 13), 112 So. 3d 187, 192. The reasonable intention of the

parties to a contract is to be sought by examining the words of the contract itself

and not assumed. When the words of a contract are clear and explicit and lead to

no absurd consequences, no further interpretation may be made in search of the

parties' intent. Common intent is determined, therefore, in accordance with the

general, ordinary, plain, and popular meaning of the words used in the contract.

Accordingly, when a clause in a contract is clear and unambiguous, the letter of

that clause should not be disregarded under the pretext of pursuing its spirit, as it is

not the duty of the courts to bend the meaning of the words of a contract into

harmony with a supposed reasonable intention of the parties. Clovelly Oil Co.,
LLC, 112 So. 3d at 192. In other words, the intention of the parties is to be

determined in accordance with the plain, ordinary, and popular sense of the

language used in the agreement and by giving consideration on a practical basis to

the instrument in its entirety. Dunn v. Potomac Ins. Co. of Illinois, 94-2202 ( La.

App. 1st Cir. 6/ 23/ 95), 657 So. 2d 660, 663. And where the contract is silent as to

the extent and manner of use of the servitude, the intention of the parties is to be

determined in light of its purpose. La. C. C. art. 749; Platt v. Rimmer, 2016- 223

La. App. 3d Cir. 10/ 12/ 16), 203 So. 3d 553, 556.

Citing Robert Inv. Co., Inc. v. Eastbank, Inc., 496 Sold 465 ( La. App. 1 st

Cir. 1986), the Theards maintain that the undated, handwritten, un -witnessed, un -

notarized document contains no land description of the driveway, and no mention

of formal or legal words expressly creating a servitude in favor of the Coopers for

the use of the driveway. The Theards also suggest that the lack of a legal

description, map, or statement of the nature, extent, conditions, or limitations of

m

use in the signed agreement shows that the agreement is insufficient to support the

conclusion that it created a servitude in favor of the Coopers.

The Theards' reliance on Robert Inv. Co., Inc., 496 So. 2d at 469, is

misplaced. Robert Inv. Co., Inc. involved a predial servitude of the right of use of

a parking area. The court suggested that because none of the documents associated

with the property upon which plaintiff contended it had the right of use contained

the words " servitude," " right of use," " common," " public," " private,"
or any other

words evidencing any express intention to create a servitude, a predial servitude of

use for parking or any other related activity was not established. And because the

record contained no other evidence supporting a finding of an intent to grant a

servitude of use for parking, the court concluded that a predial servitude of use for

parking was not established. Robert Inv. Co., Inc., 496 So. 2d at 468- 69.

Although the Theards have correctly pointed out that the agreement before

us in this appeal did not specify the location of the driveway, it is evident the

parties knew of the driveway' s location. Moreover, nothing in the record suggests

that another driveway exists on the adjoining tracts so as to give rise to any

ambiguity in the understanding of the object of the agreement. That the

handwritten agreement between the neighbors did not include the formal or legal

words " servitude," " right of use," " common," " public," or " private" does not

defeat the clear and unambiguous expression between Wesley and Guerra to " share

a driveway." The language used is sufficient to confer upon the Coopers the

specified use of the driveway. Accordingly, the trial court did not err as a matter of

law in its conclusion that the agreement created a right of use of the driveway in

favor of the Coopers.

In its oral reasons for judgment, the trial judge stated:

The Court ... finds that the intent of the parties on November 5, 2018,
between ... Guerra and [ Wesley] was a creation of [a] right of use on

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this existing driveway. And the subsequent sale of the [ Guerra' s tract
to the Theards] would be subject to this right in favor of the Coopers.
The Theards] bought this property subject to this agreement to
share the driveway.

We find no manifest error in these detenni nations. Based on the clear and

unambiguous language of the agreement between Guerra and Wesley, the trial

court correctly found that the Coopers made a prima facie showing that the parties

intended to create a personal servitude of use of the driveway in favor of the

Coopers. And since the undated agreement was filed in the public record on

November 8, 2018, over a year before they purchased the property from Guerra,

the evidence supports a finding that the Theards purchased their property subject to

the personal servitude of use of the driveway in favor of the Coopers.

Accordingly, because the trial court committed no legal or manifest error in

its conclusions, it did not abuse its discretion by granting the preliminary

injunction that allowed the Coopers to use the driveway.

DECREE

For these reasons, we affirm the trial court' s judgment. Appeal costs are

assessed against defendants -appellants, Amber and Mark Theard.

AFFIRMED.

N.

MARTHA COOPER STATE OF LOUISIANA
WIFE OF/ AND
WESLEY COOPER

VERSUS COURT OF APPEAL

AMBER AND MARK FIRST CIRCUIT
THEARD
2021 CA 1574

HOLDRIDGE, J., concurring.

I concur in this case. Although the opinion correctly sets forth the standard of

review for the grant of a preliminary injunction, it goes beyond the limited review

an appellate court should exercise over the issuance of a preliminary injunction. See

Stevens v. St. Tammany Parish Government, 2016- 0197 ( La. 1 Cir.
App.

1/ 18/ 17), 212 So. 3d 562, 565- 66; Hill v. Jindal, 2014- 1757 ( La. 1 Cir.
App.

6/ 17/ 15), 175 So. 3d 988, 1002, 1007, writ denied, 2015- 1394 ( La. 10/ 23/ 15), 179

So. 3d 600.