Gabriel Markel v. Shantell Price

GABRIEL MARKEL * NO. 2023-CA-0704

VERSUS *
COURT OF APPEAL
SHANTELL PRICE *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-09440, DIVISION “I-5”
Honorable Lori Jupiter, Judge
******
Judge Paula A. Brown
******
(Court composed of Judge Joy Cossich Lobrano, Judge Paula A. Brown, Judge
Karen K. Herman)
LOBRANO, J., CONCURS IN THE RESULT

Daniel M. Redmann
DUPLASS, APLC
433 Metairie Rd
Suite 600
Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLANT

Taetrece Harrison
ATTORNEY AT LAW
900 Camp Street
Floor 3 - Box 4C13
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED
MAY 30, 2024

PAB
KKH

This appeal involves a claim for reimbursement of expenses paid to maintain

a predial servitude and adjacent property. Appellant, Gabriel Markel (“Mr.

Markel”), seeks to appeal the district court’s August 9, 2023 judgment on

reconventional demand that awarded Appellee, Shantell Price (“Ms. Price”), six

thousand dollars for reimbursement expenses incurred for mowing the grass on Mr.

Markel’s property; ordered Mr. Markel to pay attorney’s fees and court costs in the

amount of one thousand five hundred dollars; and ordered Mr. Markel to maintain

upkeep of the servitude and grass height on his property as long as he owns the

property. For the reasons that follow, the judgment of the district court is reversed

and Ms. Price’s case is dismissed with prejudice.

FACTS AND PROCEDURAL HISTORY

In October 1942, Viola Schwandt and Felix Nutz (the “Nutzes”), owners of

properties located at 1311-13 and 1315 Spain Street, New Orleans, Louisiana,

established a predial servitude of passage on 1311-13 Spain Street in favor of 1315

Spain Street in an Act of Sale of 1311-13 Spain Street to Citizens Homestead

Association. The servitude was described as one of ingress and egress for the

purposes of an alleyway/driveway for the benefit of the Nutzes, their heirs and

1

assigns. The alleyway/driveway measured one foot, six inches by a depth of one

hundred feet. In April 2006, Ms. Price purchased the shotgun double1 located at

1311-1313 Spain Street (“the double”). Mr. Markel purchased the adjacent

undeveloped lot located at 1315 Spain Street (“the vacant lot” or “the lot”) in

September 2015.

Mr. Markel filed, on October 11, 2022, a petition for possession and to quiet

title (the “Petition”). In the Petition, Mr. Markel alleged that a servitude did not

exist in favor of the vacant lot, but if it did the servitude had been extinguished as a

result of nonuse beginning in 2008. Mr. Markel further alleged that the existence

of the servitude acted as a cloud on the title to his property and his right to

encumber the property with a mortgage loan. Ms. Price filed an answer to Mr.

Markel’s Petition, denying all allegations therein. Thereafter, Mr. Markel filed a

motion for summary judgment, wherein he averred that he is the owner of the

dominant estate and that he expressly renounced the servitude so that it is

extinguished under La. C.C. art. 771.2 Ms. Price opposed the motion for summary

judgment and further filed a reconventional demand, praying for reimbursement of

expenses incurred for the maintenance of the servitude on behalf of the dominant

estate in the amount of twelve thousand dollars.

The district court heard the motion for summary judgment on January 26,

2023, and rendered judgment, which confirmed as extinguished an unencumbered

servitude in favor of property at 131[5]3 Spain Street in New Orleans. The district

1 The term “double” has the same meaning as “duplex.”

2 Louisiana Civil Code article 771 provides that “[a] predial servitude is extinguished by an

express and written renunciation by the owner of the dominant estate.”
3 The district court inadvertently identified the dominant estate as the double, when the record

indicates that the double was the servient estate and the vacant lot was the dominant estate.

2

court specifically noted that this judgment only resolved the claims asserted by Mr.

Markel and did not address the reconventional demand filed by Ms. Price.

Following, Mr. Markel filed an exception of no cause of action to Ms. Price’s

reconventional demand, which the district court heard and later denied.

On August 1, 2023, Ms. Price’s reconventional demand came for trial. The

pertinent testimony elicited at trial revealed that sometime after Ms. Price

purchased the double in 2006, she erected a fence between the double and the

vacant lot. She hired Walter Flores, (“Mr. Flores”), of Team Work Group, LLC—

a lawn care service—to mow the grass on the vacant lot. Notably, he did not mow

the lawn within the fenced area, which surrounded the double. Even after Ms.

Price removed the fence that divided the properties, Mr. Flores continued to mow

the grass on the vacant lot at Ms. Price’s direction. Ms. Price offered into evidence

invoices from Mr. Flores for the years 2017 through 2022, which evidenced that

Ms. Price spent twelve thousand dollars during that time period to maintain the

vacant lot.

Ms. Price first met Mr. Markel sometime in 2017. Mr. Markel introduced

himself as the owner of the vacant lot, and she explained that she had been mowing

the grass on the lot. At that time, there was no other conversation about mowing

the grass on the lot in exchange for compensation. She said that she maintained

the grass on lot to prevent rodents when the grass is high. However, she admitted

that she never allowed the grass to grow high. She further admitted that she

maintained the vacant lot for her own use—she parked vehicles and a boat on the

lot, and she set up a basketball goal on the lot for the neighborhood kids.

3

Ms. Price recalled that at some point Mr. Markel told her to stop mowing the

grass and parking on the vacant lot. In an August 1, 20224 text message

conversation between Ms. Price and Mr. Markel the following exchange occurred:5

Mr. Markel: [I] need to ask you to not park your vehicles in my
property.

Ms. Price: *thumbs up emoji*
And I need my money from cutting the grass
From five years ago

Mr. Markel: [I] had a contract with a lawn service to cut the grass
there for years.
[W]hat did we agree would be the rate for you to cut the grass? [H]ow
many times did you cut the grass?
[I] lived next to an empty lot down on [M]usic [S]treet for years. [I]
know it is a pain (people pissing, graffiti). . . .

Ms. Price said that Mr. Markel called her afterwards and asked, “[H]ow much do I

owe for cutting the grass?” Ms. Price responded that she had an attorney and that

Mr. Markel could speak with her attorney.

According to Mr. Markel, he bought the vacant lot in 2015, and hired

Cavalier Home & Gardens to provide lawn care on the vacant lot. He eventually

terminated the lawn care services because the company informed him that on

multiple occasions when they arrived to mow the grass on the lot, it had already

been cut. It was Mr. Markel’s intention to build a home for his family on the

vacant lot, but when he attempted to obtain a construction loan he encountered an

issue because of an existing servitude, which clouded the title to his property. Mr.

Markel denied having any conversations with Ms. Price about her maintaining the

vacant lot on his behalf in exchange for compensation. However, he testified that

4 The parties stipulated to the date of the text message exchange.

5 A photo copy of the text message exchange was offered, filed and introduced into the record,

without objection.

4

he did attempt to contact Ms. Price in hopes that the issue of removing the

servitude on the vacant lot could be resolved without filing a lawsuit, but to no

avail. Because an agreement had not been reached, he asked Ms. Price to stop

parking her vehicles on the lot. In response, Ms. Price asked for money for

mowing the lot. When asked about the previously admitted text message

conversation with Ms. Price, Mr. Markel explained that after Ms. Price demanded

payment, he asked a rhetorical question, “What were the terms of our agreement?”

Mr. Markel said that the question was asked to demonstrate to Ms. Price that there

was no agreement. Nonetheless, Mr. Markel admitted that if Ms. Price had

approached him with a reasonable number that was less than court costs to resolve

the servitude issue, he would have been amenable to pay it.

At the conclusion of the trial, the district court took the matter under

advisement and issued judgment on August 9, 2023 in favor of Ms. Price and

against Mr. Markel. The district court stated that “[Mr.] Markel had extended

knowledge and notice that [Ms.] Price was maintaining the servitude along with

her property regularly,” and ordered Mr. Price to pay six thousand dollars for her

reimbursement claim “considering both parties benefitted from the upkeep of the

servitude and that there was no cost difference in mowing just the servitude, just

the adjacent property or both.” The district court further ordered Mr. Markel to

pay attorney’s fees in the amount of one thousand five hundred dollars and to

maintain the vacant lot and servitude to the standard grass height of two-and-a-half

to three inches as long as owned the vacant lot.6

It is from this judgment that Mr. Markel seeks review.

6On September 6, 2023, the district court issued a Corrected Judgment of Reconventional
Demand, which contains language that is identical to that of the August 9, 2023 judgment.

5

STANDARD OF REVIEW

“The standard of review of the [district] court’s decision in awarding

damages alleged in a reconventional demand is whether the court’s factual findings

are manifestly erroneous or clearly wrong.” Bowes v. McIntire, 21-672, pp. 16-17

(La. App. 5 Cir. 7/6/22), 345 So.3d 1109, 1121 (citing Begnaud v. Camel

Contractors, Inc., 98-207, p. 9 (La. App. 3 Cir. 10/28/98), 721 So.2d 550, 556).

“To reverse under the manifest error rule, an appellate court must find from the

record that there is no reasonable basis for the [district] court’s finding and that the

record shows the finding to be manifestly erroneous.” 1026 Conti Condominiums,

LLC v. 1025 Bienville, LLC, 19-0826, p. 5 (La. App. 4 Cir. 8/5/20), 364 So.3d 297,

301 (citing 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, 15-0301, p. 4

(La. App. 4 Cir. 12/23/15), 183 So.3d 724, 727).

“Furthermore, ‘[w]here two permissible views of the evidence exist, the fact

finder’s choice between them cannot be manifestly erroneous or clearly wrong,

even if the reviewing court would have decided the case differently.’” Greenblatt

v. Sewerage & Water Bd. of New Orleans, 19-0694, p. 4 (La. App. 4 Cir.

12/20/19), 287 So.3d 763, 766-67 (quoting Everhardt v. Louisiana Dep’t of

Transp. & Dev., 07-0981, p. 18 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036, 1049).

“However, ‘where one or more [district] court legal errors interdict the fact-finding

process, the manifest error standard is no longer applicable.’” Huntsman Int’l,

L.L.C. v. Praxair, Inc., 22-0777, p. 5 (La. App. 4 Cir. 4/19/24), ___ So.3d ___,

___, 2024 WL 1695071, at *2 (quoting Jones v. Maryland Casualty Co., 18-0552,

0553, 0554, 0555, pp. 5-6 (La. App. 4 Cir. 5/11/22), 339 So.3d 1243, 1247). “[I]f

the record is otherwise complete, the appellate court should make its own

independent de novo review of the record and determine a preponderance of the

6

evidence.” Id. “[A] plaintiff-in-reconvention bears the burden of establishing his

claim in the same manner as the plaintiff in the main demand.” Miller v. Leonard,

588 So.2d 79, 81 (La. 1991). “Proof by direct or circumstantial evidence is

sufficient to constitute a preponderance when the entirety of the evidence

establishes the fact or causation sought to be proved is more probable than not.”

Lazard v. Progressive Paloverde Ins. Co., 19-495, p. 4 (La. App. 3 Cir. 12/18/19),

2019 WL 6898658, at *2 (quoting Miller, 588 So.2d at 81).

DISCUSSION

The crux of Mr. Markel’s argument is that the district court erred by

granting relief to which Ms. Price was not entitled to as a matter of law.

Specifically, Mr. Markel raises three assignments of error: (1) the district court

erred by ordering him to reimburse Ms. Price for her maintenance of the vacant lot;

(2) the district court erred by ordering him to pay Ms. Price’s attorney’s fees; and

(3) the district court erred by ordering him to maintain the grass height on the

vacant lot at two-and-a-half to three inches. We will address each assigned error in

turn.

Reimbursement of maintenance expenses

Louisiana Civil Code Article 646 defines a predial servitude as “a charge on

a servient estate for the benefit of a dominant estate.” “The two estates must

belong to different owners.” Id. “In the civilian literature, the estate burdened

with a predial servitude is designated as ‘servient’ (praedium serviens); the estate

in whose favor (or in whose owner’s favor) the servitude is established is

designated as ‘dominant’ (praedium dominans).” A.N. Yiannopoulos, Predial

Servitudes; General Principles: Louisiana and Comparative Law, 29 LA. L. REV.

1, 5 (1968). “[Louisiana Civil Code] Article 651 clearly states that beyond

7

maintaining the estate in condition for exercise of the servitude, ‘[t]he owner of the

servient estate is not required to do anything.’” Sharp v. St. Tammany Par. Ex rel.

Dep’t of Pub. Works, 06-0815 (La. App. 1 Cir. 2/14/07), 2007 WL 466777, at *2.

“Expenses such as maintenance of the servitude may only be assigned to the

servient owner by contractual agreement.” Id. “By contrast, [Louisiana Civil

Code] Articles 744 and 745 clearly place responsibility for any affirmative acts or

constructions that may be necessary for ‘the use and preservation of the servitude’

on the owner of the dominant estate.” Id.

While an adjoining owner has the right to demand the removal of trees,

bushes, or plants on the boundary that interfere with the enjoyment of his estate, he

must do so at his own expense. See La. C.C. art. 687. To the contrary, “[a]

landowner has the right to demand that the branches or roots of a neighbor’s trees,

bushes, or plants that extend over or into his property be trimmed at the expense of

the neighbor.” La. C.C. art. 688. This article further provides that “[a] landowner

does not have this right if the roots or branches do not interfere with the enjoyment

of his property.” Id.

“A contract is an agreement by two or more parties whereby obligations are

created, modified, or extinguished.” La. C.C. art. 1906. “An obligation is a legal

relationship whereby a person, called an obligor, is bound to render a performance

in favor of another, called the obligee. Performance may consist of giving, doing,

or not doing something.” La. C.C. art. 1756. “An obligation cannot exist without

a lawful cause.” La. C.C. art. 1966. “Cause is the reason why a party obligates

himself.” La. C.C. art. 1967. “A contract is formed by the consent of the parties

established through offer and acceptance.” La. C.C. art. 1927. “[U]nlike the

common law analysis of a contract using consideration which requires something

8

in exchange, the civil law concept of “cause” can obligate a person by his act of the

will.” Bains v. Young Men’s Christian Ass’n of Greater New Orleans, 06-1423, p.

5 (La. App. 4 Cir. 10/3/07), 969 So.2d 646, 649. “The difference has been

analogized to a civilian contract-consent approach compared to a common law

contract-bargain approach.” Id. “Consideration is an objective element required to

form a contract, whereas cause is a more subjective element that goes to the

intentions of the parties.” Id. “Therefore, in Louisiana law, a person can be

obligated by both a gratuitous or onerous contract.” Id. “This Court has

consistently noted that ‘[c]onsent is an absolute necessity to the formation of a

contract, and ‘where there is no meeting of the minds between the parties the

contract is void for lack of consent.’” Moridani v. Stone Clinical Labs., LLC, 17-

0519, p. 7 (La. App. 4 Cir. 11/22/17), 231 So.3d 803, 807 (quoting Marseilles

Homeowners Condo. Ass’n, Inc. v. Broadmoor, L.L.C., 12-1233, p. 18 (La. App. 4

Cir. 2/27/13), 111 So.3d 1099, 1111).

“Ratification is a declaration whereby a person gives his consent to an

obligation incurred on his behalf by another without authority.” La. C.C. art. 1843.

“Tacit ratification results when a person, with knowledge of an obligation incurred

on his behalf by another, accepts the benefit of that obligation.” Id. “Obligations

arising without agreement for which the law has provided an equitable remedy

pursuant to Title V of the Louisiana Civil Code are based on the concept of quasi-

contract.” Webb v. Webb, 01-1577, p. 6 (La. App. 1 Cir. 11/8/02), 835 So.2d 713,

718.

With these precepts in mind, we now turn to Mr. Markel’s first assignment

of error.

9

Ms. Price’s reconventional demand sought reimbursement for expenses

incurred to maintain the servitude; however, at trial her claim for reimbursement

expanded to include maintenance of the vacant lot.7 Mr. Markel contends that

there is no law to support Ms. Price’s claim for reimbursement for expenses

incurred to maintain her own property, which encompassed the servitude area, or

his vacant lot without an agreement to do so. Because Ms. Price is seeking

reimbursement of monies paid for the benefit of another, she had the burden of

proving the nature of the obligation that was owed to her and her entitlement to

recover money as a result of the obligation. See La. C.C. art. 1831 (requiring the

party demanding performance of an obligation to prove the existence thereof).

The evidence adduced at trial, particularly the testimony of Ms. Price and

that of Mr. Flores, confirmed that: (1) Mr. Flores was hired to mow the vacant lot

before and after Mr. Markel acquired ownership of the property; (2) there was no

grass on the strip of driveway that encompassed the servitude; (3) Mr. Flores did

not mow any grass on the double—the servient estate; (4) when the fence was

erected between the double and the vacant lot, Mr. Flores performed lawn care

exclusively on the vacant lot; and (5) after Ms. Price removed the fence, Mr.

Flores’ instructions remained unchanged—he was responsible for and

compensated for mowing the grass on the vacant lot. Ms. Price’s testimony further

confirms that high grass did not interfere with her enjoyment of her estate because

she took preventative measures to keep the grass height low. Further, although Mr.

Markel hired a company to maintain the vacant lot, he ended his maintenance

7 At the close of Ms. Price’s case-in-chief, Mr. Markel moved for an involuntary dismissal on the

basis that Ms. Price had not proven any entitlement to relief on the basis that: (1) the
reconventional demand did not allege a claim for reimbursement for mowing the vacant lot; and
(2) there is no law to support such a claim. Mr. Markel did not raise as an assigned error the
district court’s denial of his motion for involuntary dismissal.

10

contract after he discovered that the grass was already being maintained by Ms.

Price. Both parties testified that after they met, there was no conversation

regarding compensation in exchange for Ms. Price mowing the vacant lot. In the

years that followed, Ms. Price continued to maintain the vacant lot. In doing so,

she enjoyed exclusive use of the lot. As to the August 1, 2022 text message

between Ms. Price and Mr. Markel, it was only after Mr. Markel told Ms. Price to

stop parking on the vacant lot, that she requested reimbursement of expenses for

mowing the lawn. This occurred just prior to Mr. Markel filing his Petition in

October 2022.

Applying the codal articles set forth above in pari materia to the facts of

this case, we find that the record does not support the district court’s judgment that

Ms. Price maintained the servitude. The maintenance undertaken by Ms. Price did

not include the narrow strip of land which encompassed the servitude on her

property; instead, Ms. Price maintained the vacant lot. We further find that there

was no written or oral contract between the parties, such that Ms. Price was to

maintain the vacant lot on behalf of Mr. Markel in exchange for compensation.

Notwithstanding, the evidence shows that Mr. Markel knew Ms. Price was mowing

the vacant lot, he acquiesced to her mowing the lot, and he accepted the benefits of

her maintaining the lot. As such, we conclude that Mr. Markel’s actions amounted

to a tacit ratification of an onerous contract with Ms. Price, wherein each party

obtained an advantage in exchange for an obligation—Ms. Price mowed the vacant

lot in exchange for Mr. Markel allowing her to use the vacant lot to her benefit. In

other words, after five years of mowing the vacant lot and using the lot for her own

benefit, Ms. Price is now estopped from seeking reimbursement for maintaining

same. See Bains, 06-1423, p. 4, 969 So.2d at 649 (wherein this Court noted that “it

11

is not licit to enforce a right in contradiction to one’s previous conduct, when that

conduct, interpreted in good faith, would justify the conclusion that the right does

not exist or will not be enforced”) (citation omitted). This assignment of error has

merit.

Attorney’s fees

Mr. Markel asserts that the district court erred when it ordered him to pay

attorney’s fees and court costs in the amount of fifteen hundred dollars. We agree.

“It is axiomatic that ‘attorneys’ fees are not recoverable unless expressly

authorized by statute or by a contract between the parties.’” English Turn Prop.

Owner’s Ass’n, Inc. v. Short, 16-0460, p. 17 (La. App. 4 Cir. 11/30/16), 204 So.3d

672, 684 (quoting KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11-

0598, p. 11 (La. App. 4 Cir. 3/14/12), 89 So.3d 1207, 1213). “An award of

attorneys’ fees is left to the sound discretion of the trial court, which will not be

reversed on appeal unless that discretion was clearly abused.” Bd. of Sup’rs of

Louisiana State Univ. v. Dixie Brewing Co., Inc., 15-1053, p. 13 (La. App. 4 Cir.

9/1/16), 200 So.3d 977, 986 (citing 1100 S. Jefferson Davis Parkway, LLC v.

Williams, 14-1326, p. 11 (La. App. 4 Cir. 5/20/15), 165 So.3d 1211, 1220).

“Where the standard of review is an abuse of discretion, the role of the reviewing

court is not to determine what it considers to be an appropriate award, but rather it

is to review the exercise of discretion by the trier of fact.” Id. (quoting Covington

v. McNeese State Univ., 12-2182, p. 11 (La.5/7/13), 118 So.3d 343, 351). Because

there is no applicable statute nor contract between the parties that entitled Ms.

Price to an award for attorney’s fees, we find that the district court erred in

awarding attorney’s fees as it did.

12

Court order to maintain servitude and grass height

In his final assignment of error, Mr. Markel avers that the district court erred

by ordering him to maintain the servitude and grass on the vacant lot within two-

and-a-half to three inches. First, we note that the predial servitude that burdened

the double in favor of the vacant lot was extinguished through Mr. Markel’s

express and written renunciation and the January 30, 2023 judgment on the motion

for summary judgment. As this Court espoused in Plaquemines Par. Gov’t v.

Hinkley:

Article II, section 1 of the Louisiana Constitution establishes three (3)
distinct branches of government: legislative, executive, and judicial.
Section 2 of that article provides: “Except as otherwise provided by
this constitution, no one of these branches, nor any person holding
office in one of them, shall exercise power belonging to either of the
others.” La. Const. art. II, § 2. Thus, “[t]his trichotomous branching
of authority furnishes the basis for the existence of an inherent judicial
power which the legislative and executive branches cannot abridge.”
Hoag v. State, 04-0857, p. 4 (La. 12/1/04), 889 So.2d 1019, 1022.
“Similarly the judicial branch may not usurp those powers which are
vested in the other two branches.” Id.

19-0929, pp. 5-6 (La. App. 4 Cir. 4/22/20), 364 So.3d 214, 218. Pursuant to the

Home Rule Charter of the City of New Orleans, Sec. 3-101(1), “[a]ll legislative

powers of the City shall be vested in the Council [for the City of New Orleans].”

The most current version of the Code of Ordinances for the City of New Orleans,

Sec. 66-312 (a), adopted Council for the City of New Orleans, provides in

pertinent part that “neither grass nor weeds shall rise above the height of ten

inches.” The district court’s order, which obligated Mr. Markel to maintain his

grass within a range of two-and-a-half to three-inches, imposed a higher burden

than the ten-inch height limit imposed by the Council’s ordinance. Consequently,

the district court usurped the legislative power vested in the Council and further

13

committed legal error by ordering Mr. Markel to maintain the grass within two-

and-a-half to three inches. This assignment of error has merit.

DECREE

For the aforementioned reasons, the judgment of the district court is

reversed.

REVERSED

14