Carrere Holdings, LLC v. Charlotte Anne Williamson

CARRERE HOLDINGS, LLC * NO. 2024-CA-0141

VERSUS *
COURT OF APPEAL
CHARLOTTE ANNE *
WILLIAMSON FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-01367, DIVISION “B”
Honorable Marissa Hutabarat,
******
Judge Nakisha Ervin-Knott
******
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge
Nakisha Ervin-Knott)

Patrick S. McGoey
Andrea Timpa
McClain R. Schonekas
SCHONEKAS EVANS McGOEY & McEACHIN, L.L.C.
909 Poydras Street, Suite 1600
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLEE

Richard L. Traina
Charles L. Stern, Jr.
THE STEEG LAW FIRM, LLC
201 Saint Charles Avenue, Suite 3201
New Orleans, LA 70170

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
SEPTEMBER 17, 2024

NEK Charlotte Anne Williamson (“Ms. Williamson”) seeks review of the trial
DLD
court’s August 30, 2023 judgment granting Carrere Holdings, LLC’s (“Carrere”)
JCL
motion for partial summary judgment.1 After considering the record before this

Court, we affirm the trial court’s judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This civil action involves a predial servitude that was created in connection

with the purchase of immovable property. Ms. Williamson owns the property located

at 4864-66 Magazine Street (“4864-66 Magazine”), which is situated at the corner

of Magazine and Upperline Streets, in New Orleans, Louisiana. Carrere owns the

property located at 4858 Magazine Street (“4858 Magazine”) in New Orleans,

Louisiana. These two properties are adjacent to each other.

On March 30, 2000, Ms. Williamson purchased 4864-66 Magazine from

George C. Holmes (“Mr. Holmes”), Carrere’s predecessor-in-title. Attached to the

Act of Cash Sale was an Addendum to Cash Sale of Property Between George C.

Holmes & Charlotte Williamson (“Addendum”), which established a right of way at

1 Judge Pro Tempore Sheryl Howard rendered the trial court judgment in this matter as she was

presiding over recently retired Judge Robin Giarrusso’s docket.

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the rear of 4864-66 Magazine in favor of 4858 Magazine. The Addendum

specifically stated, in part:

1. Purchaser [Ms. Williamson] and Seller [Mr. Holmes] agree to
establish and retain for Seller’s use and enjoyment a Right of Way, or
the equivalent of a Servitude or Easement, at the rear of the subject
property that shall act as accessfor [sic] ingress and egress to the Seller-
owned property at Municipal Address 4858 Magazine Street, New
Orleans, Louisiana, that adjoins the subject property.

2. The Right of Way shall be described as follows, in accordance to a
plat and survey prepared by Dading, Marques and Associates, Inc., July
15, 1996, and describing the property as Parish of Orleans, Louisiana,
City of New Orleans, Sixth District, Square 197 (Bouligny), Lot "A",
bounded by Magazine, upperline [sic], Constance and Lyons Streets:

The Right of Way shall commence sixteen (16) feet North
from the very Southeast corner of the property, then due
West all the way to the Western boundry [sic] property
line, then due South all the way to the Southern boundry
[sic] property line, and then due East along the Southern
boundry [sic] property line to the very Southeast corner of
the property.

3. Purchaser and Seller agree Seller shall retain the property of the Right
of Way and improvements thereon for his sole use and enjoyment, but
that at no time shall Seller unreasonably obstruct Purchaser’s ingress
and egress to her property.

4. Purchaser and Seller further agree and acknowledge Seller shall, at
some future date, remove or demolish any improvements on the Right
of Way and construct on access drive and any gate as necessary that
may unite with Purchaser's entry gate at the rear of her premises.
Purchaser hereby agrees to permit Seller to remove the existing rear
wall and entry gate that adjoins her promises, in order to move the
existing entry gate and re-erect any new wall and gate. Further,
Purchaser authorizes Seller to utilize the rear entry gate for ingress and
egress to use and maintain the Right of Way area open and free of
further fencing, except that wall constructed at the rear of the subject
property in accordance with a Site Plan initialled [sic] and made a part
hereof by this reference.

…

6. Purchaser and Seller agree this Addendum and all other documents
referenced therein relating to their Contract to Buy and Sell the subject
property shall be binding upon their successors or assigns.

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Additionally, Ms. Williamson and Mr. Holmes executed a Servitude of Way or

Passage (“Servitude Agreement”), which provided in part:

PERSONALLY CAME AND APPEARED: CHARLOTTE ANNE
WILLIAMSON, who declared that they are the owners of the following
described property, to-wit:

SEE ADDENDUM “A” ANNEXED HERETO
IMPROVEMENTS THEREON BEAR THE MUNICIPAL NO.
4864-66 MAGAZINE STREET, NEW ORLEANS, LA 70115

That GEORGE C. HOLMES are the owner of the following described
property, to-wit:

SEE ADDENDUM “B” ANNEXED HERETO
4858 MAGAZINE STREET, NEW ORLEANS, LA 70115

SEE ADDENDUM “C” ANNEXED HERETO
SITE PLAN

For and in consideration of One and no/100 ($1.00) Dollar, receipt of
which is hereby acknowledged, Charlotte Anne Williamson, agree to
create a servitude of way or passage on the property located at 4864-66
Magazine Street, New Orleans, La 70115 for the right of ingress and
egress of the existing structure located at 4858 Magazine Street, New
Orleans, La 70115. This servitude on the property located at 4864-66
Magazine Street, New Orleans, La 70115 shall commence sixteen (16)
feet North from the very Southeast corner of the property, then due
West all the way to the Western boundary property line, then due South
all the way to the Southern boundary property line and then due East
along the Southern boundary property line to the very Southeast corner
of the property.

Appears [sic] shall at no time obstruct the servitude of way or passed
[sic] in a manner so as to interfere with the use thereof by the occupants
of the respective properties.

Appearers agree that this contract is binding on their heirs and assigns.

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The following year, Mr. Holmes sold 4858 Magazine to 4858 Magazine

Street, LLC (“the LLC”) by way of Act of Cash Sale, which stated in pertinent part,

“Seller [Mr. Holmes] transfers and assigns to purchaser [the LLC] his rights under a

Servitude of Way or Passage between himself and Charlotte Anne Williams or any

agreements relating to said use of passage.” Under the LLC’s ownership, 4858

Magazine underwent several structural changes, including: (1) adding an addition to

the existing structure that extended into the “New Parking” spaces shown on

Addendum C; (2) constructing a courtyard with a fountain in the proposed vehicle

access area shown on Addendum C; (3) landscaping the proposed vehicle parking

area and vehicle access area shown on Addendum C; and (4) building a solid fence

(with a pedestrian gate) along the boundary line between the rears of 4858 Magazine

and 4864-66 Magazine.

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Twenty years later, Carrere purchased 4858 Magazine from the LLC pursuant

to an act of Cash Sale, which included the Servitude Agreement executed by Ms.

Williamson and Mr. Holmes. After purchasing 4858 Magazine, Carrere was unable

to exercise use of the servitude due to Ms. Williamson’s interference – she parked

her vehicle in the servitude. Attempting to amicably resolve the issue, one of

Carrere’s members sent Ms. Williamson a letter informing her of its intent to use the

servitude to drive and park vehicles in its backyard and requesting that she stop

parking a vehicle in the servitude. However, Ms. Williamson refused to comply with

Carrere’s request.

On February 15, 2022, Carrere filed a petition for declaratory judgment and

breach of servitude agreement seeking a declaratory judgment that it had the right to

use the servitude according to the terms of the Servitude Agreement; a judgment that

Ms. Williamson breached the Servitude Agreement; and an award of damages as a

result of the breach. Ms. Williamson answered the petition denying that Carrere was

entitled to the relief it sought and asserted a reconventional demand seeking a

declaratory judgment that the servitude was for vehicular use and had prescribed due

to nonuse or, alternatively, the servitude was extinguished when the structure for

which it was created in favor of ceased to exist.

After over a year of discovery, Carrere filed a motion for partial summary

judgment on its declaratory judgment claim. Ms. Williamson countered with a

motion for summary judgment on her claims. The hearing on both motions was held

on August 18, 2023. Ruling from the bench, the trial court granted Carrere’s motion

for partial summary judgment and denied Ms. Williamson’s motion for summary

judgment. The judgment was signed on August 30, 2023.

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In response to the trial court’s judgment, Ms. Williamson filed a consent

motion to designate partial summary judgment a final judgment and motion for order

of suspensive appeal on September 28, 2023. On October 10, 2023, the trial court

signed the orders designating the partial summary judgment as a final judgment and

granting this suspensive appeal.

STANDARD OF REVIEW

“Appellate courts review summary judgments under the de novo standard of

review, utilizing the same criteria employed by the trial court in determining whether

summary judgment is appropriate.” Cooper v. English Turn Prop. Owners Ass’n,

Inc., 2022-0748, p. 7 (La. App. 4 Cir. 4/25/23), 360 So.3d 633, 638 (citing

Succession of Rasch v. Dabezies, 2017-0331, p. 5 (La. App. 4 Cir. 10/18/17), 316

So.3d 1167, 1170). “When the facts are not in dispute, summary judgment is

appropriate as the appellate court need only ‘look solely to the legal question

presented by the motion for summary judgment.’” Id. (citing Power Mktg. Direct,

Inc. v. Foster, 2005-2023, p. 9 (La. 9/6/06), 938 So.2d 662, 669).

MOTION FOR SUMMARY JUDGMENT

“The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action.” La. C.C.P. art. 966(A)(2). “The

procedure is favored and shall be construed to accomplish these ends.” Id. “After an

opportunity for adequate discovery, a motion for summary judgment shall be granted

if the motion, memorandum, and supporting documents show that there is no

genuine issue as to material fact and that the mover is entitled to judgment as a matter

of law.” Id. at (A)(3). “The mover bears the burden of proof.” Cooper, 2022-0748,

p. 6, 360 So.3d at 638 (citing La. C.C.P. art. 966(D)(1). “Nevertheless, if the mover

will not bear the burden of proof at trial on the issue that is before the court, the

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mover is not required to negate all essential elements of the adverse party's claim,

but rather point out to the court the absence of one or more essential elements to the

non-mover's claim. Id. at pp. 6-7, 360 So.3d at 638 (See La. C.C.P. art. 966(D)(1)).

DISCUSSION

As her sole assignment of error, Ms. Williamson asserts the trial court erred

by granting Carrere’s motion for partial summary judgment and finding that the

servitude is active and may be used according to its terms. Ms. Williamson

formulates two arguments in support of her assertion: (1) the servitude was for

vehicular use, never was used by vehicles to access the existing structure on 4858

Magazine, and has prescribed; and (2) the structure at 4858 Magazine was changed

dramatically and is not the structure that existed there in 2000, thus, as a result, the

servitude was extinguished.

Argument Number One: The servitude was for vehicular use, never was used by
vehicles to access the existing structure on 4858 Magazine, and has prescribed.

As her primary argument, Ms. Williamson argues the servitude on 4864-66

Magazine was for vehicular use, never was used by vehicles to access the existing

structure on 4858 Magazine, and has prescribed. This Court previously stated the

laws concerning predial servitudes:

A predial servitude is a charge on a servient estate for the benefit of the
dominant estate. La. C.C. art. 646. La. C.C. art. 705 provides in part:

The servitude of passage is the right for the benefit of the dominant
estate whereby persons, animals, utilities, or vehicles are permitted to
pass through the servient estate. Unless the title provides otherwise, the
extent of the right and the mode of its exercise shall be suitable for the
kind of traffic or utility necessary for the reasonable use of the dominant
estate.

A predial servitude may be extinguished by nonuse for ten years. La.
C.C. art. 753. Prescription of nonuse begins to run for affirmative
servitudes from the date of their last use. La. C.C. art. 754. “When the
prescription of nonuse is pleaded, the owner of the dominant estate has

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the burden of proving that he or some other person had made use of the
servitude as appertaining to his estate during the period of time required
for the accrual of the prescription.” La. C.C. art. 764. An
essential element of proof in extinguishing a servitude for nonuse is
whether the servitude was in fact used for any purpose consistent with
its grant. Palgrave v. Gros, 2002-249, p. 4 (La. App. 5 Cir. 9/30/02),
829 So.2d 579, 582.

Thompson v. FRF Properties, LLC, 2017-0152, p. 9 (La. App. 4 Cir. 11/2/2017),

229 So.3d 598, 603-04.

Two documents give rise to the servitude in dispute – the Addendum and

Servitude Agreement. Ms. Williamson maintains the Addendum contemplated Mr.

Holmes constructing an access drive on the servitude sometime in the future, and the

Servitude Agreement indicated that a “new drive” would be constructed from the

rear of 4864-66 Magazine – starting on Upperline Street – to 4858 Magazine that

would allow vehicular access to “new parking” behind the 4858 Magazine property.

Examining these two documents in their totality, Ms. Williamson submits the

servitude was for vehicular use as the terms “drive” and “the right of way” are

typically associated with vehicles.

“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.”

La. C.C. art. 2046. Applying this legal principal to the matter herein, we find that a

clear reading of the Addendum and Servitude Agreement show that the servitude

was not limited to vehicle use only. Both documents provided a servitude of way or

passage that permits a way of passage for the right of ingress and egress – the mode

of ingress and egress are not defined in either document. Additionally, throughout

Ms. Williamson’s deposition, she acknowledged that Carrere and previous owners

of 4858 Magazine have a pedestrian right of passage on the servitude. Moreover,

Ms. Williamson admitted that the Servitude Agreement does not limit the servitude

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to vehicular use. As Mr. Holmes’ successor-in-title, Carrere has the right to utilize

the servitude in a way “suitable for the kind of traffic or utility necessary for the

reasonable use of” 4858 Magazine, which includes both vehicular and pedestrian

usage. See La. C.C. art. 705.

Considering the fact that the servitude was not limited to vehicular use only –

and pedestrian usage was permitted – the subsequent issue is whether the servitude

prescribed due to nonuse. The undisputed evidence in the record demonstrates the

servitude was utilized by pedestrians. During her deposition, Ms. Williamson

testified that since the creation of the servitude, vehicle usage of the servitude has

never occurred. Nevertheless, she conceded that pedestrian usage of the servitude

occurred from the servitude’s inception until just prior to this lawsuit, which was

filed in 2022. “Express statutory authority provides that partial use of the servitude

constitutes use of the whole.” Thompson, 2017-0152, p. 14, 229 So.3d at 606.

Consequently, “any use of a portion of the area burdened with a predial servitude

interrupts the prescription of nonuse as to the entire area.” Id. (citing Claitor v.

Brooks, 2013-0178, p.7 (La. App. 1 Cir. 12/27/13), 137 So.3d 638, 643-44). After

careful review, we find the undisputed evidence shows the servitude has been used

– at least by pedestrians – within the last ten years, which is consistent with the

servitude’s permitted use. Therefore, the servitude is not prescribed.

Argument Number Two: The structure at 4858 Magazine was changed
dramatically and is not the structure that existed there in 2000, thus, as a result,
the servitude was extinguished.

In the alternative, Ms. Williamson argues the structure at 4858 Magazine was

changed dramatically and is not the structure that existed there in 2000, thus, as a

result, the servitude was extinguished. “A predial servitude is extinguished by the

permanent and total destruction of the dominant estate or of the part of the servient

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estate burdened with the servitude.” La. C.C. art. 751. Further, “[i]f the exercise of

the servitude becomes impossible because the things necessary for its exercise have

undergone such a change that the servitude can no longer be used, the servitude is

not extinguished; it resumes its effect when things are reestablished so that they may

again be used, unless prescription has accrued.” La. C.C. art. 752.

According to the Servitude Agreement, the servitude was created “for the right

of ingress and egress of the existing structure located at 4858 Magazine…”

(emphasis added). Under the LLC’s ownership, 4858 Magazine underwent several

changes that altered the property as it existed at the servitude’s inception, including:

(1) an addition to the existing structure; (2) construction of a courtyard with fountain;

(3) additional landscaping; and (4) erection of a solid fence with pedestrian gate

along the boundary line between the rears of 4858 and 4864-66 Magazine. Ms.

Williamson contends because the current structure of 4858 Magazine is not the

structure that existed there when the servitude was created and has been dramatically

changed, the servitude is extinguished.

First, it is important to note that the “existing structure” of 4858 Magazine –

as it was at the time the servitude was created in 2000 – still exists. The LLC

constructed an additional building and attached this new building to the already

existing structure on the property. Second, these changes – the addition to the

existing structure, courtyard with fountain, landscaping, and fence – did not impact

the servitude area in a way so as to cause the exercise of the servitude to become

impossible. Ms. Williamson admitted that pedestrian use of the servitude has

occurred for the last twenty years. As such, we find the changes to 4858 Magazine

did not have the effect of extinguishing the servitude.

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DECREE

For the foregoing reasons, we affirm the trial court’s August 30, 2023

judgment granting Carrere’s motion for partial summary judgment.

AFFIRMED

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