James McCormick, D.D.S., and Kim Morris McCormick v. Joe E. "Butch" Ford, Jr., William "Bill" Altimus, Jerome Darby, and Carlotta Askew-Brown

Judgment rendered May 22, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,689-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

JAMES MCCORMICK, D.D.S., Plaintiffs-Appellants
AND KIM MORRIS MCCORMICK

versus

JOE E. “BUTCH” FORD, JR., Defendants-Appellees
WILLIAM “BILL” ALTIMUS,
JEROME DARBY, AND
CARLOTTA ASKEW-BROWN

*****
Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 164,341

Honorable Michael O. Craig, Judge

*****
SINCLAIR LAW FIRM, LLC Counsel for Appellants,
By: Scott C. Sinclair James McCormick,
D.D.S., Kim Morris
McCormick and MCMC
Development, LLC

NEIL ERWIN LAW, LLC Counsel for Appellee,
By: Neil T. Erwin Joe E. “Butch” Ford, Jr.

*****

Before STEPHENS, THOMPSON, and ROBINSON, JJ.

THOMPSON, J.

Homeowners, whose residence is situated on 128.75 acres in Bossier

Parish that is accessed by a private drive continuing from the end of a public

road, were denied a building permit to replace their fire-damaged home for

failure to file a subdivision plat when they originally purchased the property

in 2014. A mandamus action followed, and the district court ordered the

conditional approval of the building permit, which required the homeowners

either to build a new driveway separate from the existing private road

driveway or to dedicate the existing private driveway to public use and

construct the driveway to meet city and parish construction standards for a

public street. The homeowners now appeal, asserting that the right of the

police jury to enforce the subdivision regulations had prescribed. For the

reasons set forth more fully herein, we affirm that part of the trial court’s

judgment requiring the issuance of the building permit, but reverse that

portion of the judgment imposing any additional requirements on the

homeowners. We also reverse the trial court’s assessment of costs between

the parties and assess all court costs to the defendant police jury.

FACTS AND PROCEDURAL HISTORY

James and Kim McCormick own approximately 128.75 acres (the

“McCormick Tract”) in Bossier Parish, Louisiana, which is accessed by a

private drive that extends from a public road, called Modica Lott Road.

Where the McCormick Tract and Modica Lott Road meet, the public road

ends and a private asphalt passageway (the “private driveway”),

approximately ten feet in width, begins. The private driveway provides

passage not only to the residence on the McCormick Tract but also to

residences and tracts of land lying to the north, via a private servitude of

passage that was recorded in 1979. The private driveway is located entirely

on the McCormick Tract from the point it leaves the public road. A brief

history of the McCormick Tract and issues related thereto is instructive.

In 1975, the Bossier Parish Police Jury (“BPPJ”) passed Section 110

of the Bossier Parish Subdivision Code, which regulates subdivisions within

the parish and requires all subdivisions to be platted, registered, and

approved by the parish prior to the recordation of any sale. When there is a

division of a larger tract of property into smaller tracts, those smaller tracts

are often referred to as a “split-out.” Pursuant to the Bossier Parish

Subdivision Code, the deed to a split-out is required to have a plat

description of the property, not a metes-and-bounds description. If a

property owner does not conform to the requirements set forth in Section

110 regarding the sale and recordation of a split-out, the property owner

would be subject to monetary penalties, the withholding of approvals or

permits required by the Subdivision Code, stop orders, a temporary

restraining order or other judicial remedies, and potential prosecution in

accordance with Section 110-33 and Section 1-13 of the Bossier Parish

Subdivision Code. In 2008, BPPJ passed Ordinance 4202, which requires

homeowners to submit an application to BPPJ for the approval of a building

permit before beginning construction on a new residence.

The right of BPPJ to enforce these provisions originates in and is

controlled by La. R.S. 9:5625, which currently provides for a five-year

prescriptive period to bring an enforcement action. Applicability of this

parish ordinance to the McCormick Tract is traced back to the ancestor in

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title who owned what was a 295-acre tract. That prior owner began selling

numerous split-out tracts of various sizes and descriptions in 1977. It is

stipulated that none of these three split-outs were approved or platted under

Bossier Parish’s subdivision regulations.

In 2006, the prior owner sold 146 acres to an immediate ancestor in

title of the plaintiffs, who in turn, in 2014, sold 128.75 acres to MCMC

Development, LLC (“MCMC”), which acreage is hereinafter is referred to

as the “McCormick Tract.” Plaintiffs Kim and James McCormick are

married, but Kim is the sole member of MCMC. The deed for split-out to

the McCormicks was recorded in the Conveyance Records of Bossier Parish,

Louisiana, and failed to satisfy the subdivision regulations previously

enacted by BPPJ.

After the McCormicks’ residence was damaged by a fire in 2018, they

sought to move from that home and build a new residence on the

McCormick Tract. On December 17, 2020, they applied to BPPJ for the

issuance of a building permit for the construction of their residential home

on the private driveway. By letter dated March 29, 2021, BPPJ denied the

building permit, citing violations of the following:

• Section 110-66(b) of the Bossier Parish Subdivision Code,
which states no building permit can be issued in a subdivision
for which a final plat has not been approved and filed.

• La. R.S. 33:116, which states that when a planning
commission has adopted a major street plan, no permit shall be
issued for a building unless the street giving access to the lot
upon which such structure is proposed to be placed has
accepted or opened or has otherwise received the legal status
of a public street prior to the application.

• Bossier City Unified Development Code Section 11.4.3,
which states that all lots of a subdivision shall have frontage

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on a public street except that private streets may be approved
if built to city and parish construction standards.

In response, James and Kim McCormick and MCMC (hereinafter

collectively referred to as “the McCormicks”) filed a mandamus action, and

then, on April 15, 2021, filed an amended and restated petition, against Joe

E. Ford (“Ford”), in his official capacity as Parish Engineer for Bossier

Parish, Louisiana on behalf of BPPJ, seeking a court order requiring the

issuance of the building permit.

A bench trial on this matter began on November 22, 2022. At trial

Ford testified that in 2003, when he began working for the BPPJ, he was

tasked with investigating the illegal subdivisions in the parish, and in 2008,

an ordinance was passed that required homeowners to obtain a building

permit from the BPPJ prior to building a home. Ford testified that

McCormicks acquired ownership of the 128.75-acre McCormick Tract by

deed, which was recorded in the Conveyance Records of Bossier Parish,

Louisiana on March 10, 2014, and that this split-out would have been a

violation of the subdivision regulations at the time it was recorded.

Kim McCormick testified about the process she and her husband went

through to obtain a building permit for the McCormick Tract. She testified

that their plan is to have their home at the end of the private drive and have a

small asphalt driveway to their home. She stated that she was told by the

BPPJ that they would have to give up the private drive to the parish or the

parish would refuse to give them a building permit. James McCormick

testified that he and his wife were not aware when making land purchases

from 2003 to 2013 that they were required to get approval from the parish

for those transactions. James also testified regarding BPPJ’s expressed

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concerns related to access to the residences over the private driveway. He

described an instance when their current house caught on fire and the fire

department was able to send two trucks to battle the fire up the private

driveway with no problem. He was unaware of any parish vehicles having

trouble accessing the homes off the private driveway, including trash, fire, or

police department vehicles.

On January 6, 2023, the trial resumed. Ford took the stand again and

testified that BPPJ normally learns that a subdivision has been illegally split-

out when the landowner seeks a building permit, and the McCormicks filed

for their building permit in December of 2020. Ford testified that in his

opinion, during the six years the McCormicks owned the McCormick Tract

before seeking a building permit, there was no way for BPPJ to know that

the tract was a part of an illegal split-out. Ford testified to his concern

regarding the ability of parish vehicles to have access to the homes off the

private driveway. On cross-examination, Ford admitted that the illegal

subdivisions are made a part of the public record when they are recorded

with the parish. Ford stated that he has a small office and it is not feasible

for his staff to discover all split-outs, although he did admit that he was able

to get a stack 18 inches high of illegal split-outs from the parish tax

assessor’s office when he requested that they be pulled. Ford testified:

Q: So, when you’ve testified in today that the only way that
you have to figure out and - and become aware of split-outs
is through building permit applications; that’s not accurate
is it?

A: Well, I mean, we could go through and look at everything
that's filed, I guess, but that’s -- that has not been our
procedure. We rely on them to do their job, but then the
building permits are now catching them …

5

Q: So even though there’s other mechanisms available to you
to find out about split-outs the mechanism that you rely on
is building permits?

A: Yes, sir.

At trial, the McCormicks introduced evidence of numerous instances

of split-out tracts being sold and building permits being issued that mirror

their situation. Among those identified was the 2014 building permit issued

to the McCormicks’ neighbor, Ken Lowery, who owns property off the

private driveway and who sought a building permit from BPPJ. Although

BPPJ acknowledged that the split-offs from the private driveway were a

problem, Lowery’s building permit was granted on November 21, 2014,

with the stipulation that he had 90 days to get a public dedication of the

private driveway. Lowery never submitted the road dedication, and BPPJ

never took any action to enforce the stipulation. Lowery constructed his

home and continues to use the private drive to access his residence on the

property from Modica Lott Road.

At the conclusion of the trial, the district court ruled that BPPJ had to

issue a building permit to the McCormicks for the construction of the

residence, but made the issuance of the permit subject to their compliance

with one of the two following provisions:

1. The driveway from the public portion of Modica Lott Road to the
residence must be separate from the existing road that is the subject of
the 1979 servitude of passage, or, alternatively,

2. The driveway to the residence can use the road that is the subject of
the 1979 servitude of passage, but only if that road is:

a. publicly dedicated and the Bossier Parish police jury agrees to
maintain it, or
b. imposed to the city and parish construction standards that are
applicable under the Uniform Development Code Section 11.4,
Subsection 3.

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This appeal by the McCormicks followed.

ASSIGNMENTS OF ERROR

The McCormicks assert the following five assignments of error:

First Assignment of Error: The trial court committed legal error by
improperly resorting to equity.

Second Assignment of Error: The trial court committed legal error by
failing to properly apply La. R.S. 9:5625 to find that the McCormick
tract acquired nonconforming legal status.

Third Assignment of Error: The trial court committed legal error by
failing to properly apply La. R.S. 33:116 to find that the street giving
access to the McCormick tract is a public street.

Fourth Assignment of Error: The trial court committed legal error by
failing to direct the parish to issue the building permit to the
McCormicks without any conditions.

Fifth Assignment of Error: The trial court committed legal error by
failing to tax the parish with all costs of court.

DISCUSSION

Finding that the four first assignments of error all involve the ruling

by the trial court that the McCormicks were conditionally entitled to a

building permit, subject to certain prerequisites, we will address them

together. Next, we will address the assignment of error focused on the

assessment of costs.

At issue before us is what rights and responsibilities are incumbent on

the parties relative to the BPPJ implementing and enforcing subdivision

restrictions, and what actions required by the McCormicks relative to those

provisions and standards.

The McCormicks filed their split-out deed to the 128.75-acre

McCormick Tract with the Bossier Parish clerk of court on March 10, 2014,

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which included a metes-and-bounds description of the property. During his

testimony, Ford confirmed this recordation of only this metes-and-bounds

description was a violation of the applicable subdivision ordinances. BPPJ

has argued that the McCormick Tract could not be issued a building permit

because it did not comply with Chapter 110 of the Bossier Parish Code of

Ordinances and Section 11.4.3 of the Bossier City-Parish Unified

Development Code. La R.S. 9:5625 states, in pertinent part:

A. (1) All actions civil or criminal, created by statute,
ordinance, or otherwise, … which may be brought by
parishes, municipalities, or their instrumentalities or by any
person, firm, or corporation to require enforcement of and
compliance with any zoning restriction, building restriction,
or subdivision regulation, imposed by any parish,
municipality, or an instrumentality thereof, and based upon
the violation by any person, firm, or corporation of such
restriction or regulation, must be brought within five years
from the first act constituting the commission of the
violation.

…

B. In all cases where the prescription provided for herein has
accrued, the particular property involved in the violation of
the zoning restriction, building restriction or subdivision
regulation shall enjoy the same legal status as land uses,
construction features of buildings or subdivisions made
nonconforming by the adoption of any zoning restriction,
building restriction or subdivision regulation.

(emphasis added). In its written reasons for judgment, the trial court stated

that Ford “acknowledged that as parish engineer, he had access to [the illegal

subdivision deeds] but due to the large volume of recording and extremely

limited staff it was impossible to keep up with by going behind the filings to

check compliance.” The court then noted that Ford testified that building

permits had been issued to other homeowners on the private road extension

of Modica Lott Road, both before and after the 2008 permit law came into

8

effect. The court also noted the 2014 dispute between BPPJ and Lowery,

wherein Lowery was eventually granted a building permit subject to the

caveat that he obtain a 60-foot right of way dedicated to the public on the

private driveway. The court further noted the attempt in 2019 by a

neighboring property owner to have the private driveway dedicated to the

public use. The court ultimately found that:

BPPJ does not have a reasonable ability to research every filing
with the Bossier Parish Clerk of Court to determine compliance
by individual property owners. The applicable period that
applies to [the McCormicks] as to their tract of property is the
attempt by John Good in 2019 to dedicate the private drive.

We disagree. It is apparent from the record and from testimony that

BPPJ has set up the issuance of building permits as an effective “choke

point” to enforce subdivision regulations, when purchasers must submit

themselves to the arduous and expensive undertaking of obtaining

permission from the BPPJ to build on these “illegal subdivision of tracts.”

That policy decision, while perhaps economical, is based on the apparent

calculated risk that the majority of purchasers of split-out tracts would seek

to build their residence within the five years1 permitted to seek such

enforcement. BPPJ would effectively have a window of time during which

property owners must come before it, ask permission, and pay a fee to build

a home on their own property. That calculated risk comes with the actual

risk that some property owners may not seek a building permit within the

time period during which BPPJ has a legal remedy. The issue, therefore,

becomes exactly what action, and therefore what date, is sufficient to trigger

notice of the violation and the running of prescription for enforcement of the

1
La. R.S. 9:5625

9

subdivision regulations. When should BPPJ be deemed to have notice of the

violation of the subdivision regulations so that prescription began to run?

The McCormicks argue that prescription began to run in 2014, when

they filed their deed for the illegally subdivided McCormick Tract in the

registry of the clerk of court. BPPJ argues its notice of the violation would

be the date of the application of building permit or no earlier than 2019,

when a neighbor of the McCormicks unsuccessfully sought to have the

private drive dedicated to public and the issue again came to the attention of

BPPJ. Rather than agreeing to that request, the McCormicks purchased the

property of that neighbor and, thus, ended that application for a building

permit for that property from BPPJ. We agree with the McCormicks that the

action of violation of the subdivision regulations was the recordation in the

public records of the meets-and-bounds deed by which they acquired

ownership of the McCormick Tract in violation of the applicable subdivision

restrictions.

La R.S. 9:5625(A)(1) is clear that the five-year prescriptive period

begins to run “from the first act constituting the commission of the

violation.” That act was the filing of the illegal subdivision deed, described

in metes and bounds, in the parish registry on March 10, 2014 by the

McCormicks, in violation of Sections 110-63 and 110-194 of the subdivision

ordinances, which require any person who subdivides land to obtain the

approval of the police jury before the recordation of a subdivision and before

the sale of any subdivided property. The McCormicks did not obtain such

approval and recorded in the public records their nonconforming deed. Such

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an act is sufficient to put BPPJ on notice and to begin the tolling of

prescription of the right to enforce the regulations.

Although enforcement of the illegal subdivisions may be onerous for

the BPPJ, to say that prescription does not begin to run until such time as the

parish decides it would like to investigate violations does not comport with

Louisiana law, which is clear that the recordation of a deed translative of

title is notice to third parties of the contents of that deed. This court has held

that all persons are held to have constructive notice of the existence and

contents of recorded instruments affecting immovable property. Compass

Energy Operating, LLC v. Robena Prop. & Royalty Co., Ltd., 52,468 (La.

App. 2 Cir. 2/27/19), 265 So. 3d 1160; Thomas v. Lewis, 475 So. 2d 52 (La.

App. 2 Cir. 1985). For example, recordation of title is considered an overt

and unambiguous act that, along with acts of possession, can constitute

notice for adverse possession in Louisiana. Cockerham v. Cockerham,

44,578 (La. App. 2 Cir. 8/19/09), 16 So. 3d 1264.

Considering the above, the trial court erred in finding that prescription

did not begin to run until 2019, when neighboring property owners

attempted to dedicate the private drive to the public. There is clear evidence

in the record that the BPPJ had been aware of the illegal subdivisions off

Modica Lott Road since at least 2008. The trial court itself noted in its

written reasons for judgment that the BPPJ attempted to have the private

drive publicly dedicated in 2014 during its dispute with Lowery. Applying

the plain language of La R.S. 9:5625(A)(1), prescription began to run as of

the date of the violation, and the public notice of the violation occurred on

March 10, 2014, when the deed was recorded in the public record.

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Accordingly, pursuant to La. R.S. 9:5625(B), on March 10, 2019, five years

after the violation occurred, BPPJ lost its ability to enforce the subdivision

regulations on the McCormick Tract. La. R.S. 9:5625(B) provides that after

prescription runs, the illegal subdivision is grandfathered in on all

subdivision regulations. As such, the McCormick Tract is not required to

conform to the subdivision regulations sought to be enforced by BPPJ.

The trial court also found that the McCormick Tract violated La. R.S.

33:116, which states, in pertinent part:

When a planning commission has adopted a major street plan,
no structure shall be erected on any lot within the affected area,
nor shall a building permit be issued therefor unless the street
giving access to the lot upon which such structure is proposed
to be placed has been accepted or opened as or has otherwise
received the legal status of a public street prior to that time, or
unless such street corresponds with a street shown on the
official master plan or with a street on a subdivision plat
approved by the planning commission or with a street on a
street plat made by and adopted by the commission or with a
street accepted by the local legislative body, after submission to
the planning commission, by a favorable vote required in R.S.
33:115.

The record indicates that the parties stipulated the McCormick Tract abuts

and is directly connected to Modica Lott Road. The trial court stated that the

McCormick Tract “fronts directly on Modica Lott Road which as previously

discussed is a public road.” Although the McCormicks’ proposed home

would be at the end of the private drive, they own the entire lot, including

the private drive, that abuts a public road. It may be a long private

driveway, but it is a private driveway that abuts a public road, nonetheless.

As such, there was error by the court below, and we find the McCormick

Tract to be in compliance with La. R.S. 33:116.

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Additionally, the trial court declared that its ruling is “based as much

on an equitable resolution as on application of existing law. Part of that

equity decision has to take into account the other current and future property

owners that live along the private drive in question and will be directly

impacted by the decision of this court.” While this Court acknowledges that

the private driveway is used by others to access their respective properties,

that fact is of no legal consequence here, as it relates to the McCormicks and

the McCormick Tract. Those other homeowners are not a party to this suit.

The equitable resolution fashioned by the trial court, while admirable in its

attempt to craft a mutually beneficial resolution to all involved in the

dispute, is inappropriate in the present case. La. C.C. art. 4; Saloom v. Dep’t

of Trans. & Dev., 22-00596 (La. 12/9/22), 354 So. 3d 1179; Donelon v.

Shilling, 19-00514 (La. 4/27/20), 340 So. 3d 786, cert. denied, 141 S. Ct.

1508, 209 L. Ed. 2d 187 (2021).

As a part of its equitable resolution, the trial court granted the

McCormicks’ building permit but subjected it to the following conditions, as

outlined in its written reasons for ruling:

1. McCormick shall construct the driveway leading to the
proposed construction from the small portion of the public road
Modica Lott Road connecting directly to the proposed home. In
doing so, they are in compliance with La. R.S. 33:116; or,
alternatively,

2. McCormick shall either dedicate the private drive for public use
and maintenance by BPPJ; or build the private drive to the
standards required by UDC code 11.4 and have said plan
approved by the appropriate governing body.

The Louisiana Constitution Article 1, Section 4 states that “every

person has a right to acquire, own, control, use, enjoy, protect, and dispose

of private property.” It further states that a person’s property shall not be

13

taken or damaged by the state or its political subdivisions except for public

purposes and with just compensation paid to the owner or into court for his

benefit. La. Const. Art. 1, §4. The constitution requires the State to pay just

compensation, to the full extent of the loss, when it takes property. Larkin

Dev. North, LLC v. City of Shreveport, 53,374 (La. App. 2 Cir. 3/4/20), 297

So. 3d 980, writ denied, 20-01026 (La. 12/22/20), 307 So. 3d 1039. This

mandate is required both when the state takes land through court

proceedings (expropriation) or damages land (inverse condemnation). Id.

As noted above, the McCormick Tract is in compliance with La. R.S.

33:116, and therefore, the first condition imposed on the McCormick Tract

is unnecessary. As to the second condition set forth by the trial court, we

determined above that the McCormick Tract acquired the same legal status

as a legal subdivision pursuant to the expiration of prescription of La. R.S.

9:5625 on March 10, 2019, five years after recordation of the McCormick

Tract split-out tract deed. As such, the parish cannot require the

McCormicks to have a plat approved by BPPJ, dedicate a minimum width

for a street right of way, bring the street up to minimum parish standards,

dedicate the street to the public, or other requirements set forth in the

subdivision ordinances. To allow the trial court to force parish subdivision

standards on the McCormick Tract when the BPPJ allowed its right to

enforce those standards to prescribe would be authorizing an

unconstitutional taking of the McCormicks’ property rights. Therefore, the

trial court’s conditions placed on the McCormicks’ building permit are not

authorized by law. We find the first four assignments of error have merit,

14

and reverse the judgment of the trial court, insofar as it placed any

conditions on the McCormicks’ building permit.

Lastly, the McCormicks argue in their fifth assignment of error that

the trial court erred in failing to tax the parish with all costs of court.

Louisiana C.C.P. art. 1920 provides that, except as otherwise provided by

law, the court may render judgment for costs, or any part thereof, against

any party, as it may consider equitable. Mullenix v. Mullenix, 54,827 (La.

App. 2 Cir. 1/11/23), 355 So. 3d 1140. The allocation of court costs among

the parties is a matter which is subject to the discretion of the trial court, and

its allocation of those costs will not be disturbed absent evidence of an abuse

of discretion. Id.; Jackson v. Herring, 48,019 (La. App. 2 Cir. 5/22/13), 114

So. 3d 1245, writ denied, 13-1452 (La. 9/27/13), 123 So. 3d 727.

Here, the trial court ruled that each party shall bear their own costs of

the trial court proceedings, as part of a ruling in which it attempted to afford

each party some measure of success in equity. Having found the

undergirding of the judgment itself in attempting to provide for equity over

law to have been in error regarding the allocation of court costs, we find this

assignment of error to likewise have merit. The division of court costs by

the district court to track its erroneous ruling was an abuse of discretion, and

we hereby reverse and render on that issue, casting BPPJ with all costs of the

proceeding.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s ruling insofar as

it grants the building permit to the McCormicks and reverse the trial court’s

ruling insofar as it put any conditions on the issuance of the building permit.

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We likewise reverse the trial court’s assessment of court costs and assess all

costs to Joe E. “Butch” Ford, in his official capacity as Parish Engineer for

Bossier Parish, Louisiana. Costs of this appeal, in the amount of $430, are

assessed to Joe E. “Butch” Ford, in his official capacity as Parish Engineer

for Bossier Parish, Louisiana.

AFFIRMED IN PART; REVERSED IN PART.

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