Ldk Investments, Inc. v. Robert Mayo Amons, III

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1076

LDK INVESTMENTS, LLC

VERSUS

ROBERT MAYO AMONS, III, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 229,652
HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Charles G. Gravel
Gravel, Cespiva, & Wilkerson
Post Office Box 1792
Alexandria, Louisiana 71309-1792
(318) 487-4501
Counsel for Defendants/Appellees:
Paul and Charmin Weis
Perry and Tia Jamison

James C. Downs
Attorney at Law
Post Office Box 269
Alexandria, Louisiana 71301-0269
(318) 448-3439
Counsel for Defendants/Appellants:
Opal Amons
Tammy Amons
Robert Amons, Jr.
Robert Amons, III

William M. Ford
Susan Ford Fiser
Attorneys at Law
Post Office Box 12424
Alexandria, Louisiana 71315-2424
(318) 442-8899
Counsel for Plaintiff/Appellee:
LDK Investments, LLC

Gregory N. Wampler
Lemoine & Wampler
607 Main Street
Pineville, Louisiana 71360
(318) 473-4220
Counsel for Defendants/Appellants:
John and Judy Jameson
Edna Jameson
James Jameson, Jr.
Larry and Dawn Jameson
Gene and Linda Gunter

KEATY, Judge.

In this suit by the owner of a landlocked estate for predial servitude across

its neighbors’ properties, the trial court granted Plaintiff the relief it sought without

conducting a full hearing or determining that the servitude granted was the least

injurious to the landowners and the shortest distance to the nearest public road. It

also failed to address whether damages were owed to Defendant pursuant to

La.Code Civ.P. art. 689, and, if so, how much was owed. For the following

reasons, we reverse the trial court’s judgment and remand the matter for further

proceedings.

Facts and Procedural History

Plaintiff, LDK Investments, LLC (LDK), owns a piece of property on

Catahoula Lake that is allegedly landlocked. Defendants, Robert Mayo Amons, III

and eighteen others, are the owners of three contiguous tracts of land between D.

Nugent Road and the LDK property. The first tract of land immediately east of the

LDK property (the Jameson tract) is owned by Larry E. Jameson, Dawn K.

Jameson, James R. Jameson, Jr., Edna S. Jameson, John G. Jameson, Judy H.

Jameson, Gene H. Gunter, and Linda F. Gunter. The second tract of land (the

Weis tract) lies south of the Jameson tract and is owned by Perry Jamison and Paul

Weis, and their wives, Tia Basco Jamison and Charmin Basco Weis. The third

tract of land (the Amons tract) lies south of the Weis tract and fronts D. Nugent

Road, a gravel road maintained by the parish. The Amons tract is owned by

Robert Mayo Amons, III, Robert Mayo Amons, Jr., and Opal O. Amons.

Historically, according to Plaintiff, the LDK property was accessed by

traveling from D. Nugent Road through all three tracts of land along a gravel

pipeline road and then across the Jameson tract to the LDK property. Several of

the Defendants installed a gate with a keyed lock on the route, which prohibited

Plaintiff from accessing its property using that particular route. LDK filed suit

against Defendants, seeking a permanent predial servitude “for passage and for

utilities” along the route that owners of the LDK property have historically used;

that is, from D. Nugent Road, along the pipeline gravel road through the Amons

tract, the Weis tract, and the Jameson tract and then across the Jameson tract to the

LDK property.

Robert M. Amons, III, Robert M. Amons, Jr., and Opal Nugent Amons filed

a joint written response to Plaintiff’s petition in which they contested the suit,

arguing that the gravel pipeline road is private, that the land through which the

road crosses has been fenced off and is used as pasture for horses, and that LDK’s

use of the road would destroy their livelihood. They asserted that utilities were not

available down D. Nugent Road, which is a poorly maintained parish road used

only by fishermen and hunters, and that there are at least two other roads (Hickory

Grove Loop and Ivan Normand Road) that are closer to the LDK property than D.

Nugent Road.

LDK then filed a first supplemental and amending petition, naming

additional individuals as defendants. Edwin Ray Belgard and Brenda Paulk

Belgard filed a joint written response that seemed to suggest that their property is

not one of the three tracts upon which LDK was seeking to establish a predial

servitude.

Two formal answers were filed: one by Larry E. Jameson and nine other

Defendants, and one by Perry E. Jamison, Tia Basco Jamison, Paul Weis, and

Charmin Basco Weis.

On June 23, 2008, LDK filed for a preliminary default against six of the

Defendants, Norman Ambrose, III, Bonnie Ryder Ambrose, Robert M. Amons, Jr.,

Opal Nugent Amons, Edwin Ray Belgard, and Brenda Paulk Belgard, alleging that
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they did not file an answer with the court. On June 25, 2008, the preliminary

default was granted. The preliminary default judgment was not confirmed.

Trial was set for February 26, 2009. The day before trial, Defendants filed a

peremptory exception of non-joinder of a necessary party, which was set for

hearing on March 16, 2009. At trial, after Plaintiff introduced several exhibits,1

the parties entered into a stipulation that was to become an interim order of the

court. The parties stipulated that an interim predial servitude would be granted

along the pipeline road, during which time Plaintiff would receive keys to the

gates, that a survey would be completed of the properties in question to determine

the shortest and least injurious method of accessing Plaintiff’s property, and that

the parties would meet again with the court subsequent to the completion of the

survey. All subpoenas were extended indefinitely, and the interim order was

signed on April 22, 2009.

After the surveys were completed, Plaintiff filed a rule for entry of judgment

of servitude, which was set for May 23, 2011. On May 9, 2011, Defendants filed a

motion to set its exception of non-joinder of a necessary party for hearing. It also

filed an exception of prematurity, unauthorized use of summary proceedings, and

no cause of action. The exceptions were set to be heard on August 22, 2011.

At the hearing on Plaintiff’s rule for entry of judgment, the trial court heard

argument from counsel, including arguments from the defense counsel that

exceptions were pending, that a judgment could not be decided until the exceptions

were heard, and that the trial was not concluded so rendering judgment would be

improper. The trial court made several statements concerning the disposition of

the case and agreed to give Defendants ten days to file briefs explaining their

positions on the servitude and exceptions before rendering judgment.

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Although introduced into evidence, these exhibits were never authenticated.
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On May 27, 2011, only four days after the hearing, the trial court rendered

judgment in favor of Plaintiff, said judgment granting a non-exclusive predial

servitude across Defendants’ property in favor of Plaintiff’s property. The

judgment further cast the survey fees as costs, dismissed all outstanding claims and

demands, and split costs in individual proportions by the individual parties.

Issues

The Amons and Jameson Defendants have appealed, assigning between

them four errors for our review. First, they assert that the trial court erred in

overruling the Defendants’ exceptions of non-joinder of a necessary party,

prematurity, no cause of action, and unauthorized use of summary proceedings.

Second, they assert that the trial court erred in determining that the February 26,

2009 hearing was a complete trial on the merits. Third, they assert that the trial

court erred in granting LDK a permanent servitude without a trial. Finally, they

assert that even if the February 26, 2009 hearing is interpreted to be a full and

complete trial, the trial court erred in granting LDK a permanent servitude when it

failed to allege in its petition that the proposed route was the shortest route from

the LDK property to the nearest public road and when evidence suggests that there

are shorter options available.

Standard of Review

This case presents questions of law. Questions of law are reviewed de novo.

Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. In conducting

a de novo review, appellate courts “determine whether the trial court was legally

correct or legally incorrect. If the trial court’s decision was based on its erroneous

interpretation of application of the law, rather than a valid exercise of discretion,

such incorrect decision is not entitled to deference by the reviewing court.” Id. at

657 (quoting Citgo Petroleum Corp v. Frantz, 03-88, pp. 3-4 (La.App. 3 Cir.
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6/4/03), 847 So.2d 734, 736, writ denied, 03-1911 (La. 10/31/03), 857 So.2d 484).

Further, appellate courts do not assign special weight to the trial court when

conducting a de novo review of legal questions before rendering judgment based

on the record. Id.

Discussion

A predial servitude is a charge on a servient estate for the benefit of a

dominant estate. La.Civ.Code art. 646. “The owner of an estate that has no access

to a public road may claim a right of passage over neighboring property to the

nearest public road. He is bound to indemnify his neighbor for the damage he may

occasion.” La.Civ.Code art. 689. Further, the dominant estate owner “may not

demand the right of passage anywhere he chooses. The passage generally shall be

taken along the shortest route from the enclosed estate to the public road at the

location least injurious to the intervening lands.” La.Civ.Code art. 692. “A two-

step analysis is required by article 692, former article 700. First to be determined

is which estate owes the servitude of passage. Only then should the courts engage

in a balancing test to determine where on the servient estate the passage should be

located.” May v. Miller, 06-418, p. 6 (La.App. 3 Cir. 10/11/06), 941 So.2d 661,

666, writ denied, 07-09 (La. 3/9/07), 949 So.2d 443 (citing Davis v. Culpepper,

34,736, pp. 7-9 (La.App. 2 Cir. 7/11/01), 794 So.2d 68, writ denied, 01-2573 (La.

12/14/01), 804 So.2d 646 (citations omitted)). “In the absence of exceptional

circumstances, it is only the estate that provides the shortest access to the nearest

public road that will be burdened with the servitude.” Id. at 667.

The first exception recognized by the jurisprudence is when the
estate which provides the shortest route is covered by water or is
otherwise not accessible year round. The second derogation from the
general rule is when the costs associated with crossing the estate
which is the shortest distance from the public road are so exceptional
that from a practical standpoint it is economically unfeasible to build.

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As set forth above, courts should first determine which estate
owes the servitude. The shortest straight line distance to the nearest
public road determines which estate owes the servitude. The party
arguing that the servitude should instead be imposed on another estate
bears the burden of establishing that one o[f] the two exceptions is
applicable.

Id. (citations omitted).

We begin our analysis by focusing on Defendants’ first assignment of error,

that the trial court erred in overruling the exceptions of non-joinder of a necessary

party, prematurity, no cause of action, and unauthorized use of summary

proceedings. “The declinatory exception, the dilatory exception, and the

peremptory exception when pleaded before or in the answer shall be tried and

decided in advance of the trial of the case.” La.Code Civ.P. art. 929(A). A hearing

is mandated on the exceptions in advance of trial when an answer has not been

filed; when an answer has been filed, the trial court may refer the exceptions to the

trial on the merits in lieu of a separate hearing. Short v. Giffin, 94-1757 (La.App. 4

Cir. 11/17/94), 648 So.2d 937, writ denied, 95-684 (La. 6/16/95), 656 So.2d 1008.

It is clear from the record that there was not a trial on any of the exceptions filed

by Defendants. The record also supports the conclusion that the trial court did not

refer any of the exceptions to the trial on the merits. Accordingly, the trial court

erroneously overruled Defendants’ exceptions.

In their next assignment of error, Defendants argue that the trial court

inappropriately rendered judgment prior to the completion of trial. We agree.

There are three general modes of procedure for obtaining judicial resolution to

civil disputes; ordinary, summary, and executory. La.Code Civ.P. art. 851.

Ordinary proceedings are used in district court in all cases, except as otherwise

provided by law. Id. Neither summary nor executory proceedings are

procedurally proper means to establish a predial servitude under La.Civ.Code art.

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692. See La.Code Civ.P. arts. 851, 2591, and 2631. In ordinary proceedings, final

judgments are generally obtained after a trial, in which evidence was adduced. In

some specific instances final judgments are granted upon written motions such as a

motion for judgment on the pleadings or a motion for summary judgment. No such

motion was filed into the record in the instant suit. It is clear to this court that the

parties intended to try the matter.

A trial requires that both plaintiff and defendant present evidence to support

their arguments. La.Civ.Code art. 1632. In the instant case, Plaintiff introduced

evidence. The parties then entered into a stipulation that became an interim order

of the court on April 22, 2009. The record supports the conclusion that both

parties knew the stipulation was a temporary solution and that they would be

coming back for the full hearing wherein each would be able to offer evidence in

support of its position if they could not reach an agreement. Plaintiff went so far as

to ask that the court extend the subpoenas issued for that hearing until the matter

could be reset.

Defendants were not given an opportunity to introduce evidence or

testimony in support of their position after the necessary survey was completed.

The final judgment rendered was based solely on the exhibits that were introduced,

but never authenticated by Plaintiff, and argument from counsel. Indeed, in its

brief to this court, Plaintiff states, “[p]lease see the eleven exhibits of Petitioner for

all the proof needed at trial.” Yet, Plaintiffs never filed a motion for judgment on

the pleadings or motion for summary judgment, which would have allowed them to

submit their case without a trial. Because they did not choose either of those

procedural avenues to seek resolution and instead had their matter set for a hearing,

it was improper for the trial court to render judgment absent a full trial.

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Disposition

For the foregoing reasons, we reverse the entirety of the judgment and

remand the matter for further proceedings consistent with this opinion. We need

not address the remaining assignments of error, as our decision has rendered them

moot. Costs are assessed against Plaintiff/Appellee, LDK Investments, LLC.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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