Thibco Investments, LLC v. Robert Thibodeaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-427

THIBCO INVESTMENTS, LLC

VERSUS

ROBERT THIBODEAUX

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2010-10607
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

Julius W. Grubbs, Jr.
Haik, Minvielle & Grubbs, LLP
Post Office Box 11040
New Iberia, LA 70562-1040
(337) 365-5486
COUNSEL FOR DEFENDANT/APPELLEE:
Robert Thibodeaux

Edward J. Milligan, Jr.
J. Brent Barry, LLC
Post Office Box 82294
Lafayette, LA 70508
(337) 237-6491
COUNSEL FOR PLAINTIFF/APPELLANT:
Thibco Investments, LLC

AMY, Judge.

The plaintiff’s estate is subject to a servitude of passage. The plaintiff filed

suit, seeking to enforce a provision of the servitude requiring the defendant to pay to

relocate the servitude and the roadway. The defendant filed exceptions of no right of

action and non-joinder of an indispensable party. The trial court granted the exception

of no right of action. This appeal follows. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, Edith David Daigle and Lowray J. Chachere owned

adjacent parcels of property in St. Landry Parish. At the hearing on the exception,

now at issue, the parties to this litigation agreed that Lot No. 1, which was owned by

Mr. Chachere, was enclosed. Ms. Daigle, who owned Lot No. 3, granted Mr.

Chachere a right of passage across her property. The document creating the right of

passage, which was executed in 1982, states, in relevant part:

It is understood that this right of passage is to be exercised over the
existing private road, a portion of which is shown on the plat of survey
referred to above and shall at no time exceed thirty (30) foot [sic] in
width. It is understood that grantee, his successors and assigns shall at
all times maintain and make necessary repairs, at his or their own
expense, should the roadway require same for its proper upkeep and
maintenance.

Grantor reserves the right to require grantee, his successors and
assigns, to relocate the private road and right of passage one time, at
grantee’s expense. The location of the relocated road and right of
passage shall not be more onerous or inconvenient to grantee.

The right of passage shall run with the land and not be a personal
servitude.

The record indicates that Ms. Daigle’s property, Lot No. 3, was subsequently

divided. Ms. Daigle’s successors-in-title are the plaintiff, Thibco Investments, LLC,

and Paul H. Comeaux, Sr. Thibco owns the portion of Lot No. 3 containing the

private road and right of passage. The defendant, Robert Thibodeaux, is the

successor-in-title to Mr. Chachere and owns the entirety of Lot No. 1.
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Thibco filed this suit seeking to enforce the provision of the right of passage

requiring Mr. Thibodeaux to relocate the private road and right of passage at Mr.

Thibodeaux’s expense. Mr. Thibodeaux filed exceptions of no right of action and

non-joinder of an indispensable party, asserting that the relocation clause was personal

and did not run with the land and that Thibco had failed to join Mr. Comeaux and

SLEMCO, who both hold rights of passage across the existing road. After a hearing,

the trial court issued written reasons for judgment finding that the relocation clause

was unenforceable as it impermissibly altered the Louisiana Civil Code articles

addressing rights of passage. The trial court entered judgment sustaining the

exception of no right of action.1

The plaintiff appeals asserting as error that, “[t]he trial court’s granting of the

defendant’s peremptory exception of no right of action, dismissing the plaintiff’s

claims, is manifestly erroneous.”

Discussion

No Right of Action

Mr. Thibodeaux filed the exception of no right of action on the basis that the

provision requiring Mr. Thibodeaux to pay to relocate the private road was a right

personal to Ms. Daigle and not a predial servitude. Thibco contended that, read in its

entirety, the document creating the right of passage contemplated that the relocation

clause was a heritable and not personal right. However, the trial court did not reach

the issue of whether the relocation clause was intended to be personal or heritable,

finding that the provision was invalid as it impermissibly altered the general codal

rules concerning predial servitudes.

1
We note that at the hearing on the exceptions, the trial court orally granted the exception of
non-joinder of an indispensable party. However, in his written reasons for judgment, the trial court
did not reach that issue. Further, the trial court made no mention of the exception of non-joinder in
the judgment. As the plaintiff does not assign error to the trial court’s ruling on that issue, we do not
address it herein. See Uniform Rules—Courts of Appeal, Rule 1-3.
3

The supreme court addressed the function and appellate review of exceptions of

no right of action in Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-

2272, 10-2275, 10-2279, 10-2289, pp. 6-7 (La. 10/25/11), 79 So.3d 246, 255-56

(footnotes omitted), stating:

By filing a peremptory exception of no right of action, a defendant
challenges whether a plaintiff has such a real and actual interest in the
action. La. C.C.P. art. 927(A)(6). At the hearing on the exception of no
right of action, the exception may be submitted on the pleadings, or
evidence may be introduced either in support of or to controvert the
objection raised when the grounds thereof do not appear from the
petition. La. C.C.P. art. 931.

“The function of the exception of no right of action is to determine
whether the plaintiff belongs to the class of persons to whom the law
grants the cause of action asserted in the suit.” Hood v. Cotter, 2008-
0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829. An appellate court
reviewing a lower court’s ruling on an exception of no right of action
should focus on whether the particular plaintiff has a right to bring the
suit and is a member of the class of persons that has a legal interest in the
subject matter of the litigation, assuming the petition states a valid cause
of action for some person. Id.; Badeaux v. Southwest Computer Bureau,
Inc., 2005-0612, p. 6-7 (La. 3/17/06), 929 So.2d 1211, 1217; Turner v.
Busby, 2003-3444, p. 4 (La. 9/9/04), 883 So.2d 412, 415-416; Reese v.
State, Dept. of Public Safety and Corrections, 2003-1615, p. 3 (La.
2/20/04), 866 So.2d 244, 246.

The determination whether a plaintiff has a right to bring an action
raises a question of law. A question of law requires de novo review.
Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc.,
2006-0582, p. 9 (La. 11/29/06), 943 So.2d 1037, 1045.

Pursuant to La.Civ.Code art. 646, “[a] predial servitude is a charge on a servient

estate for the benefit of a dominant estate.” Further, “[t]here must be a benefit to the

dominant estate.” La.Civ.Code art. 647. “The predial servitude continues as a charge

on the servient estate when ownership changes.” La.Civ.Code art. 650(B). As

explained in the Louisiana Civil Law Treatise, a servitude may not be “imposed on an

estate in its own favor; nor may a predial servitude be imposed on a person in favor of

an estate; and, if a servitude is imposed on an estate in favor of a person rather than

another estate, it is a personal servitude.” A.N. Yiannopoulos, Predial Servitudes § 9

4

at 31, in 4 Louisiana Civil Law Treatise (3rd ed. 2004)(footnotes omitted). An

example of a predial servitude is a right of passage. Dupont v. Hebert, 06-2334

(La.App. 1 Cir. 2/20/08), 984 So.2d 800, writ denied, 08-640 (La. 5/9/08), 980 So.2d

985.

“Predial servitudes may be established by an owner on his estate or acquired for

its benefit. The use and extent of such servitudes are regulated by the title by which

they are created, and, in the absence of such regulation, by the following rules.”

La.Civ.Code art. 697. However, Comment (b) to Article 697 notes that:

Owners have the right to establish on their estate, or to acquire for
the benefit of their estate, such predial servitudes as they deem proper.
This freedom, however, is tempered by the rules of public policy enacted
in the general interest. C.C. art. 11. Apart from general limitations, the
creation of predial servitudes by juridical act is subject to special rules
that are largely insusceptible of modification by agreement. These rules,
limiting contractual and testamentary freedom, are designed to effect a
balance between individual demands for the recognition of modification
of property rights to suit individual needs and social demands for the
preservation of a relatively simple system of unencumbered property.
See Yiannopoulos, Real Rights: Limits of Contractual and Testamentary
Freedom, 30 La.L.Rev. 44 (1969).

Because they form restraints on the free disposal and use of property, predial

servitudes are in derogation of public policy and are not entitled to be viewed with

favor by the law and can never be sustained by implication. St. Andrews Place, Inc. v.

City of Shreveport, 40,260 (La.App. 2 Cir. 11/4/05), 914 So.2d 1203 (citing

Palomeque v. Prudhomme, 95-0725 (La. 11/27/95), 664 So.2d 88). Thus, “[d]oubt as

to the existence, extent or manner of exercise of a servitude must be resolved in favor

of the estate claimed to be burdened by the servitude.” Id. at 1210. In creating a

servitude, the parties may limit the extent and mode of using a servitude of passage.

Sanders v. Plaquemines Cable TV, Inc., 407 So.2d 524 (La.App. 4 Cir. 1981).

At the hearing on the exceptions, both Thibco and Mr. Thibodeaux conceded

that Mr. Thibodeaux’s property was originally an enclosed estate. Pursuant to

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La.Civ.Code art. 689, the owner of an enclosed estate may claim a right of passage

over neighboring property to the nearest public road. However, “[t]he owner of the

enclosed estate has no right to the relocation of this servitude after it is fixed. The

owner of the servient estate has the right to demand relocation of the servitude to a

more convenient place at his own expense, provided that it affords the same facility to

the owner of the enclosed estate.” La.Civ.Code art. 695. The 1977 Revision

Comment to Article 695 notes that this provision “changes the law as it makes

relocation of the passage more burdensome for the owner of the servient estate.”

Further, Louisiana Civil Code Article 748 contemplates that “[t]he owner of the

servient estate may do nothing tending to diminish or make more inconvenient the use

of the servitude.” Article 748 also reiterates that the expenses for relocation of the

servitude are borne by the owner of the servient estate.

The provision of the document creating the right of passage at issue states:

Grantor reserves the right to require grantee, his successors and
assigns, to relocate the private road and right of passage one time, at
grantee’s expense. The location of the relocated road and right of
passage shall not be more onerous or inconvenient to grantee.

As stated in Comment (b) to Article 697, “[a]part from general limitations, the

creation of predial servitudes by juridical act is subject to special rules that are largely

insusceptible of modification by agreement.” As observed by the trial court, the

clause limits to “one time” the servient estate’s right to the relocation of the right of

passage and the private road. However, “[t]he right of the owner of the servient estate

to demand relocation of the servitude is imprescriptible.” Yiannopoulos, Predial

Servitudes § 159 at 440. Additionally, as observed by Professor Yiannopoulos,

“[p]redial servitudes are perpetual in the sense that, if properly used, they do not

terminate upon the lapse of any period of time.” Id., § 10 at 35. Thus, the relocation

clause attempts to limit the servient estate owner’s right to relocate the right of

6

passage and the roadway. We also note that the cost allocation provisions contained

in Articles 695 and 748, evince a clear preference that relocation of a servitude of

passage be “more burdensome for the owner of the servient estate.”

Accordingly, we find that the clause restricting relocation of the right of

passage and the private road and shifting the allocation of costs to the owner of the

dominant estate is unenforceable as a predial servitude.2 Accordingly, Thibco does

not have an interest in enforcing the provision, and we find no error in the trial court’s

grant of the exception of no right of action.

This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment sustaining

exception of no right of action filed by the defendant, Robert Thibodeaux. Costs of

this appeal are allocated to the plaintiff, Thibco Investments, LLC.

AFFIRMED.

2
Although not directly analogous to the facts of this case, in LeBlanc v. Thibodeaux, 615
So.2d 296 (La.1993) (citing Rockholt v. Keaty, 237 So.2d 663 (La.1970), the supreme court noted
that there is a strong public policy discouraging landlocking.
7