Nola Bourbon, LLC v. Rodriguez-Franco

324 So.3d 709

NOLA BOURBON, LLC

v.Jorge RODRIGUEZ-FRANCO and Lillian Benitez

NO. 2021-CA-0023

Court of Appeal of Louisiana, Fourth Circuit.

June 23, 2021

Scott M. Galante, Salvador I. Bivalacqua, Lauren B. Griffin, GALANTE & BIVALACQUA LLC, 650 Poydras Street, Suite 2615, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE

Vincent J. Booth, BOOTH & BOOTH, APLC, 138 North Cortez Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )

This is a property rights dispute between the owners of two adjoining properties. The properties are located in the historic New Orleans French Quarter. This dispute arises out of the use, access, and rights relating to an alleyway that runs between the adjoining properties (the "Alley"). The plaintiff—Nola Bourbon, LLC—owns the "Dominant Estate"; the defendant—Lillian Benitez¹ —owns the "Servient Estate." See Morgan City Land v. Tennessee Gas Pipeline Co., L.L.C ., 20-0676, pp. 10-11 (La. App. 4 Cir. 4/21/21), 319 So.3d 437, 445 (observing that "[t]he party that benefits from the predial servitude—here [Nola Bourbon]—is the dominant estate; and the party burdened by the servitude—here [Ms. Benitez]—is the servient estate"). This is the second appeal in this case. Nola Bourbon, LLC v. Rodriguez-Franco , 17-1002 (La. App. 4 Cir. 4/18/18), 243 So.3d 693 (" Nola Bourbon I ").

In Nola Bourbon I , Ms. Benitez appealed the trial court's September 13, 2017 judgment issuing a permanent injunction against her and in Nola Bourbon's favor. Finding the case was tried on a petition for a preliminary injunction, this court reversed and remanded for a "full trial on the merits of the permanent injunction." 17-1002, p. 4, 243 So.3d at 696.² On remand, a second trial was held; and the trial court, on June 30, 2020, again issued a permanent injunction against Ms. Benitez and in NOLA Bourbon's favor. From that judgment, Ms. Benitez appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Nola Bourbon owns the immovable property located at 933 Bourbon Street ("933 Bourbon"), which it acquired in 2011; Ms. Benitez owns the immovable property located at 927-31 Bourbon Street ("927-31 Bourbon"), which she acquired in 1995. As noted elsewhere in this opinion, this case arises out of a dispute over the Alley located between the adjoining properties. Nola Bourbon owns five to six inches of the Alley; Ms. Benitez owns three to four feet of the Alley.

At some time before 1900, the adjoining properties had mirror image, one-story structures built on them; the structures were built side-by-side on the Bourbon Street property line of each property. Each property had a full-sized—approximately three to four feet—alleyway. The alleyway on 927-31 Bourbon was on the right side; the alleyway on 933 Bourbon was on the left side. The alleyways were abutting.

Between 1908 and 1930, the structure located on 933 Bourbon was moved back from Bourbon Street, raised, and widened; approximately three to four feet were added to the left side of the structure. As a result of the widening, all but five to six inches of the alleyway on the left side of 933 Bourbon was eliminated; thus, the access to the rear courtyard of 933 Bourbon was eliminated.

The rear courtyard of 933 Bourbon was enclosed by a three-sided brick wall; the structure on 933 Bourbon completed the square. The brick wall between 933 Bourbon and 927-31 Bourbon was built with a hole in it to allow access from the rear courtyard of 933 Bourbon into the Alley. Initially, there was a wooden door on the hole; subsequently, the wooden door was replaced with an iron gate. A French drain was built in the Alley to provide drainage for both 933 Bourbon and 927-31 Bourbon. At a much later date, an air condition compressor unit connected to the structure on 933 Bourbon was placed in the Alley.³

Until 2015, the property owners of 933 Bourbon accessed the Alley through the hole in the brick wall—through either the door or the gate—for three primary purposes: (i) to maintain the left side of their property; (ii) to maintain the French drain; and (iii) to maintain the Air-Conditioning Unit. Beginning in 2015, however, the owner of 927-31 Bourbon, Ms. Benitez, claimed the Alley exclusively belonged to her, demanded the removal of the Air-Conditioning Unit, and bricked in the hole in the brick wall, blocking access to the Alley.⁴ This suit ensued.

In August 2015, Nola Bourbon filed a Petition for Preliminary Injunction, Permanent Injunction, and Ex Parte Motion for Temporary Restraining Order. Simply stated, Nola Bourbon's petition sought rights in the Alley located partially on Ms. Benitez's property based on thirty-year acquisitive prescription pursuant to La. C.C. art. 740.⁵ Ms. Benitez answered the petition; she argued that Nola Bourbon had no rights to the use of the Alley.

Following two days of evidentiary hearings on the petition for injunctive relief,⁶ the trial court rendered a judgment on September 13, 2017, along with written reasons for judgment. The trial court's judgment, as we observed in Nola Bourbon I , granted the following relief to Nola Bourbon:

• Ordered the prompt removal of the brick wall in the former passageway between the properties;

• Found the existence of a continuous⁷ predial servitude of drainage;

• Found the existence of an apparent predial servitude of access for maintenance acquired by acquisitive prescription;

• Found the existence of a right of access and a servitude for maintenance and repairs to plaintiff's property; and

• Found the existence of a servitude in favor of plaintiff for the placement of air conditioning units in the common alley on defendants’ property.

17-1002, pp. 3-4, 243 So.3d at 695. For ease of discussion, we refer in this opinion to these predial servitudes—predial servitude of drainage, apparent predial servitude of access for maintenance and repairs, and servitude for the placement of the Air-Conditioning Unit—collectively as the "Predial Servitudes."

As noted earlier in this opinion, this court, in Nola Bourbon I , reversed the trial court's judgment and remanded for a trial on the merits of the permanent injunction. On remand, Nola Bourbon, in response to this court's statement in Nola Bourbon I that Nola Bourbon may not have properly sought the recognition of a servitude of drainage, filed a supplemental petition in which it requested that Ms. Benitez also be enjoined from blocking, removing, or otherwise obstructing the French drain in the Alley. See Nola Bourbon I , 17-1002, p. 3, n. 1, 243 So.3d at 695 (observing that "[t]he petition for injunction makes a reference to the fact that water cannot drain from [Nola Bourbon's] property into a French drain in the ‘common’ alleyway. However, [Nola Bourbon] did not seek the recognition of a servitude of drainage").⁸

Following the second trial, the trial court once again granted a permanent injunction against Ms. Benitez and in NOLA Bourbon's favor. The trial court's judgment, dated June 30, 2020, ordered that Ms. Benitez was permanently enjoined from the following:

• Improperly dismantling, tampering, and/or removing the air conditioning compressors located in the common alleyway;⁹

• Denying and/or restricting Nola Bourbon's access to the common alleyway;

• Blocking and/or obstructing Nola Bourbon's rear gate in any way; and

• Blocking and/or obstructing drainage from Plaintiff's property into the common alleyway.¹⁰

This appeal followed.

DISCUSSION

For purposes of our analysis, we divide Ms. Benitez's arguments on appeal into the following three categories: (i) standard of review; (ii) nonapparent predial servitude; and (iii) acquisitive prescription.¹¹ We separately address each category.

Standard of Review

Ms. Benitez contends that the trial court's judgment contains numerous legal errors, including the unsupported conclusion that there is a "common alleyway," and that the trial court's judgment is devoid of any factual findings. She, thus, contends that the applicable standard of review is the de novo standard. Nola Bourbon counters that "a trial court's decision on whether a party has possessed property sufficient to prove thirty year acquisitive prescription is a factual determination and cannot be reversed on appeal unless it is manifestly erroneous or clearly wrong." We agree.

Appellate courts review judgments relating to servitudes under the manifest error standard of review. See St. John Baptist Church of Phoenix v. Thomas , 08-0687, p. 7 (La. App. 4 Cir. 12/3/08), 1 So.3d 618, 623.¹² Indeed, all the issues Ms. Benitez raises on appeal are factual issues governed by the manifest error standard. First, the classification of a predial servitude as apparent or nonapparent turns on the facts and circumstances of the particular case. See Wagner v. Fairway Villas Condo. Associates, Inc., 01-0734, p. 7 (La. App. 3 Cir. 3/13/02), 813 So.2d 512, 517. Second, whether a party has possessed property for thirty years without interruption is a question of fact. Rathborne v. Hale , 95-1225, 95-1226, p. 7 (La. App. 4 Cir. 1/19/96), 667 So.2d 1197, 1201 ; see also St. John Baptist Church of Phoenix , 08-0687, p. 7, 1 So.3d at 623 (observing that "[a] trial court's decision on whether a party has possessed property sufficient to prove thirty year acquisitive prescription is a factual determination and cannot be reversed on appeal unless it is manifestly erroneous or clearly wrong"). Third, "[w]hat constitutes possession in any case depends on the nature of the property and is a question of fact, with each case depending upon its own facts." Alford v. Jarrell , 471 So.2d 970, 973 (La. App. 1st Cir. 1985) ; Rathborne , 95-1225, p. 5, 667 So.2d at 1200.

Contrary to Ms. Benitez's contention, the trial court here made factual determinations. The same trial court judge tried this case on two separate occasions. Following each trial, the trial court issued a judgment and...