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GRIESHABER FAMILY PROPERTIES, LLC, RJ AND AG SCHOEN FAMILY PROPERTIES, LLC & JOSEPHINE WAGNER PROPERTIES, LLC VERSUS

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NO. 2010-CA-1216

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

IMPATIENS, INC.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-2877, DIVISION "C" Honorable Sidney H. Cates, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Charles R. Jones, Judge Roland L. Belsome, Judge Paul A. Bonin)

Robert A. Barnett GUSTE BARNETT SCHLESINGER HENDERSON & ALPAUGH L.L.P. 639 Loyola Avenue Suite 2500, Entergy Corporation Building New Orleans, LA 70113-7103

COUNSEL FOR PLAINTIFFS/APPELLEES

Gilbert R. Buras, Jr. 710 Carondelet Street New Orleans, LA 70130

COUNSEL FOR SUPERIOR SEAFOOD, L.L.C.

Charles L. Stern, Jr. Jaclyn C. Hill Danielle C. Babashoff THE STEEG LAW FIRM, L.L.C. 201 St. Charles Avenue Suite 3201 New Orleans, LA 70170 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED IN PART; REVERSED IN PART

Defendant-Appellant, Impatiens, Inc., appeals the trial courts dismissal of Impatiens reconventional demand and judgment in favor of Plaintiff-Appellee, Loving Mother, L.L.C., with regard to a petitory action. For the reasons that follow, we affirm in part and reverse in part. FACTS AND PROCEDURAL HISTORY Plaintiff-Appellee, Loving Mother, L.L.C., is a successor entity to the original Plaintiffs, Greishaber Family Properties, L.L.C., and RJ and AG Schoen Family Properties, L.L.C., and Josephine Wagner Properties, L.L.C. Loving

Mother owns two contiguous properties which bear the municipal addresses of 4330 and 4338 St. Charles Avenue, New Orleans, Louisiana. The property located at 4338 St. Charles Avenue, hereinafter referenced as the "Copelands Property," is located at the corner of St. Charles and Napoleon Avenues, and measures 55 feet front on St. Charles Avenue by 120 feet front on Napoleon Avenue. The property located at 4330 St. Charles Avenue, hereinafter referenced as the "Fat Harrys Property",1 is contiguous with 4338 St. Charles Avenue, and is 55 from the corner

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The record evidences that by act of cash sale dated December 14, 1944, Morris W. Newman sold Jennie Carra Greishaber property bearing the municipal address of 4330-34 St. Charles Avenue. It is on this land that the building that is Fat Harrys today was constructed. The title to the Fat Harrys property was passed to Ms. Grieshabers descendants upon her death, and Ms. Grieshabers children acquired the Copelands property in 1981.

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of St. Charles Avenue and Napoleon Avenue, and 60 front on St. Charles Avenue by a depth of 120.2 Loving Mother filed a petitory action on March 29, 2007, asserting ownership of a strip of land located along the rear and side of the Fat Harrys Property and Copelands Property. Loving Mother also asserted that a Servitude of View originally granted on July 14, 1931 had been abandoned, and that the fences location deprived Loving Mother of its use and enjoyment of the property. The Servitude of View was originally established between William Bisso, who then owned the Fat Harrys Property and Copelands Property, and Louis Alba, who then owned 1507 Napoleon Avenue. Defendant-Appellant, Impatiens Inc., now owns 1507 Napoleon Avenue. The servitude consisted of a 20 strip of land along the Napoleon Avenue side of the Copelands Property and a 24 strip of land along the rear side of the Fat Harrys Property and Copelands Property. The servitude was amended on July 22, 1940; the amendment provided that the size of the area affected by the servitude would be reduced to 12 deep along the Napoleon Avenue side of the Copelands Property and would be reduced to the rear 20 of the Fat Harrys and Copelands Property. It also prohibited the

construction of any structures in any area affected by the servitude. Louis Alba subsequently sold 1507 Napoleon Avenue to his own company, Alba Company; Alba Company then sold the property to Victor Schiro. Jozsef Toth, the owner of Impatiens, purchased the property from Victor Schiro in 1979. Impatiens purchased the property on March 4, 1993, from Joszef Toth.3

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As noted in the joint stipulation at trial, the Fat Harrys Property has been conveyed in an unbroken chain of title by the ancestor-in-title, Jennie Carra Grieshaber, to Loving Mother, L.L.C. Loving Mother acquired its interest in the property in an act of exchange dated November 19, 2007. 3 The record evidences that a sale of 1507 Napoleon Avenue property on October 1, 1979 from Mr. and Mrs. Victor H. Schiro to Jackson Homestead Association; a sale of the property dated October 1, 1979 by Jackson

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Impatiens, Inc., answered the petition and filed a reconventional demand, asserting that it and its predecessors have been in possession of the strip of land and had acquired ownership of same through thirty years of acquisitive prescription. Impatiens also denied abandonment of the Servitude of View. The parties stipulated that, at some point more than thirty years prior to March 29, 2007, a fence was placed at the rear of the Fat Harrys Property and Copelands Property.4 The parties further stipulated that the fence was in the same location from at least September 20, 1979 until 1983, when the section of the fence that was closest to Napoleon Avenue was moved, as evidenced by a March 4, 1993 survey.5 At trial, the parties stipulated that Loving Mother has paid all of the real estate taxes assessed on the disputed property. The area of land in question is included in Loving Mothers title and has never been within the boundaries of Impatiens title. Superior Seafood, L.L.C., the tenant of Copelands property, intervened as a cross-appellant to protect its interest in the property.6 A bench trial was held on October 7, 2009. At trial, Jozsef Toth, the owner of Impatiens, and Richard Schoen, the manager of Loving Mother, testified, and testimony from Robert Schoen7 was introduced by deposition. Three surveys and numerous other exhibits were introduced into evidence. After taking the matter under advisement, on March 30, 2010, the trial court ruled in favor of Loving

Homestead Association to Jozsef Toth; a dation en paiement dated March 4, 1993, by Jozsef Toth to Impatiens, Inc.; and a quitclaim executed by Jozsef Toth in favor of Impatiens, Inc., on March 31, 1993. 4 Prior to Loving Mothers procurement of the Copelands property, a fence was placed on the rear of the property which joined with the fence behind the Fat Harrys property. 5 In 1983, Mr. Toth made an agreement with Copelands restaurant to relocate a portion of the western end of the fence. The fence was moved a few feet toward the apartment building, allowing space for restaurant equipment. This relocation of the fence is reflected in the March 4, 1993 survey. 6 Superior Seafood asserts in its brief that it appeared as Intervenor on the basis of its five-year lease of land and improvements at 4330 and 4338 St. Charles Avenue, and acknowledges that its interests are aligned with those of Loving Mother.

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Mother as the owner of the subject property, and rejected Impatiens acquisitive prescription claim. The trial court also found, however, that the 20 strip of land along the rear of Loving Mothers property was still burdened with the Servitude of View in favor of Impatiens property. With regard to the Servitude of View burdening the 12 parcel along the Napoleon Avenue side of the property, the trial court determined that it had been abandoned. In detailed written Reasons for Judgment, the trial court recognized that Mr. Toth purchased 1507 Napoleon Avenue from Victor Schiro in 1979, and that Impatiens was therefore unable to establish thirty years acquisitive prescription without tacking its possession to that of Mr. Toths ancestor in title, Mr. Schiro.8 Because the disputed strip of land was included in Loving Mothers title, pursuant to La. Civ. Code art. 3486,9 in order for Impatiens to acquire the fenced strip of land by acquisitive prescription, Impatiens must have demonstrated corporeal possession for thirty years with the intent to possess as owner.10 Although Mr. Toth argued that the fence, which had no gates or access areas, was evidence of both Mr. Toths and Mr. Schiros intent to possess as owner, the trial court concluded that neither Impatiens nor Mr. Schiros intent to possess as owner could be presumed by the existence of a fence. The trial court further found that, consistent with the originally stated purpose of the servitude, the fence was an accommodation to Impatiens ancestor in title, Louis R. Alba, for Mr. Albas agreement not to oppose William A. Bissos proposal to convert the zoning

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Robert Schoen is Agatha Grieshabers husband. Agatha Greishaber is the sister of Judge Dom Grieshaber and Josephine Wagner. 8 See La. Civ. Code art. 3442 ("The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession."). 9 "Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith." La. Civ. Code art. 3486. 10 Mr. Schiro did not testify.

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of Mr. Bissos property from residential to commercial.11 The trial court also acknowledged that because the surveys did not clearly set out the fence location, Impatiens had also failed to meet the burden of proving the "limits of its possession" through testimony at trial. Turning to the issue of the servitude of view, the trial court determined that the servitude of view created a non-apparent negative servitude in favor of Impatiens pursuant to La. Civ. Code arts. 70612 and 70713. Citing La. Civ. Code arts. 75314 and 75415, the trial court found that the servitude affected two portions of ground, and that although the servitude had prescribed on the portion of ground

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The Servitude of View was granted by Mr. Bisso in the 1931 document as follows: Appearer further declared that for and in consideration of and upon the terms and conditions hereinafter set forth, he does by these presents irrevo[c]ably grant and establish a servitude of view in favor of the property belonging to LOUIS R. ALBA, which property adjoins appearers above said property and which measures fifty feet front on Napoleon Avenue by One hundred and twenty feet in depth, on which stands the Jefferson Apartments, known by the Municipal No. 1507 Napoleon Avenue, which servitude the said Louis R. Alba does by these presents accept. The servitude of view herein granted and established by appearer being on that portion of his ground measuring one hundred and twenty feet front on Napoleon Avenue by a width or depth of twenty feet in the direction of General Pershing street; and a portion forming the rear of appearers said ground measuring twenty-four feet from the rear line of appearers said ground and extending in the direction of St. Charles Avenue, being twenty percent of the depth of appearers said property.

The 1931 document further provided that "[f]or the purpose of maintaining said servitude of view, the appearer herein binds and obligates himself, his heirs and assigns not to construct any building or obstruction of any character whatsoever on the said set back of twenty feet on Napoleon Avenue and the twenty-four feet on the rear of said property as hereinabove described." The servitude was granted and established for the consideration of $300.00,"and in further consideration and compromise of the said Louis R. [A]lba abandoning any of his rights whatsoever which he has or may have to oppose the proposed change in the zoning of the appearers property from residential to ,,G commercial. . .which change however is not in anywise to effect the servitude herein established."
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La. Civ. Code art. 706 provides, in pertinent part: Negative servitudes are those that impose on the owner of the servient estate the duty to abstain from doing something on his estate. Such are the servitudes of prohibition of building and of the use of an estate as a commercial or industrial establishment. La. Civ. Code art. 707 provides, in pertinent part: Nonapparent servitudes are those that have no exterior sign of their existence; such as the prohibition of building on an estate or of building above a particular height. "A predial servitude is extinguished by nonuse for ten years." La. Civ. Code art. 753 La. Civ. Code art. 754 provides as follows: Prescription of nonuse begins to run for affirmative servitudes from the date of their last use, and for negative servitudes from the date of the occurrence of an event contrary to the servitude. An event contrary to the servitude is such as the destruction of works necessary for its exercise or the construction of works that prevent its exercise.

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measuring 120 front on Napoleon Avenue, it had not prescribed as to the rear of the property. Impatiens appealed the trial courts judgment. Loving Mother answered the appeal, joining with Superior Grill, L.L.C., in its cross-appeal, assigning as error and seeking reversal of the trial courts determination that the servitude of view continued to exist on the twenty-foot portion of ground between the properties, asserting that the entire servitude of view had been abandoned by ten years of nonuse. STANDARD OF REVIEW A trial courts determination with regard to whether a party has possessed property sufficient to establish acquisitive prescription is subject to the manifest error standard of review. St. John Baptist Church of Phoenix v. Thomas, 08-0687, p.7 (La. App. 4 Cir. 12/3/08), 1 So. 3d 618, 623. Likewise, a lower courts findings with regard to whether a servitude has been abandoned are governed by the manifest error-clearly wrong standard of review. See Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. P'ship, 01-2812 (La. App. 1 Cir. 12/30/02), 839 So. 2d 82, 89, writ denied, 03-0306 (La. 4/4/03), 840 So. 2d 1219 When the trial courts factual findings are based on the credibility of witnesses, the court's decision to credit the testimony of certain witnesses must be afforded deference by the reviewing court. Id. (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). DISCUSSION Assignment of Error #1 In the first assignment of error, Impatiens asserts that the trial court failed to find that a presumption existed pursuant to La. Civ. Code art. 3427, which provides
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that "[o]ne is presumed to intend to possess as owner unless he began to possess in the name of and for another." Ownership of immovable property may be acquired through a ten- or thirtyyear prescriptive period. La. Civ. Code arts. 3473 et seq. A possessor of

immovable property without just title is considered a bad-faith possessor and is therefore subject to the thirty-year prescriptive period. La. Civ. Code art. 3486. To establish acquisitive prescription, the bad-faith possessor must demonstrate continuous, uninterrupted, peaceable, public and unequivocal corporeal

possession16 for thirty years.

La. Civ. Code art. 3476 (emphasis added).

Additionally, it is well-settled in Louisiana that the party claiming title to a tract of land by acquisitive prescription bears the burden of proof. McKoin v. Harper, 36,533, p. 3 (La. App. 2 Cir. 1/31/03), 836 So.2d 1260, 1263 (citing Bowman v. Blankenship, 34,558, p. 4 (La. App. 2 Cir. 4/4/01), 785 So. 2d 134, 138, writ denied, 01-1354 (La. 6/22/01), 794 So. 2d 794). In this case, Impatiens argument lacks merit simply because neither Mr. Toth nor Impatiens established at trial uninterrupted possession for the necessary time period. We agree with the trial courts conclusion that, even if Impatiens could establish continuous, uninterrupted, peaceable, public and unequivocal corporeal possession of the area of land in dispute, Impatiens did not demonstrate such possession for thirty years; Mr. Toth purchased the property in 1979, and this action was filed in March of 2007, leaving a void of two years for acquisitive prescription.17 Thus, assuming arguendo that Impatiens had actually established

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"Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing." La. Civ. Code art. 3425. 17 The time period for acquisitive prescription was interrupted by the petitory action filed by Loving Mother. See La. Civ. Code art. 3462 ("[p]rescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue").

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possession from 1979 through 2007, Impatiens did not set forth any evidence that Mr. Schiro intended to possess the area of land in dispute. See La. Civ. Code art. 3442. Furthermore, Impatiens did not demonstrate at trial continuous,

uninterrupted, peaceable, public and unequivocal corporeal possession for any period of time. Richard Schoen, the manager and custodian of the records for Loving Mother, L.L.C.,18 testified that his ancestors in title maintained and reconstructed a portion of the fence within the last thirty years, and actually moved a portion of the fence towards the 1507 Napoleon property.19 Additionally,

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Richard Schoen testified at trial that his father preceded him as the manager of the properties. Richard Schoen testified that he first became involved in the property in the 1970s, and testified with regard to his personal knowledge of the purpose and maintenance of the fence in the late 1970s: Q. Well, lets fast-forward to the ,,70s, when you were a major; you were over the age of 18. What did you do around the property in the 70s? A. It was, it was an Uptown gathering spot for all of our friends; went through

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