R and K Bluebonnet, Inc. v. Patout's of Baton Rouge, Inc.

• Decision Date: 23 February 1988
• Docket Number: No. CA,CA
• Parties: R AND K BLUEBONNET, INC., et al. v. PATOUT'S OF BATON ROUGE, INC. 87 1233. 521 So.2d 634
• Court: Court of Appeal of Louisiana — District of US

Page 634

521 So.2d 634

R AND K BLUEBONNET, INC., et al. v. PATOUT'S OF BATON ROUGE, INC.

No. CA 87 1233.

521 So.2d 634

Court of Appeal of Louisiana First Circuit.

Feb. 23, 1988.

Ralph E. Hood, Baton Rouge, for plaintiffs-appellees R and K Bluebonnet, Inc., et al.

Porteus R. Burke, New Iberia, for defendant-appellant Patout's of Baton Rouge, Inc.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

EDWARDS, Judge.

On February 28, 1985, James and Catherine Olinde and their partner, Ben Skillman, sold part of a ten acre tract to Anthony Diez on which he built a restaurant. Another section of the tract was used to build an Exxon station and the Olindes used the remaining four acres for their business, Ralph & Kacoo's Restaurant. The act of sale from the Olindes and Mr. Skillman to Mr. Diez contained the following provision: "[b]uyer agrees that the property herein purchased will not be used as a seafood restaurant for at least sixty (60) months from the date hereof, which agreement shall act as a building restriction on the above described property." After Mr. Diez filed for bankruptcy, Mr. Alex Patout leased the site and opened Patout's Restaurant.

Plaintiffs filed this suit alleging that Patout's was violating the building restriction contained in the original act of sale because approximately one-half of its menu consisted of seafood dishes. The trial court granted plaintiffs the injunctive relief requested which prohibited Patout's from operating the subject property as a "seafood restaurant" and required defendant to remove a number of seafood items from its menu. Patout's appealed, alleging that the trial court erred in finding that the February 28, 1985, act of sale contained an enforceable building restriction.

LSA-C.C. art. 775 states that "[b]uilding restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved." Comment (e) to article 775 states that building restrictions constitute real rights only in the framework of subdivision planning and must be applied pursuant to a general development plan. If the restrictions are imposed on individual lots without regard to the overall plan, they will not be considered building restrictions.

We find that the trial court erred in holding that the language of the limitation on usage of the subject property was a building restriction within the meaning of articles 775--783. Although plaintiffs contend they were developing a commercial park, it is clear that the restriction was applicable only to the parcel of property purchased by Mr. Diez.

Plaintiffs contend that even if the limitation is not a building restriction, it does meet the requirements for the creation of a predial servitude. LSA-C.C. art. 646 states that "[a] predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners." In Richard v. Broussard, 378 So.2d 959 (La.App. 3d Cir.1979), the restriction in question was inserted as an agreement in the act of...