Buckhorn Ranch, L.L.C. v. Holt

• Decision Date: 06 May 2009
• Docket Number: No. 08-1509.,08-1509.
• Parties: BUCKHORN RANCH, L.L.C., et al. v. Robert Earl HOLT, et al.
• Court: Court of Appeal of Louisiana — District of US

10 So.3d 367

BUCKHORN RANCH, L.L.C., et al. v. Robert Earl HOLT, et al.

No. 08-1509.

Court of Appeal of Louisiana, Third Circuit.

May 6, 2009.

Raymond L. Brown, Jr., Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiffs/Appellants, Buckhorn Ranch, L.L.C., Chet Cooper, Clay Cooper, Earl Humphries.

Jerold E. Knoll, Marksville, LA, for Defendants/Appellees, Robert Earl Holt, Kathy Holt.

Bonita Preuett-Armour, Armour Law Firm, Alexandria, LA, for Defendants/Appellees, Jack Holt, Shirley Holt Ryland, Mary Rose Beatty Holt.

Court composed of SYLVIA R. COOKS, MARC T. AMY and J. DAVID PAINTER, Judges.

AMY, Judge.

The plaintiffs filed suit against neighboring landowners seeking damages stemming from alleged interference with a servitude of passage across portions of the servient estates owned by the defendants. The interference was allegedly caused by a family member of the defendant landowners. The plaintiffs also sought an injunction prohibiting the defendants from allowing access to the family member who was the perpetrator. The trial court granted summary judgment in favor of the defendants, finding that they had a right to permit any person to access or manage their property. The plaintiffs appeal. For the following reasons, we affirm in part, reverse in part, and remand. We deny the motion to withdraw appellee's brief filed by Kathy Holt.

Factual and Procedural Background

Chet Cooper, Clay Cooper, and Earl Humphries formed Buckhorn Ranch, L.L.C. (Buckhorn Ranch) in order to acquire a tract in Rapides Parish for hunting and timber harvesting purposes. Buckhorn Ranch acquired a 650-acre tract from Jack Holt, his wife, Mary Rose Beatty Holt, and their daughter, Carol Anne Holt Edwards, on May 19, 2004. Prior to the sale, Jack and Mary Rose held a 62.8 percent ownership interest in the property; Carol Anne owned a 37.2 percent interest. The property does not border any public road and is accessed via the Red River Levee, which runs across and on the border of adjacent lands.

At issue is a servitude of passage included in the Act of Sale with Mortgage completed in the transfer of Jack and Mary Rose's interest. As adjacent landowners, Jack and Mary Rose conveyed a servitude of passage as follows:

Sellers warrant and represent that they own that portion of the Southwest Quarter of Section 32, T5N, R1W, Rapides Parish, Louisiana lying South of the K.C.S. Railroad over which there exist [sic] a levee. Sellers grant and transfer to Buyer and to Buyer's assigns and transferees a servitude of passage and way 50 feet in width over and across the levee across the Southwest Quarter of Section 32, T5N, R1W, Rapides Parish, Louisiana to the Property for purposes of ingress and egress to the Property and to other property belonging to Clay S. Cooper, et al. Buyer shall have a servitude and the right to construct, maintain and use not less than two crossing [sic] over the K.C.S. Railroad right of way for ingress and egress to the Property. Sellers and Buyer agree that these servitudes shall be predial servitudes with the Property being the dominant estate and Sellers' property in the Southwest Quarter of Section 32, T5N, R1W, Rapides Parish, Louisiana being the servient estate. Buyer's right of servitude, passage and use shall exist in favor of Buyer, Buyer's assigns and transferees.

Subsequently, on May 26, 2004, Jack and Mary Rose donated a portion of the servient estate to Shirley Holt Ryland, their daughter. After the donation, the parcels owned by Jack and Mary Rose and that owned by Shirley included a portion of the servitude.

After purchase, the Buckhorn Ranch owners began experiencing difficulty on the property allegedly caused by Robert Earl Holt, the adult child of Jack and Mary Rose. The record establishes that Robert admitted to, among other things, the chaining and nailing shut of the access gate on Shirley's property. Access to this gate is part of the servitude of passage and was necessary for ingress to and egress from the Buckhorn Ranch property.

Chet, Clay, Earl, and Buckhorn Ranch (the plaintiffs) filed a Petition for Injunctive Relief and Damages in May 2006, alleging that their servitude of passage was hindered, not only by the nailing of the access gate on Shirley's property, but by other tortious and criminal actions on the part of Robert. Included in these damages were approximately forty-eight cuts sustained to a 2.5 mile section of a fence constructed around the Buckhorn Ranch property subsequent to purchase. The plaintiffs also alleged that Robert made a number of telephone calls during May and June 2005, wherein he spoke of the damage to the fence and threatened to burn the Buckhorn Ranch camp. The plaintiffs also alleged that, in a call to Clay's office, Robert referenced a Bible verse involving the killing of children in front of their fathers and the fathers being blinded. The plaintiffs point to other conduct, including Robert's construction of a dummy which was found hanging from a tree by a levee board employee with a sign affixed stating "goodbye deer trappers," and the discovery of what was referred to as a fake bomb at the access gate. The plaintiffs alleged that the physical interference with the servitude of passage and the damages sustained to Buckhorn Ranch property were made possible due to Robert's access to the servient estates via a locked levee gate system. Keys to these gates were available only to owners of the property and their designees. The plaintiffs observe that Robert was not and is not an owner of any of the property at issue. The petition alleged that Jack, Mary Rose, and Shirley permitted Robert to access the property, despite knowledge of his dangerous propensities, past arrests, past violent behavior, and mental health issues.

The plaintiffs point out that Robert continues to use the property and, in fact, he and his family now live in a house on Jack and Mary Rose's property after his release from jail and from a mental health facility. Because of his continued access, the plaintiffs contend their use of the servitude and, in turn, their property is diminished due to fear and anxiety from his threats. The plaintiffs named Jack, Mary Rose, and Shirley as defendants insofar as they are owners of the servient estates. The plaintiffs also named Robert and Kathy Holt, Robert's wife, as defendants due to allegations that Kathy joined Robert in some of the alleged activities. Again, neither of these latter parties is a landowner. Robert is not included in the judgment of dismissal under review.

The plaintiffs seek damages due to losses allegedly sustained. They also seek an injunction requiring Shirley and Robert to remove obstacles limiting the use of the servitude for egress and ingress to the Buckhorn Ranch property and to further maintain that servitude in a manner permitting its utilization. The plaintiffs additionally seek an injunction limiting Robert and Kathy from, among other things, possessing keys to the levee gates, entering the levee road, entering the servient estate, or interfering with the servitude. Finally, the plaintiffs seek an injunction requiring Jack, Mary Rose, and Shirley to maintain the servitude in a manner that permits the full use of the servitude and that these defendants prohibit Robert and Kathy's access to the servient estate and levee road.

The defendants, except for Robert, filed a motion for summary judgment seeking dismissal of the suit. Jack, Mary Rose, and Shirley argued that the petition regards only affirmative conduct of Robert and/or Kathy and that allegations against them focused on access to the property from which Robert caused the disturbances. Jack, Mary Rose, and Shirley argued that "[n]o cause of action exists in Louisiana against a landowner for the criminal acts of a third party" and, thus, the plaintiffs' claims are not actionable. Kathy argued that the claim against her should be dismissed as Robert admitted fault for most of the offenses and asserted that he acted alone.

The trial court granted the motion for summary judgment, dismissing the plaintiffs' claims against Jack, Mary Rose, Shirley, and Kathy. Judgment was entered on October 8, 2008.¹

The plaintiffs appeal, assigning the following as error:

[1]. The district court erred in dismissing Appellees Jack Holt, Mary Holt and Shirley Holt Ryland.

[2]. The district court erred by admitting at hearing a document which was required by law to be filed 15 days prior to hearing.

[3]. The district court erred in dismissing Appellants' claim for injunctive relief.

Kathy initially filed an appellee's brief in this court asserting that the plaintiffs did not assign her dismissal as error nor did it brief this issue as required by Uniform Rules — Courts of Appeal, Rule 2-12.4.² Kathy, thus, sought recognition that the judgment dismissing her was a final judgment and, alternatively, adopted the remaining arguments of Jack, Mary Rose, and Shirley. Kathy later filed a motion to withdraw her appellee's brief, stating that she learned that the appellants did not appeal her dismissal from the litigation. This motion was referred to the panel on the merits.

Discussion

Summary Judgment

Louisiana Code of Civil Procedure Article 966(B) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." As for burden of proof on the motions, Paragraph C(2) provides that:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the...