source: Caselaw Access Project

author: WHIPPLE, C.J.

license: Public Domain

text:
    Bob WELCH & Daniel Hoover v. PLANNING & ZONING COMMISSION OF EAST BATON ROUGE PARISH & 2590 Associates, LLC
    NUMBER 2016 CA 0253
    Court of Appeal of Louisiana, First Circuit.
    APRIL 26, 2017
    See also 2017 WL 1532707, 2017 WL 1532708.

      Alexis A. St. Amant, II, Baton Rouge, LA, Counsel for Plaintiffs/Appellants, Bob Welch and Daniel Hoover
    Cynthia C. Bohrer, Frank Gremillion, Baton Rouge, LA, Counsel for Defendant/Appellee, City of Baton Rouge & Parish of East Baton Rouge
    Brian L. McCullough, Baton Rouge, LA, Counsel for Defendant/Appellee, 2590 Associates, LLC
    Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Baton Rouge, LA, Counsel for Intervenor/Appellee, Glasgow Partners, LLC
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   WHIPPLE, C.J.

I gThis appeal arises from a possessory action brought by neighboring property owners to enforce their rights to a conventional servitude of passage. Following a trial, the trial court rendered judgment, dismissing plaintiffs’ claim with prejudice and denying plaintiffs’ requests for a permanent injunction and damages. From this judgment, plaintiffs appeal. For the following reasons, we reverse and render judgment in favor of plaintiffs, and remand the matter for a determination of damages.

FACTUAL AND PROCEDURAL BACKGROUND

On July 30, 2009, a judgment of possession was rendered in the Succession of Mary Lillian Bordelon Ford (“Ford’s succession”). The judgment of possession granted plaintiff Bob D. Welch ownership of 3.714 acres, known as Tract A in East Baton Rouge, and a one-half ownership interest in adjoining property identified as Tract C. Likewise, the judgment of possession granted plaintiff Daniel T. Hoover ownership of .7065 acres, known as Tract B, and a one-half ownership interest in the property identified as Tract C. The judgment of possession further declared that Tracts A, B, and C included the benefit of the apparent servitude, as shown on a map and survey that was paraphed for identification with the will of Mary Lillian Borde-lon Ford. The paraphed map depicted and dedicated a thirty-foot private access servitude to Tracts A, B, and C. The map depicted the servitude as containing two fifteen-foot wide lanes, running from tracts A, B, and C to a public street, identified as Glasgow Avenue. The 'map specifically stated that no trees, shrubs, or plants may be planted, nor shall any building, fences, or other improvements be constructed, within or over the servitude so as to prevent or ^unreasonably interfere with its purpose, and moreover, that the City-Parish has no responsibility for the maintenance of the servitude.

Defendant 2590 Associates, L.L.C. (“2590”) acquired the 118.72 acres that surrounded Tracts A, B, and C, including the land over which the servitude ran, and proceeded to develop the land into a traditional neighborhood development (“TND”), known as Rouzan. In November of 2011, 2590 submitted an application to the East Baton Rouge Planning Commission for the approval of “phase 3B (Creekside)” of Rouzan.

On January 23, 2012, Welch and Hoover filed a petition for possessory action, with requests for injunctive relief and damages, naming the Planning and Zoning Commission of the Parish of East Baton Rouge and 2590 as defendants. The petition alleged that plaintiffs’ possession of the servitude was disturbed by 2590’s actions in submitting an application to the planning and zoning commission for the approval of Phase 3B. Specifically, plaintiffs alleged that the application for Phase 3B provided for a conversion of part of their private servitude to a public road and the abolishment of the remainder of the servitude. The petition further alleged that the Planning and Zoning Commission had also disturbed plaintiffs’ rights to the servitude by recommending to the East Baton Rouge Metropolitan Council that the application for Phase 3B be approved. Plaintiffs sought a permanent injunction, prohibiting further disturbances of their possession of the servitude and restoring them to undisturbed possession of the servitude. Plaintiffs also sought a preliminary injunction, prohibiting defendants from submitting and approving any plans which further disturbed their possession of the servitude.

As the litigation proceeded, and prior to a ruling on plaintiffs’ request for a preliminary and permanent injunction, the application for the development of Phase 3B was approved by the Metropolitan Council and construction began on |4Phase 3B. Accordingly, plaintiffs filed two amending petitions, alleging further disturbances to their- servitude of passage and amending their request for injunctive relief.

Additionally, prior to a ruling on plaintiffs’ request for a preliminary injunction and permanent injunction, 2590 filed a motion for declaratory relief, seeking a judicial declaration that it could legally relocate plaintiffs’ servitude of passage and that plaintiffs are not entitled to exclusive use of any relocated servitude of passage. In response to 2590’s motion for declaratory judgment, plaintiffs filed a motion for declaratory judgment averring that 2590 was not entitled to relocate the servitude until the requirements of LSA-C.C. art. 748 were satisfied. The trial court rendered a judgment on March 21, 2012, granting 2590⅛ motion for declaratory judgment, and denying plaintiffs’ motion for declaratory judgment.

Plaintiffs sought review of the March 21, 2012 ruling of the trial court by filing an application for supervisory writs with this court. Prior to this court rendering a decision on the writ application, 2590 filed into the public records for East Baton Rouge Parish notice of a temporary servitude of passage. However, the temporary servitude extended from the “dominant estate” to Perkins Road, not Glasgow Avenue. By letter dated April 2, 2012, 2590 notified plaintiffs of the new temporary servitude location and that the former servitude would become impassible.

Notably, on August 13, 2012, this court granted plaintiffs’ application for supervisory writs, in part, and reversed the trial court’s grant of 2590’s motion for | ^declaratory judgment. In granting writs, this court noted that a declaratory judgment action is an ordinary proceeding that must be commenced by the filing of a petition, not by motion. Welch v. East Baton Rouge Planning Commission, 2012 CW 0619 (La. App. 1st Cir. 8/13/12) (unpublished writ action).

Following the filing of another application for supervisory writs by plaintiffs, this court again granted writs, in part, and issued a writ of mandamus on November 15, 2012, ordering the trial court to render a decision on the preliminary injunction sought by plaintiffs on or before November 29, 2012. Welch v. East Baton Rouge Planning Commission, 2012 CW 1875 (La. App. 1st Cir. 11/15/12) (unpublished writ action).

Nonetheless, on December 3, 2012, the trial court rendered judgment, denying plaintiffs’ request for a preliminary injunction, stating “petitioners failed to preponderate on the issue of likely to succeed on the merits and demonstrate irreparable injury and harm.” On January 8, 2013, this court granted writs; reversed the denial of plaintiffs’ application for a preliminary injunction; granted plaintiffs’ application for a preliminary injunction; and remanded the matter to the trial court to fix the amount of security to be furnished by plaintiffs. Welch v. East Baton Rouge Planning Commission, 2012 CW 2078 (La. App. 1st Cir. 1/8/13), 2013 WL 12120192 (unpublished writ action).

Following a contradictory hearing on the amount of security to be paid by plaintiffs, the trial court ordered plaintiffs to pay security in the amount of: $1,000,000.00 commercial surety bond, $500,000.00 property bond, and |fl$100,000.00 cash to be submitted into the registry of the court. Plaintiffs were unable to satisfy these security requirements.

A bench trial on the merits of plaintiffs’ petition for possessory action and requests for injunctive relief and damages was conducted on August 20 and 21, 2013. Following the trial, the trial court took the matter under advisement and ordered all parties to submit proposed findings of fact, conclusions of law, and a proposed judgment.

On October 1, 2015, the trial court rendered judgment, dismissing plaintiffs’ claims against 2590. From this judgment, plaintiffs filed the instant appeal which we will subsequently refer to as “Welch I,” contending that the trial court erred in dismissing plaintiffs’ claims, denying plaintiffs’ possession of the servitude, and failing to award damages to plaintiffs.

|7DISCUSSION

A. Applicable Law

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. LSA-C.C. art. 646. The predial servitude continues as a charge on the servient estate when ownership changes. LSA-C.C. art. 650(B). The owner of the servient estate may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. LSA-C.C. art. 651. Predial servitudes may be natural, legal, and voluntary or conventional. LSA-C.C. art. 654.

Voluntary or conventional servitudes are established by juridical act, prescription, or destination of the owner. LSA-C.C. art. 654. Predial servitudes are established by all acts by which immovables may be transferred. LSA-C.C. art. 722. Thus, predial servitudes may be created by testament as well as by any means of contract translative of ownership, as a sale, an exchange, or a donation. See comment (b) to LSA-C.C. art. 722. A judgment of possession constitutes prima facie evidence of the legatee’s right of quasi-possession to a servitude. See comment (c) to LSA-C.C. art. 722.

The servitude in the present case was created by testament, and plaintiffs obtained rights to the servitude pursuant to the judgment of possession rendered in the Succession of Ford. Accordingly, the servitude at issue constitutes a conventional servitude of passage.

A servitude of passage is the right for the benefit of the dominant estate whereby persons, animal, utilities, or vehicles are permitted to pass through the servient estate. LSA-C.C. art. 705. The use and extent of conventional predial servitudes are regulated by the title by which they are created. LSA-C.C. art. 697. It is only where the title does not specify the extent of the right and the mode of | «exercise of a servitude of passage, that the servitude is subject to interpretation based on what is suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate. LSA-C.C. art. 705.

When the owner of a dominant estate is disturbed in his possession of the servitude, or when he is dispossessed, he may avail himself of a possessory action, pursuant to LSA-C.C.P. art. 3655. Article 3655 provides that “[t]he possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.” Injunctive relief is available to a plaintiff in a possesso-ry action under LSA-C.C.P. art. 3663. In-junctive relief under this article does not depend upon a showing of threat of irreparable injury, loss, or damage to the applicant. Horrell v. Matthews, 2006-1838 (La. App. 1st Cir. 8/15/07), 2007 WL 2318134 (unpublished). CL LSA-C.C.P. art. 3601. Injunctive relief is available for the protection of the right of a predial servitude on the basis of substantive provisions of the Louisiana Civil Code, without the need of allegation and proof of threat of irreparable injury, loss, or damage. Yiannopoulos, A.N., Louisiana Civil Law Treatise, Predial Servitudes § 9:16 (4th ed. 2013).

In addition to injunctive relief, the owner of the servient estate may be liable to the owner of the dominant estate under the laws of property as well as under the laws governing obligations when the dominant estate has been aggravated. Yianno-poulos, A.N., Louisiana Civil Law Treatise, Predial Servitudes § 7:9 (4th ed. 2013); See also Petchak v. Bossier Parish Police Jury, 45,705 (La. App. 2nd Cir. 11/24/10), 55 So.3d 840, 853, writ denied, 2011-0165 (La. 4/29/11), 62 So.3d 112. (“In this case, the pre-existing relationship between these parties before the damage to plaintiffs’ home was that of the owner of the right of use servitude and |9the owner of the ser-vient estate. This gave rise to the possibility of the breach of the real obligations •identified above and an indemnity which might then be due from either the owner of the personal servitude or the owner of the servient estate concerning the use or misuse of the servitude.”) ■

B. Louisiana Civil Code Article 748

The first issue we must address herein is whether or not there was a disturbance of plaintiffs’ rights to the predial servitude of passage, as plaintiffs contend, or whether there was a proper and justified relocation of the servitude pursuant to LSA-C.C. art. 748, as 2590 contends.

Louisiana Civil Code Article 748, found in the chapter governing conventional ser-vitudes, provides:

The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.
If the original location has become more burdensome for the owner of the ser-vient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.

In the present case, the servitude has already been “relocated.” Specifically, at the trial of the matter, Glen Jarrell, who testified on behalf of Glasgow Partners and 2590, testified that plaintiffs can now reach Glasgow Avenue by traveling on “a public road.” He further testified that the former servitude could not be maintained because in order to develop the servient estate into the approved Rouzan TND, culverts were installed that would interfere with the servitude location, and the streets of Rouzan had to connect with connecting cross-streets of Glasgow Avenue, whereas the servitude that had been granted to plaintiffs was located in the middle of two blocks. Mr. Jarrell testified that approximately ten | mlots would be affected if the servitude was maintained at its prior location and that these lots would not be sella-ble due to their reduced size.

In support of its argument that the servitude herein was properly relocated pursuant to LSA-C.C. art. 748, 2590 cites Ogden v. Bankston, 398 So.2d 1037 (La. 1981). In Ogden, the owner of an enclosed estate brought an action for injunction, seeking to prevent the developer who had acquired the servient estate from relocating a conventional thirty-foot wide servitude of passage. Notably, unlike the present matter, the developer in Ogden had not relocated the servitude prior to a final judicial determination as to whether or not the relocation was proper. The developer filed a declaratory action, as he desired to subdivide and market the property comprising the servient estate as a residential neighborhood, contending that the location of the servitude interfered with his plans to develop and sell the property. Thus, the issue before the court was whether it was satisfactorily shown that the present site of the servitude “ha[d] become more burdensome,” as required by LSA-C.C. art. 748. Ogden, 398 So.2d at 1044. The trial court found that the defendant could relocate the servitude, in part, as there was testimony that the location of the servitude would reduce the depths of some of the lots within the development and a real estate appraiser testified that this would make the lots “less desirable” and “less desirable lots generally bring less money.” Ogden, 398 So.2d at 1044.

While Ogden may support 2590⅛ argument that the location of the servitude at issue herein has “become more burdensome for the owners of the servient estate,” our inquiry does not end here, as LSA-C.C. art. 748 imposes additional requirements on the servient estate when relocating a servitude. Specifically, the first paragraph of LSA-C.C. art. 748 clearly provides “that [t]he owner of the In servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.” (Emphasis add- ' ed.)

Here, issues are presented as to whether or not the servitude has been “diminished” in violation of the first paragraph of LSA-C.C. art. 748. The “title” creating the servitude at issue herein, ie., the judgment of possession referencing the will and par-aphed map, provides for a thirty-foot wide servitude from Tracts A, B, and C to Glasgow Avenue. The “roads” which plaintiffs must now traverse from Tracts A, B, and C to Glasgow Avenue are not thirty-feet wide. Specifically, the final plat of Rouzan Phase 3B and 3C, as approved by the Planning and Zoning Commission on May 22, 2013, shows that Rue Perdant and Cal-lot Street, which now must be traversed to reach Glasgow Avenue from Tracts A and B, are twenty-foot right-of-ways. Accordingly, we must determine if this reduction of the servitude’s width constitutes a “diminishment of the servitude” in violation of the first paragraph of LSA-C.C. art. 748.

The first paragraph of LSA-C.C. art 748 prohibits the owner of the servient estate from doing something that tends to diminish the use of the servitude. However, this article must also be read in conjunction with LSA-C.C. arts. 697 and 705. As stated above, LSA-C.C. art. 697, governing conventional predial servitudes, provides, in pertinent part, that “[t]he use and extent of such servitudes are regulated by the title by which they are created.” Further, LSA-C.C. art. 705, governing conventional servitudes of passage, provides, in pertinent part, that “[ujnless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate.” Accordingly, reading these articles in pari materia, we interpret the first paragraph of LSA-C.C. art. 748 as prohibiting the |12owner of the servient estate from doing anything that would diminish the use or extent of the servitude, when the extent and use is provided for in the “title” establishing the servitude.

This interpretation is consistent with this court’s prior reasoning in Dupont v. Hebert, 2006-2334 (La.App. 1 Cir. 2/20/08), 984 So.2d 800, 807-808, writ denied, 2008-0640 (La. 5/9/08), 980 So.2d 695. In Du-pont, a twenty-foot servitude of passage was created by title. The owner of the servient estate subsequently built a turtle farm, and a portion of the farm was within the area of the twenty-foot servitude of passage. On review, this court reversed the trial court and ordered the owner of the dominant estate to remove the ■ encroachments, noting that since the terms of the title govern the use and extent of the servitude, the servient estate could not justify the encroachments by saying that they did not prevent the use of the right-of-way by the dominant estate. Dupont, 984 So.2d at 808. Moreover, this court found that the doctrine of equitable estoppel did not apply and further stated that “since there is positive law on the subject matter [of servitudes] at issue in this case, equity [could] not be invoked by the [trial] court.” Dupont, 984 So.2d at 806-807.

Additionally, we note the factual similarities between the present case and Hymel v. St. John The Baptist Parish School Board, 303 So.2d 588, 591 (La. App. 4th Cir. 1974), writ denied, 307 So.2d 370 (La. 1975). In Hymel, a prior act. of sale provided for a twenty-five-foot wide right-of-way. The owner of the servient estate, sought an injunction to prevent the dominant estate landownér from interfering with the use of the right-of-way. In reversing the trial court and ordering the removal of encroaching overhangs, the appellate court stated, “[i]t is only where the contract does not designate the width of the right-of-way that its extent is subject to interpretation based upon previous use of the servitude. | ^Pursuant to these articles[,] there could hardly be any doubt that plaintiffs are entitled to clear passage at ground level for the full width of 25 feet.” Hymel, 303 So.2d at 591. The appellate court further found that the trial court erred in reasoning that the overhang “is not of such a [d]egree that would warrant removal,” noting that the trial court’s reasoning was “not consistent with C.C. Art. 777 [now LSA-C.C. art. 748] which provides that the owner ‘can do [n]othing tending to diminish’ the servitude’s use.” Hymel, 303 So.2d at 592.

In the instant case, plaintiffs received rights to a conventional servitude of passage. The “title” establishing the servitude provided that the “extent” of the servitude over the servient estate was thirty-feet wide. When the title provides the exact dimension of the area affected by the servitude, that contract must be given full effect. Dupont, 984 So.2d at 807. The record before us clearly demonstrates that the width of the servitude, as provided for in the title, has been diminished. We find that this is a clear-cut violation of the spirit and the letter of the law as embodied in the codal articles and jurisprudence discussed above. Thus, the next issue before us is whether or not the violation was by defendant herein, and if so, what relief should be afforded to plaintiffs.

C. Disturbing Party

As an additional or alternative argument, 2590 contends that the trial court’s dismissal of plaintiffs’ claims against it was correct because 2590 sold Tract 3B to Glasgow Partners on April 5, 2012, and therefore, 2590 was not the “disturbing” |14party. In making this argument, 2590 fails to recognize that a “disturbance” can be “in fact” or “in law.” A “disturbance in law” is defined as the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein. LSA-C.C. art. 3659.

The application for Phase 3B of Rouzan was filed by 2590 Associates on November 3, 2011. The application lists 2590 as the owner and developer of the property. The “subject property map” attached to the application depicts the “existing” thirty-foot wide private servitude of passage. However, the “final development plan map” attached to the application “replaces” the thirty-foot private servitude of passage running from plaintiffs’ property to Glasgow Avenue with green space, residential lots, and several right of ways within the development, including Mirabeau Drive and Prieur Avenue, which are identified as twenty-foot right-of-ways. Additionally, the final plat of Rouzan, as submitted to the Planning and Zoning Commission, states that it was submitted “for 2590 Associates.” The final plat again demonstrates that the thirty-foot wide servitude of passage to Glasgow Avenue has been replaced with twenty-foot wide right-of-I iBways and residential lots.

Accordingly, while the record may not clearly establish who actually performed the construction activities that “diminished” the subject servitude of passage, the record does clearly establish that 2590 executed and recorded documents that “disturbed” the servitude by diminishing the width of the servitude, as provided for in plaintiffs’ “title.” Accordingly, we reject 2590’s argument that the dismissal of plaintiffs’ claims against it was proper because plaintiffs failed to prove that 2590 was the disturbing party.

D. Relief

We next turn to a discussion of what relief is appropriate under the unique facts of this case. On the record before us, we find that plaintiffs possessed rights to a conventional thirty-foot wide servitude of passage running from their property to Glasgow Avenue, and that 2590, acting as owner and developer of the servient estate, disturbed plaintiffs’ rights to this servitude by diminishing the width of the servitude from the width specified in the “title” document establishing the servitude.

| ^Pursuant to our authority under LSA-C.C.P. art. 2164, we hereby issue a mandatory injunction ordering 2590 or its successor(s) in interest to restore plaintiffs’ rights to the servitude to the same extent and mode as specified in the title establishing the servitude, he., the judgment of possession in Ford’s succession referencing the will and paraphed map.,

Moreover, we find that plaintiffs are entitled to additional relief, in the form of damages, pursuant to the laws governing obligations, as this was a conventional servitude of passage, and the terms, he., the use and extent as set forth in the “title document,” were breached by 2590. See Petchak, 55 So.3d at 853-854. Since the trial court dismissed plaintiffs’ claims for damages and did not reach or resolve this issue, we will remand the matter to the trial court with instructions to expeditiously determine and fix the specific amount of damages due to plaintiffs. See Petchak, 55 So.3d at 855.

CONCLUSION

For the above and foregoing reasons, we hereby reverse the October 1, 2015 judgment of the trial court, which dismissed, with prejudice, plaintiffs’ claims against defendant, 2590. Judgment is hereby rendered recognizing and restoring plaintiffs’ rights to the thirty-foot conventional servitude of passage, as provided for in the title establishing the servitude. We hereby issue a mandatory injunction, ordering defendant to restore plaintiffs’ possession and rights to a thirty-foot conventional servitude of passage running from their property to Glasgow Avenue. Additionally, the matter is hereby remanded to the trial court for further | ^proceedings, with instructions to expeditiously determine and fix the specific amount of damages due to plaintiffs and to determine an expeditious time period within which such restoration shall be accomplished, consistent with the views expressed herein.

Costs of this appeal are assessed to defendant, 2590 Associates, L.L.C.

REVERSED AND RENDERED; REMANDED WITH INSTRUCTIONS.

      . Hoover’s home is located on Tract A, Welch's home is located on Tract B, and Tract C is land without improvements.

      . Plaintiffs testified that the temporary servitude, recorded on May 8, 2012, ran only from Tract A (Welch’s property) to Perkins Road and there was no direct access to the temporary servitude from Tract B (Hoover’s property) without traversing Tract A. Nevertheless, Welch did not deny Hoover access to this new servitude through his property, In an effort to resolve this issue, 2590 filed another notice of temporary servitude of passage into the public records on November 16, 2012, for Tracts B and C. Notably, plaintiffs testified that they were not able to use this servitude because it ran through a steep ditch.

      . Prior to the contradictory hearing on the amount of security to be paid by plaintiffs, Glasgow Partners intervened in the lawsuit, averring that it had a justiciable interest in the controversy because it purchased the “servient estate” from 2590 on April 5, 2012.

      . Although plaintiffs filed a notice of intent to file supervisory writs of review of the February 8, 2013 ruling of the trial court, which set forth the security to be paid by plaintiffs, the notice of intent was denied by the trial court with the notation "moot.”

      . The trial court rendered separate judgments as to defendant, the East Baton Rouge Planning Commission, and intervenor, Glasgow Partners. These judgments are the subject of companion appeals also handed down this date. See Welch v. East Baton Rouge Planning Commission, 2016-0735 (La. App. 1st Cir. 4/26/17), 220 So.3d 70, 2017 WL 1532707 ("Welch II”); Welch v. East Baton Rouge Planning Commission, 2016-0751 (La. App. 1st Cir. 4/26/17), 220 So.3d 74, 2017 WL 1532708 ("Welch III”).

      . In their first assignment of error, plaintiffs aver that the trial court erred by signing a judgment with the incorrect date of signing. The judgment in the record is dated as being signed on October 1, 2013; however, the minute entry states that the judgment was signed on October 1, 2015. Moreover, all parties acknowledge and agree that the reference to 2013 on the judgment was a typographical error. To correct this procedural error, this court issued an order remanding the case to the trial court for the limited purpose of correcting this typographical error in the judgment. An amended judgment, reflecting the October 1, 2015 signing date, was supplemented into the record on February 21, 2017.
      Additionally, as a preliminary procedural matter, plaintiffs contend in their second assignment of error that the trial court erred in rendering three separate judgments for each defendant and intervenor. Although it is not clear in the record why the trial court did so, we are unable to say this was outside the trial court’s discretion.

      . In Ogden, as relied on by 2590, there is no indication that the proposed relocated servitude was less than thirty feet wide, as specified in the "title” creating the servitude.

      . See also Toso v. Borne, 388 So.2d 132, 134 (La. App. 4th Cir. 1980) ("Defendant may not thus reduce the width of the servitude ...."); Keeley v. Schexnailder, 97-1609 (La. App. 3rd Cir. 4/1/98), 708 So.2d 838, 842, writ denied, 98-1196 (La. 6/19/98), 720 So.2d 1216.

      . We take judicial notice herein of the Secretary of State’s official governmental website, which reflects that 2590 and Glasgow Partners have the same registered domicile address, the same registered agent, and the same registered officer. See State v. Carpenter, 00-436 (La. App. 3rd Cir. 10/18/00), 772 So.2d 200, 206, writ denied, 2000-3152 (La. 1/25/02), 806 So.2d 665 (Judicial notice taken of the Secretary of State’s official governmental website, even though not requested by parties).

      . Plaintiffs have filed a separate lawsuit against the East Baton Rouge Parish Metropolitan Council, relating to the approval of the Rouzan rezoning request, This separate lawsuit has been the subject of three prior appeals before this court. See Welch v. East Baton Rouge Metropolitan Council, 2010-1532 (La.App. 1 Cir. 3/25/11), 64 So.3d 249; Welch v. East Baton Rouge Parish Metropolitan Council, 2012-1440 (La.App. 1 Cir. 2/26/14), 2014 WL 1356808 (unpublished), writ denied, 2014-0805 (La. 5/30/14), 140 So.3d 1178; and Welch v. East Baton Rouge Parish Metropolitan Council, 2014-1758 (La. App. 1 Cir. 6/3/15), 2015 WL 3540426 (unpublished). In sum, plaintiffs alleged in this separate lawsuit, and this court found, that in approving the rezoning request, the Council violated the Unified Development Code ("the Code”), insofar as the Code requires the TND to have complete, unified, and legal control of all land within the TND. Following this court’s opinion that the Council violated the Code, the planning commission amended the Code to remove the requirement that a TND must have the complete, unified control of all property within the boundaries of the development. Plaintiffs did not dispute the authority of the Council to amend the Code, and thus, this court found it had no basis to further enjoin the City from approving the Rouz-an TND rezoning request.

      .Inasmuch as we have found that plaintiffs are entitled to relief on the basis that the servitude was "diminished” in violation of the substantive provisions of the Civil Code governing conventional servitudes, we pretermit discussion of plaintiffs’ alternative argument that the servitude was improperly terminated.

      . The obligation to demolish works and to restore the premises to its previous condition is a real obligation, i.e., a charge imposed on an immovable that follows any subsequent acquirer. Yiannopoulos, A.N., Louisiana Civil Law Treatise, Predial Servitudes § 7:10 (4th ed. 2013)

      . This is not to say that 2590 or its successors in interest are prohibited from relocating the servitude, if all requirements of LSA-C.C. art. 748 are satisfied, and if there is no dimin-ishment of the servitude in violation of the first paragraph of LSA-C.C. art. 748.


text:
    Bob WELCH & Daniel Hoover v. PLANNING & ZONING COMMISSION OF EAST BATON ROUGE PARISH & 2590 Associates, LLC
    NUMBER 2016 CA 0735
    Court of Appeal of Louisiana, First Circuit.
    APRIL 26, 2017
    See also 2017 WL 1532701, 2017 WL 1532708.

      Alexis A. St. Amant, II, Baton Rouge, LA, Counsel for Plaintiffs/Appellants, Bob Welch and Daniel Hoover
    Gwendolyn K. Brown, Frank Gremillion, Baton Rouge, LA,' Counsel for Defendant/Appellee, City of Baton Rouge & Parish of East Baton Rouge
    Brian L. McCullough, Baton Rouge, LA, Counsel for Defendani/Appellee, 2590 Associates, LLC
    Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Baton Rouge, LA, Counsel for Intervenor/Appellee, Glasgow Partners, LLC
    BEFORE; WHIPPLE, C.J., GUIDRY? and McClendon, jj.
   WHIPPLE, C.J.

I pPlaintiffs, Bob Welch and Daniel Hoover, appeal a March 2, '2016 judgment of the trial court, dismissing, with prejudice, plaintiffs’ claims against the East Baton Rouge Parish Planning and Zoning Commission (“the City/Parish”). For the following reasons, in the instant matter, which we refer to as “Welch II,” we reverse the judgment of the trial court and remand the matter to the trial court.

A full recitation of the pertinent facts and procedural history related to this litigation arising from the development of the Rouzan Traditional Neighborhood Development (“TND) is set forth in the companion cases of Welch and Hoover v. Planning and Zoning Commission of East Baton Rouge, 2016-0253 (La. App. 1st Cir. 4/26/17), 2017 WL 1532701 (“Welch I”) and Welch and Hoover v. Planning and Zoning Commission of East Baton Rouge, 2016-0751 (La. App. 1st Cir. 4/26/17), 2017 WL 1532708 (“Welch III”), both also handed down this date.

In Welch I, plaintiffs appealed an October 1, 2015 judgment of the trial court that dismissed plaintiffs’ claims against a defendant, 2590 Associates, L.L.C. (“2590”). Finding merit to plaintiffs’ arguments, we reversed the judgment of the trial court, granted plaintiffs’ requests for injunctive relief and damages, and remanded the matter to the trial court to fix the specific amount of damages due to plaintiffs, based upon our finding that 2590 had disturbed plaintiffs’ rights to a conventional predial servitude of passage.

In Welch III, plaintiffs sought review of a March 21, 2016 judgment of the trial court, wherein the trial court declared that: (1) intervenor, Glasgow Partners, L.L.C., was entitled to temporarily relocate the servitude; (2) intervenor had permanently relocated the servitude in accordance with LSA-C.C. art. 748; and (3) plaintiffs were obligated to pay intervenor $6,650.48 for property damage to Glasgow Partners’ property. On review, we affirmed the trial court’s damage Laward in favor of Glasgow Partners but reversed the judgment of the trial court in all other respects.

In this appeal, plaintiffs seek review of a March 2, 2016 judgment of the trial court that dismissed plaintiffs’ claims against the City/Parish. Plaintiffs’ assignments of error are identical to those raised by plaintiffs in Welch III, involving claims against Glasgow Partners. However, in plaintiffs’ reply brief, plaintiffs contend that the trial court also erred in dismissing their claims against the City/Parish because plaintiffs introduced evidence at trial showing that there was “a legal disturbance by the City[/]Parish by virtue of the Planning Commission’s granting of defendants’ [rezoning request for the Rouzan TND] and then making it a public record.”

While the trial court did not provide written reasons for the judgment dismissing plaintiffs’ claims against the City/Parish, a minute entry detailing the reasons for the ruling states that plaintiffs’ claims were dismissed based on the trial court’s finding that:

the City/Parish acting within the scope of powers relative delegated to the Planning and Zoning Commission ,.. was well within its appropriate procedure and ... has not caused a disturbance of the plaintiff[s’] servitude... [further plaintiffs’] [servitude of passages is not necessary inasmuch as public streets are provided for that purpose. Said servitude of passage is therefore hereby can-celled.

We find that the trial court committed legal error insofar as the court dismissed plaintiffs’ claims against the City/Parish based on the finding that the servitude of passage was properly relocated, that it was no longer necessary as public streets were provided, and therefore, that the servitude of passage was cancelled. As discussed in the companion cases, servitudes may be natural, legal, or voluntary and conventional. LSA-C.C. art. 654. The servitude at issue in this case is not a legal servitude of right of passage; rather, it is a conventional servitude of passage, as it was created by testament and plaintiffs obtained rights to 14the servitude pursuant to a judgment of possession. See LSA-C.C. art. 705 (establishing servi-tudes of passage as a kind of conventional servitude). Indeed, the chapter in the Louisiana Civil Code addressing conventional or voluntary servitudes contains a section specifically addressing “Extinction of Predial Servitudes.” See LSA-C.C. arts. 751, et. seq. We have reviewed the applicable code articles within this section and are unable to locate codal authority, or jurisprudential authority, that supports the trial court’s finding that the conventional servitude at issue herein was “cancelled” because public streets are now provided. Rather, LSA-C.C. art. 771 provides that “[a] predial servitude is extinguished by an express and written renunciation by the owner of the dominant estate,” which un-disputedly did not occur in the instant case. Thus, we find that the trial court committed legal error by concluding that the servitude at issue herein could be “cancelled” on the basis that other public streets were available.

When an error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735.

In challenging a zoning decision, the issue is whether the legislation is arbitrary and capricious. King v. Caddo Parish Commission, 97-1873 (La. 1998), 719 So.2d 410, 419. The court may inquire as to whether or not permits were granted in similar situations and refused in others, as this may constitute non-uniform application of zoning ordinance regulations. King, 719 So.2d at 419.

IfjWe have examined the record in this proceeding, and the record does not contain testimony on behalf of the City/Parish regarding the approval of the Rouzan TND or the zoning procedures in similar situations where a servitude is at issue; nor are the applicable zoning regulations in the record. Accordingly, the record is insufficient for us to determine whether or not the approval of the Rouzan TND by the City/Parish was factually and legally correct or was arbitrary and capricious.

As we are unable to determine the merits of plaintiffs’ claims against the City/Parish, we hereby remand this matter to the trial court for further proceedings in accordance with the precepts noted herein, including a determination on the record as to the circumstances giving rise to the City/Parish’s approval of the Rouzan TND, the City/Parish’s applicable zoning regulations, and customary zoning procedures of the City/Parish in similar situations where a servitude is at issue. In sum, this matter is remanded to the trial court for a determination of plaintiffs’ claims that the approval of the Rouzan TND by the City/Parish was arbitrary and capricious, and, if so, to determine the amount of damages, if any, owed to plaintiffs by the City/Parish.

CONCLUSION

For the above and foregoing reasons, we hereby reverse the March 2, 2016 judgment of the trial court, which dismissed, with prejudice, plaintiffs’ claims against the City/Parish and remand the matter to the trial court, with instructions to expeditiously determine whether or not the approval of the Rouzan TND by the City/Parish was arbitrary and capricious and to fix the amount of damages, if any, owed to plaintiffs by the City/Parish, in accordance with the views expressed herein. , ■

| nCosts of this appeal in the amount of $1,232.50 are to be shared equally between the parties.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . See also LSA-C.C. art. 705, comment (b) which provides, "There is no longer [a] distinction between urban and rural passage; the servitude is perpetual unless the title provides otherwise.”


text:
    Bob WELCH & Daniel Hoover v. PLANNING. & ZONING COMMISSION OF EAST BATON ROUGE PARISH & 2590 Associates, LLC
    NUMBER 2016 CA 0751
    Court of Appeal of Louisiana, First Circuit.
    APRIL 26, 2017
    See also 2017 WL 1532701, 2017 WL 1532707.

      Alexis A. St. Amant, II, Baton Rouge, LA, Counsel for Plaintiffs/Appellants, Bob Welch and Daniel Hoover
    Cynthia C. Bohrer, Frank .Gremillion, Baton Rouge, LA, Counsel for Defendant/Appellee, City,of Baton Rouge & Parish of East Baton Rouge
    Brian L. McCullough, Baton Rouge, LA, Counsel for Defendant/Appellee, 2590 Associates, LLC
    Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Baton Rouge, LA, Counsel for Intervenor/Appeilee, Glasgow Partners, LLC
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   WHIPPLE, C.J.

Un this appeal, which .we refer to as “Welch III,” plaintiffs, Bob Welch and Daniel Hoover, appeal a March 21, 2016 judgment of the trial court rendered in favor . of intervenor, Glasgow Partners, LLC. For the following reasons, we reverse the judgment of the trial court in part, affirm the judgment of the trial court in part, and remand the matter to the trial court.

RELEVANT PROCEDURAL HISTORY

A full recitation of the pertinent facts and procedural history related to this litigation arising from the development of the Rouzan Traditional Neighborhood Development (“TND”)' is set forth in the companion case of Welch and Hoover v. Planning and Zoning Commission of East Baton Rouge, 2016-0253 (La. App. 1st Cir. 4/26/17) (“Welch I”), also handed down this date.

In this appeal, plaintiffs seek review of a March 21, 2016 judgment, which addressed intervenor Glasgow Partners, L.L.C.’s claims in the instant litigation. Glasgow Partners intervened in plaintiffs’ possesso-ry action against 2590 Associates, L.L.C. (“2590”) and the Planning and Zoning Commission of East Baton Rouge, contending that it had an interest in the litigation because Glasgow Partners purchased the “servient estate” from 2590 prior to the trial court’s resolution of plaintiffs’ possessory action and prior to the trial court’s ruling on plaintiffs’ requests for injunctive relief and damages. Glasgow Partners sought declaratory relief and damages.

The trial court signed a judgment on March 21, 2016, addressing the relief sought by Glasgow Partners. The judgment declared that:

(1)Glasgow Partners was entitled to temporarily relocate plaintiffs’ servitude of passage in anticipation of construction activities by “arranging” a temporary servitude of passage, dated May 8, 2012, which provided access to Perkins Road;
h(2) Glasgow Partners permanently relocated plaintiffs’ servitude of passage by providing a 30-foot wide access from their properties to a publicly dedicated street pursuant to LSA-C.C. art. 748; and
(3) Judgment was rendered in favor of Glasgow Partners and against the plaintiffs, in solido, in the amount of $6,650.48 for damages “willfully caused by plaintiffs” on the property owned by Glasgow Partners.

' Plaintiffs then filed the instant appeal, raising the following assignments of error:

(1) The trial court erred in dismissing the possessory action;
(2) The trial court erred by finding that the servitude had been legally terminated, cancelled, or moved;
(3) The trial court erred in ruling that 2590 Associates or Glasgow Partners were authorized to move the servitude temporarily;
(4) The trial court erred in changing the judgment without proper procedure; and
(5) The trial court erred in granting damages to Glasgow Partners and failing to award damages to plaintiffs.

ANALYSIS

Motion to Supplement the Record

Prior to addressing the merits of plaintiffs’ instant appeal of the March 21, 2016 judgment of the trial court, we address plaintiffs’ motion to supplement the appeal, which was referred to the merits panel. Plaintiffs’ motion seeks to supplement the record on appeal with a copy of a judgment that was filed into the trial court record on November 9, 2015, but never signed by the trial court. Rather, the trial court signed an identical judgment that was filed into the trial court record on March 18, 2016, and signed by the trial court on March 21, 2016.

Louisiana Code of Civil Procedure article 2132 provides:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

| ¿Here, the motion to supplement seeks to supplement the record with a copy of an unsigned judgment that was filed into the trial court record, as indicated by the date stamp on the judgment. The judgment is identical to the judgment that was later signed by the trial court and is on appeal herein. While we see no particular need for this unsigned judgment to resolve the issues of the case, Glasgow Partners has not objected to the motion to supplement.

Accordingly, as an accommodation to the parties, we will allow supplementation and hereby grant the motion to supplement.

Assignment of Error No. 4

For ease of discussion, we will first address plaintiffs’ fourth assignment of error, wherein plaintiffs contend that the trial court erred in changing the judgment without proper procedure. In sum, plaintiffs contend that the judgment rendered on March 21, 2016, insofar as it authorizes Glasgow Partners to “relocate” the servitude, conflicts with the October 1, 2015 minute entry of the trial court that states, in pertinent part, that the servitude of passage was “cancelled” because plaintiffs’ property was “no longer landlocked.”

When a trial court’s oral reasons or minute entry conflicts with the written judgment, the latter governs; the trial judge may, within his authority, render judgment which differs substantially from his prior oral statements, for such oral reasoning forms no part of the judgment, as it is the formal, signed judgment which governs the controversy. Northshore Capital Enterprises v. St. Tammany Hosp. Dist. No. 2, 2001-1606 (La.App. 1 Cir. 6/21/02), 822 So.2d 109, 112 n. 3, writ denied, 2002-2023 (La. 11/1/02), 828 So.2d 584.

Accordingly, we find no merit to plaintiffs’ argument that the judgment should be set aside on this basis alone. Thus, this assignment of error lacks merit.

jsAssignments of Error Nos. 1, 2, & 3

In assignment of error number one, plaintiffs contend that the trial court erred in dismissing their possessory action. However, the March 21, 2016 judgment at issue in this appeal does not contain decretal language dismissing plaintiffs’ possessory action. Rather, the dismissal of plaintiffs’ possessory action was actually ordered in the October 1, 2015 judgment of the trial court, which is the subject of the companion appeal handed down this same day. See Welch v. East Baton Rouge Planning Commission, 2016 CA 0253 (La. App. 1st Cir. 4/26/17), 2017 WL 1532701 (“Welch I”). Plaintiffs’ arguments in support of their contention that the trial court erred in dismissing their possessory action are discussed at length in the above-cited companion appeal, and have been found to be well-supported. On review, for the reasons expressed in the companion appeal, we likewise find merit to the first assignment of error herein.

Additionally, for the reasons set forth in the companion appeal, Welch I, we find merit in plaintiffs’ arguments in assignments of error numbers two and three herein, in which plaintiffs contend that the trial court erred by finding that the servitude has been legally terminated, can-celled, or moved, and further erred in finding Glasgow Partners was entitled to temporarily move the servitude.

In particular, in the companion appeal, we have discussed at length the propriety of the relocation of the servitude, and have concluded that in “relocating” the servitude, 2590 “diminished the width” of the servitude, in violation of LSA-C.C. art. 748. Accordingly, we reversed the judgment of the trial court therein and rendered judgment in favor of plaintiffs, granting plaintiffs’ requests for injunctive relief and damages, and remanded the matter to the trial court to fix the specific amount of damages due plaintiffs.

LFor the same reasons, we find merit to plaintiffs’ argument in the instant appeal challenging the relocation or termination of the servitude. For the reasons expressed in the companion appeal, we reverse the portion of the March 21, 2016 judgment that declares “Glasgow Partners permanently relocated plaintiffs servitude of passage by providing a 30-foot wide access from their properties to a publicly dedicated street pursuant • to LSA-C.C. art. 748.”

Moreover, to the extent that the trial court judgment at issue in this appeal declares that Glasgow Partners was entitled to temporarily relocate the plaintiffs’ servitude of passage by arranging the temporary servitude of passage, dated May 8, 2012, to Perkins Road, we find additional error. The record reflects that 2590 temporarily relocated the servitude of passage, not Glasgow Partners. Specifically, notice of the relocated servitude was sent to plaintiffs by 2590, not Glasgow Partners, and 2590, not Glasgow Partners, filed the temporary servitude of passage into the public records on May 8, 2012. Notwithstanding the fact that this relocation was done by 2590, the “temporary relocation” was also done while plaintiffs were seeking review of the “relocation” issue via writs filed with this court (as set forth in our recitation of the procedural history of this litigation in the companion appeal). Moreover, the temporary servitude, recorded on May 8, 2012, ran only from Tract A (Welch’s property) to Perkins Road and there was no direct access to the temporary servitude from Tract B (Hoover’s property). Accordingly, there was no legal or evidentiary basis for the trial. court’s declaration in the March 21, 2016 judgment that Glasgow Partners had temporarily relocated the servitude, or in finding that Glasgow Partners (or any other party) had properly temporarily relocated the servitude. Accordingly, we likewise reverse the portion of the March 21, 2016 judgment that declares “Glasgow Partners was entitled to temporarily! 7 relocate-plaintiffs servitude of passage... by ‘arranging’ a temporary servitude . of passage.. .which provided access to Perkins Road.”

Assignment of Error No. 5 .

In their fifth assignment of error, plaintiffs contend the trial court erred in awarding damages to Glasgow Partners and in failing to award damages to plaintiffs. In the companion appeal of Welch I, we remanded the matter to the trial court to fix the specific amount of damages due to plaintiffs. For the same reasons, we remand this matter for a determination of the damages due to plaintiffs by Glasgow Partners, insofar as Glasgow Partners may have participated in or facilitated the disturbance and the improper relocation of plaintiffs’ servitude or from its- actions in filing its petition for intervention “uniting with one of the defendants in resisting plaintiffs’ claims.”

However, to the extent that the judgment awarded Glasgow Partners $6,650,48, plus legal interest, for damages “willfully” caused by plaintiffs during the construction of the Rouzan development, we find no error.

In its amended petition of intervention, Glasgow Partners alleged in pertinent part: that plaintiffs, or someone acting on their behalf, dumped trash into a drainage ditch before a hurricane, which potentially could have caused flooding; that Hoover drove his vehicle over pipe/conduit that had been laid for a gas line, causing damage to the line; that Welch and Hoover dug up property in the middle of the disputed servitude of passage area and installed a gas line; and that plaintiffs’ attorney parked his vehicle on Glasgow Partner’s property and impeded the ongoing construction activities.

At trial, Glen Jarrell, who testified on behalf of 2590. Associates and Glasgow Partners, provided detailed accounts of the damage allegedly caused by .plaintiffs and the costs of repairing such.damage. 2590 Associates and Glasgow |8Partners also presented the testimony of a general- contractor who worked on the Rouzan TND development and repaired the roads and gas lines that were allegedly damaged by plaintiffs.. Additionally, invoices in the amount of $5,548.98 and $701.50 were introduced into evidence, and Mr. Jarrell testified that another $400.00 was incurred for repairing the gas line allegedly damaged by Welch and Hoover.

Special damages are those which have a “ready market value,” such that the amount .of the damages theoretically may be determined with relative, certainty. A reviewing court should not set aside an award of special damages unless the award was based on factual findings that are found to be manifestly erroneous. Aymami v. St. Tammany Parish Hospital Service District No. 1, 2013-1034 (La.App. 1 Cir. 5/7/14), 145 So.3d 439, 448. On the record before us, we are unable to find that the trial court was manifestly erroneous in concluding that plaintiffs had caused property damage, as alleged by Glasgow Partners. Moreover, evidence was introduced to support a special damage award in the amount of $6,650.48 for this property damage. As such, we are unable to say the trial court was clearly wrong or manifestly erroneous in making these determinations.

Accordingly, we find only partial merit to plaintiffs’ last assignment of error.

CONCLUSION

For the above and foregóing reasons, we hereby grant the motion to supplement filed by Bob Welch and Daniel Hoover. Additionally, we hereby affirm that portion of the March 21,2016 judgment of the trial court awarding damages in the amount of $6,650.48 to' Glasgow Partners for the property damage caused by plaintiffs. For the reasons set forth herein and in the companion appeal, Welch and Hoover v. Planning and Zoning Commission of East Baton Rouge, 2016-0253 (La. App. 1st Cir. 4/26/17), 2017 WL 1532701, handed down this same day, we hereby ^reverse the portion of the March 21, 2016 judgment that (1) declares that Glasgow Partners was entitled to temporarily relocate the servitude of passage, and (2) declares that Glasgow Partners permanently relocated the servitude of passage pursuant to LSA-C.C. art. 748, We remand the matter to the trial court for further proceedings, with instructions to expeditiously determine and fix the amount of damages.due to plaintiffs from Glasgow Partners, in accordance with the views expressed herein and for the reasons set forth in the companion appeal. Costs of this appeal are assessed equally between the parties.

MOTION TO SUPPLEMENT GRANTED; MARCH 21, 2016 JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; REMANDED WITH INSTRUCTIONS.


author: CRAIN, J.

text:
    Grady Wayne BRYANT and Rhonda Patten Bryant v. PREMIUM FOOD CONCEPTS, INC. dba Popeye’s Fried Chicken #4065 and State Farm Fire and Casualty Company
    NO. 2016 CA 0770
    Court of Appeal of Louisiana, First Circuit.
    APRIL 26, 2017

      Vincent F. Wynne, Jr., James C. Arcen-eaux, IV, Jeremy D. Goux, Covington, Louisiana, Attorneys for Plaintiffs/Appellants, Grady Wayne Bryant and Rhonda Patten Bryant
    Marianne S. Pensa, Metairie, Louisiana, Attorney for Defendants/Appellees, Premium Food Concepts, Inc. dba Popeye’s Fried Chicken #4065 and State Farm Fire and Casualty Company
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

Ijn this personal injury suit arising from a slip and fall, the plaintiffs appeal a summary judgment dismissing their claims for damages. We reverse and remand for further proceedings.

FACTS

Grady Wayne Bryant and his wife, Rhonda Patten Bryant, filed suit against Premium Food Concepts, Inc., doing business as Popeye’s Fried Chicken, and its insurer (collectively, “Popeye’s”), seeking damages for injuries sustained when Mr. Bryant slipped and fell on “a pile of grease” as he stepped off of the curb of the restaurant’s rear parking lot. Popeye’s generally denied the allegations of the petition and filed a motion for summary judgment on the basis that the Bryants could not prove that Popeye’s created or had actual or constructive knowledge of the alleged substance that caused Mr. Bryant’s fall, and therefore, could not meet their burden of proof under the Louisiana Merchant Liability Statute. The trial court agreed that the evidence presented did not establish the temporal element necessary to prove constructive notice and granted summary judgment dismissing the Bryants’ claims. The Bryants now appeal.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966B(2). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. See La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s ^determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So.3d 607, 610.

A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F(1). The burden of proof is on the mover. See La. Code Civ. Pro. art. 966C(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Pro. art. 966C(2); Temple v. Morgan, 15-1159 (La.App. 1 Cir. 6/8/16), 196 So.3d 71, 76, writ denied, 16-1255 (La. 10/28/16), 208 So.3d 889.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Mills v. Cyntreniks Plaza, L.L.C., 14-1115 (La.App. 1 Cir. 8/19/15), 182 So.3d 80, 82, writ denied, 15-1714 (La. 11/6/15), 180 So.3d 308. Popeye’s motion for summary judgment is based on the’ Louisiana Merchant Liability Statute, Louisiana Revised Statutes 9:2800,6. Thus, as a threshold matter, we consider whether Section 9:2800.6 applies to this case.

Section 9:2800.6 provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises.free of any hazardous conditions which reasonably might give rise to damage. .
LB. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an. injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1)The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the prémises which are similar tó those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

Section 9:2800.6 generally-provides that a merchant owes its patrons a duty to exercise reasonable care to keep its aisles, passageways, and floors in a reasonably safe condition and to.keep its establishment free of hazardous conditions. See Thompson v. Winn-Dixie Montgomery, Inc., 15-0477 (La. 10/14/15), 181 So.3d 656, 662. In other words, merchants are required to exercise reasonable care to protect those who enter the premises. Lavergne v. BJ’s Restaurants, Inc., 16-0090 (La.App. 1 Cir. 12/15/16), 208 So.3d 918, 921. InlfiSome cases, courts have held that the duty set forth in Section 9:2800(6 also extends to sidewalks and parking lots near the merchant’s business. E.g., Williams v. Liberty Mut. Fire Ins. Co., 16-0996- (La. App. 1 Cir. 3/13/17), 217 So.3d 421, 426, 2017 WL 1025364 (applying Section 9:2800.6 to a trip and fall from the curb that transitioned from a sidewalk to the parking lot near a restaurant’s exit); Waddles v. Brookshire Grocery Co., 50, 150 (La. App. 2 Cir. 9/30/15), 181 So.3d 772, 778 (applying Section 9:2800.6 to a trip and fall on an uneven section of concrete in a grocery store parking lot); Davis v. Cheema, Inc., 14-1316 (La.App. 4 Cir. 5/22/15), 171 So.3d 984, 988 (recognizing the applicability of Section 9:2800.6 to slip and fall cases occurring in both gas station and merchant parking lots). However, Section 9:2800.6D explicitly provides that not all tort causes of action against merchants are governed by the statute.

In this ease, the pleadings and summary judgment evidence reflect that the Bryants do not seek damages resulting from a breach of Popeye’s duty to keep its aisles, passageways, and floors in a reasonably safe condition. Nor do they seek damages from a slip and fall on Popeye’s sidewalks or parking lot. Rather, the alleged unreasonably dangerous condition is cooking grease located on the unpaved ground between shrubs that divide the parking lot from the open area beyond. Although the Bryants allege a slip and fall, and Popeye’s is a merchant, their claim is beyond the scope of Section 9:2800.6.

Popeye’s motion for summary judgment raises only the issue of whether the Bryants will be able to satisfy their burden of proof under Section 9:2800.6. We have determined that Section 9:2800.6 is not applicable to this case. The summary judgment procedure specifies that summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F(1). Since the motion for summary judgment under consideration raises no other issues, we do not consider any | ^similar elements required by other laws that may be.applicable to this case. Contrast, Tomaso v. Home Depot, U.S.A., Inc., 14-1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 683 (where the motion for summary judgment did not limit appellate review of the elements required by Section 9:2800.6, allowing the court to consider what it recognized as the similar elements required by Louisiana Civil Code article ,2317.1). Accordingly, after de novo review, we And that Popeye’s failed to meet its burden of proof on the motion for summary judgment by pointing out an absence of factual support for an essential element of the Bryants’ claim.

CONCLUSION

The summary judgment granted by the trial court that dismissed the Bryants’ claims is reversed and this matter is remanded for further proceedings. Costs of this appeal are assessed to Premium Food Concepts, Inc. d/b/a Popeye’s Fried Chicken #’4604, and State Farm Fire and Casualty Company.

REVERSED AND REMANDED.

Holdridge, J., concurs

Welch j., concurs without reasons


text:
    Colton P. BOUDREAUX v. PAPA BEAR'S PIZZA, LLC d/b/a Mike's Daiquiris and Grill
    NO. 2016 CA 1173
    Court of Appeal of Louisiana, First Circuit.
    APRIL 26, 2017

      Keith S. Giardina, Baton Rouge, Louisiana, Attorney for Defendant/Appellant Kyle Evans
    Kris A. Perret, Baton Rouge, Louisiana, Attorney for Defendant/Appellant Papa Bear’s Pizza, LLC d/b/a Mike’s Daiquiris and Grill
    Steve C. Thompson, Stephanie E. Robin, James F, d’Entremont, Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee Col-ton P. Boudreaux
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|aThe defendants appeal the confirmation of a default judgment in favor of the plaintiff. We vacate the judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This proceeding arises out of an incident that occurred when the plaintiff, Colton Pi Boudreaux, was punched in the face while he was in a bar known as “Mike’s Daiquiris & Grill,” which is the trade name of the owner of the business, Papa Bear’s Pizza, LLC (Mike’s Bar). Boudreaux sustained facial injuries and filed suit against Mike’s Bar and Kyle Evans, an employee of the bar who, according to the petition, threw the punch. The defendants were served with the petition, but failed to file responsive pleadings, leading Boudreaux to obtain preliminary default judgments against them.

At a default confirmation hearing, Bou-dreaux presented evidence in support of his claim. According to his testimony, Bou-dreaux was paying for a drink when he felt a tap on his shoulder and was suddenly “sucker punched” in the face. He did not see the person actually deliver the blow, but as Boudreaux was falling to the floor, he saw Evans “high fiving” another alleged employee of Mike’s Bar. Boudreaux testified that other employees of the bar walked him outside, pushed him down, kicked him in the ribs, and ripped a band off his wrist that was provided when he entered the bar.

A friend who accompanied Boudreaux to the bar, Nicholas Chiconis, also testified, but Chiconis did not see the punch. He only saw Boudreaux being taken out of the bar by two people who “appeared” to be employees of Mike’s Bar, | ¡¡although Chi-conis did not know them and did not notice any logos or other identifying information on their shirts indicating they were employees of the bar,

Boudreaux was treated in the emergency room shortly after the incident and later underwent surgery to stabilize a nasal fracture, He had follow-up treatment for the facial injuries, as well as headaches. His medical expenses totaled $28,928.29, and he presented documentation and testimony in support of a claim for lost wages of $5,778.75.

After taking the matter under advisement, the trial court signed a judgment confirming the preliminary default and awarding Boudreaux a total of $104,707.04, consisting of $70,000.00 in general damages and $34,707.04 in special damages, plus costs, and judicial interest. The defendants then appeared and filed motions for new trial, which were denied. The defendants now appeal.

DISCUSSION

The defendants assign as error the trial court’s finding that Boudreaux proved the elements of his claim, arguing, in relevant part, the evidence is not sufficient to prove Evans was the person who punched Bou-dreaux, or . that Evans or anyone else involved in the incident was acting-within the course and scope of employment with Mike’s Bar.

Confirmation of a preliminary default judgment is similar to a trial with the defendant being absent. The plaintiff is required to present admissible and competent evidence establishing a prima facie case, proving both the existence and the validity of the claim as though the defendant denied each allegation of the ^petition. See La. Code Civ. Pro. art. 1702A; Arias v. Stotthaven New Orleans, L.L.C., 08-1111 (La. 5/5/09), 9 So.3d 815, 820; Gorman v. Miller, 12-0412 (La.App. 1 Cir. 11/13/13), 136 So.3d 834, 840 (en banc), writ denied, 13-2909 (La. 3/21/14), 135 So.3d 620. Simply stated, in order to confirm a default,’ the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits.. Arias, 9 So.3d at 820; Gorman, 136 So.3d at 840. In doing so,' the plaintiff must adhere to the rules of evidence despite there being no opponent to urge objections. Arias, 9 So.3d at 820; Gorman, 136 So.3d at 840. The sufficiency of evidence offered in support of the confirmation of a default judgment is a factual determination governed by the manifest error standard of review. See Arias, 9 So.3d at 818.

There is a presumption that a default judgment has been rendered upon sufficient evidence to establish a prima facie case and is correct, and the appellant has the burden of overcoming that presumption. However, this presumption does not apply where testimony is transcribed and contained in the record. Schilling v. Bernhard, Brothers Mechanical Contractors LLC, 12-2105 (La.App. 1 Cir. 9/13/13), 186 So.3d 658, 665-66. Because there is a transcript of the testimony in the record before us, the presumption of the validity of the confirmation of the default judgment does not apply.

A default judgment cannot be different in kind from what is demanded in the petition. See La. Code Civ. Pro. art. 1703. Boudreaux alleged in his petition that Evans, while in the course and scope of his employment with Mike’s Bar, committed a battery against him. Other employees, according to the petition, injured Boudreaux when they carried him out of the bar, caused him to land face-down on cement, and kicked him in the stomach. Boudreaux further alleged that Mike’s Bar was vicariously liable for the actions of its employees and was | ^independently negligent for failing to provide adequate security or take other measures reasonably necessary to protect Boudreaux from injury.

For the claim arising out of Evans’ conduct, Boudreaux had to make a prima facie case that Evans committed a battery, meaning Evans made a harmful or offensive contact with Boudreaux, resulting from an act intended to cause him to suffer such a contact. See Landry v. Bellanger, 02-1443 (La. 5/20/03), 851 So.2d 943, 949. It is undisputed that a battery was committed upon Boudreaux. The issue presented, however, is who committed the battery. We must determine whether the record contains sufficient evidence to reasonably support the trial court’s implied factual finding that Evans committed the battery by punching Boudreaux.

While Boudreaux testified that Evans punched him, he later acknowledged that he did not actually see Evans throw the punch. Rather, as demonstrated by the following testimony, Boudreaux only saw Evans “high fiving” another person as Boudreaux was falling:

Q. Do you recall the identity of the person who hit you? Do you know the person who hit you?
A. Yes.
Q. You — do you know — let me rephrase that. At the — did you see the person who hit you? Did you see their face at the time that you wei-e sucker punched?
A. Yes.
Q. The — when did you see their face; when the fist was coming or when — was that after the fact?
A. It was after the fact, whenever I was falling down after I got punched.
Q. What’s his ... name?
A. Kyle Evans.
|fiQ. [Ajfter you were sucker punched in the face, what happened then?
A. I was in shock. I was falling to the ground and as I’m falling to the ground I see Kyle Evans and another Mike’s employee high fiving each other—
Q. Where was—
A. —and celebrating.
Q. I’m sorry. And where was Kyle Evans ... in relation to you when you were falling to the ground?
A. Maybe 2 feet behind me.
Q. Behind you?
A. Yeah, to — my left.
Q. To your left. The same direction where the punch came from?
A. Yes, ma’am.

This testimony is the only evidence offered to prove that Evans was the person who punched Boudreaux. It is entirely circumstantial. Boudreaux relies on two facts — Evans’ proximity to Boudreaux at the time of the punch and his celebratory act of high fiving another person immediately after the punch — to prove another fact: Evans threw the punch. If, as in this case, only circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 2004-1058 (La. 12/1/04), 893 So.2d 1, 5. This does not mean, however, that it must negate all other possible causes. Benjamin, 893 So.2d at 5.

Although Boudreaux testified that Evans was standing near him, he did not testify that Evans was the only person standing near him. To the contrary, at least one other person, the person Evans “high fíved,” was standing near Boudreaux at the time of the punch and was likewise seen “celebrating” after the incident. At a minimum, it is equally plausible that this person, rather than Evans, threw the 17punch. Similarly, it is also reasonably possible that Boudreaux was punched by someone else standing near him, and the exchange between Evans and his purported co-employee had nothing to do with the matter.

While evidence undoubtedly establishes Boudreaux was the victim of a battery, and the abruptness and severity of the offense may have limited his ability to provide more information about the incident, we cannot disregard the burden of proof placed on the plaintiff to confirm a default judgment. Boudreaux had to make a prima facie case that Evans threw the punch, a burden of proof ■ that required Boudreaux to convince the court with competent evidence that he would probably prevail at a trial on the merits. See Arias, 9 So.3d at 820. The circumstantial evidence presented at the confirmation hearing does not satisfy this burden of proof. Cf. Lebourgeois ex rel. Temple v. Keller, 2006-1417 (La.App. 1 Cir. 5/4/07), 2007 WL 1300846 at *4-5 (in suit against law enforcement personnel by survivors of former inmate, circumstantial evidence at trial did not eliminate other reasonable explanations for inmate’s injuries and death). Based upon our review of all of the evidence, the trial court committed manifest error in confirming the default judgment in favor of Boudreaux and against Evans.

Turning next to the claim against Mike’s Bar, Boudreaux alleged that the bar is vicariously liable for the actions of its employees and negligently failed to reasonably protect Boudreaux from injury.

An employer may be held vicariously liable in tort for the intentional acts of its employees. See La. C.C. art. 2320; Carr v. Sanderson Farm, Inc., 15-0953 (La.App. 1 Cir. 2/17/16), 189 So.3d 450, 454. An employer is not vicariously liable, however, merely because his employee commits an intentional tort on the business premises during working hours. Baumeister v. Plunkett, 95-2270 (La. 5/21/96), 673 So.2d 994, 996; Carr, 189 So.3d at 454. Vicarious liability will attach in such a case only if the employee who commits the intentional act does so within | sthe ambit of his assigned duties and in furtherance of his employer’s objective. Carr, 189 So.3d at 454. The intentional tortious conduct of the employee must be so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. Baumeister, 673 So.2d at 996; Carr, 189 So.3d at 454.

The following four factors have been used to determine whether an employee’s intentional tortious conduct is sufficiently connected to his employment duties to impose vicarious liability- on his employer for the conduct: (1) whether the tortious act was primarily employment rooted, (2) whether the violence was reasonably incidental to the performance of the employee’s duties, (3) whether the act occurred on the employer’s premises, and (4) whether it occurred during the hours of employment. Baumeister, 673 So.2d at 996-97; Carr, 189 So.3d at 454. A trial court’s determination that a particular act is within the course and scope of employment for purposes of vicarious liability is a factual finding governed by the manifest error rule. Baumeister, 673 So.2d at 998.

Boudreaux failed to sufficiently prove that Evans was the person who punched him. No evidence was offered of any other conduct by Evans, so the present record contains no basis for imposing vicarious liability on Mike’s Bar,for his actions.

Two other alleged employees of Mike’s Bar, according to the petition, carried Bou-dreaux out, caused him to fall on his face, and kicked him in the stomach. In support of that claim, Boudreaux testified:

A. I saw a big ole puddle of blood and I kind of spaced out for a minute, a second or two, and then they — two bouncers of Mike’s each grabbed underneath my arm and they walked me out there and they pushed me — they grabbed me by my head and pushed me straight to |9the cement, kicked me out. And one guy kicked me in the ribs and another guy ripped off my wrist band.
Q. Okay. Did you hear them say anything to you as they were pushing you out of the door?
A. One guy stated he won’t remember it and then another guy said grab his wrist band.

The only other evidence offered in support of this claim was testimony from Chi-conis, who testified:

A. That evening we both went out to the bar together. We’re in the bar for about maybe 20, 30 minutes and we kind of split up a little bit, but at one point I saw what appeared to be two Mike’s employees kind of dragging [Boudreaux] out of the bar and throw him outside of the bar.
Q. And how do you know — how did you identify them as Mike’s employees?
A. They were both wearing the same shirt and they just appeared to be Mike’s employees by the way that they were dressed.
Q. Did they have any logos or any identifying information on their shirt to indicate they were Mike’s employees?
A. Not that I saw.
Q. Do you have — did you recognize them from previous times of frequenting the joint? - .
A. No.

To impose vicarious liability on Mike’s Bar for the conduct of these individuals, Boudreaux had to prove not only that they were employees of the bar who were working at the time, but also that their intentional acts were within the ambit of their assigned duties and in furtherance of their employer’s objective. See Baumeister, 673 So.2d at 996-97; Carr, 189 So.3d at 454. While the record contains limited evidence the individuals were employees of the bar, it is devoid of evidence of the ambit of their duties or that their intentional actions of throwing Boudreaux to the cement ■and kicking him in the ribs were in furtherance of their employer’s objective. Absent evidence, the court can only speculate as to whether hnthese essential elements are present in this case; however, such speculation falls far short of the factual support required- to satisfy the plaintiffs burden of proof. See Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La. 6/30/00), 764 So.2d 37, 40. The record contains no rear sonable basis for imposing vicarious liability on Mike’s Bar for the intentional conduct of these individuals. The trial court committed manifest error to the extent it found otherwise.

Lastly, Boudreaux alleged that the Mike’s Bar failed to provide adequate security or otherwise reasonably protect his safety. Although business owners are not the insurers of their patrons’ safety, they do have a duty to implement reasonable measures to protect their patrons from the criminal acts of third-parties when those acts are foreseeable. See Ponceti v. First Lake Properties, Inc., 11-2711 (La. 7/2/12), 93 So.3d 1251, 1252-63 (per curiam)-, Posecai v, Wal-Mart Stores, Inc., 99-1222 (La. 11/30/99), 752 So.2d 762, 766. The foreseeability of the criminal conduct and the gravity of the risk determine the existence and the extent of the defendant’s duty. See Ponceti, 93 So.3d at 1252-53; Posecai, 752 So.2d at 768. The most important factor to be considered is the existence, frequency, and similarity of pri- or incidents of crime on the premises, but the location, nature, and condition of the property should also be taken into account. Posecai, 752 So.2d at 768. Whether a duty is owed is a question of law. Posecai, 752 So.2d at 766.

Boudreaux presented no evidence of the existence,1 frequency, or similarity of prior incidents involving patrons in Mike’s Bar being unexpectedly punched. The trial court thus erred as a matter of law to the extent it found, based upon the present record, a duty by Mike’s Bar to protect Boudreaux from the assailant’s intentional conduct.

InFor the foregoing reasons, the trial court erred in confirming the default judgment. In light of this finding, we pre-termit consideration of the defendants’ remaining assignments of error.

CONCLUSION

The judgment of the trial court signed on August 20, 2105 is vacated, and this matter is remanded for further proceedings. All costs of this appeal are assessed to Colton P. Boudreaux. ■

JUDGMENT VACATED; CASE REMANDED.

      . The record on appeal contains the preliminary default judgment against Evans but does ■not contain the preliminary default judgment against Mike's Bar. According to Boudreaux; the preliminary default against Mike's Bar was entered on January 29, 2015. Mike’s Bar does not dispute this on appeal. Because we vacate the default judgment on other grounds, we do not further address this omission from the record.

      . Judge Donald Johnson, who presided over the confirmation hearing and signed the confirmation of default judgment, initially referred the motions for new trial to the judge for the division to which the case was originally allotted, then, ¿ipon further consideration, ruled on the motions and denied them. While this appears to have been error, we do not consider the issue' on appeal, because neither party objected in the trial court nor assigned the matter as error on appeal. See La. Code Civ. Pro. art. 253.3D; La. Dist. Crt. Rules 9.2 and 9,3; See also Barnett v. State Department of Health & Hospitals, 15-0633 (La.App. 1 Cir. 11/9/15), 2015 WL 6951294; Oliver v. Cal Dive International, Inc., 02-1122 (La.App, 1 Cir. 4/2/03), 844 So.2d 942, 948, writs denied, 03-1230, 03-1796 (La. 9/19/03), 853 So.2d 648, 648-49.

      . Boudreaux's petition also includes a spoliation-of-evidence, claim against Mike’s Bar based on allegations that the defendant intentionally or negligently destroyed security camera video of the incident; however, no evidence was presented in support of the claim. We note that Louisiana does not recognize a duty to preserve evidence in the context of negligent spoliation; however, an adverse presumption may arise when a litigant had access to evidence and did not make it available or destroyed it. See Reynolds v. Bordelon, 14-2362 (La. 6/30/15), 172 So.3d 589, 600. Because no evidence was offered at the confirmation hearing to support the application of the adverse presumption, its applicability in this case is not presently before the court and, therefore, is not addressed herein.