STEPHEN J. WINDHORST, Judge.
Appellants, Bayou Fleet Partnership and Bayou Fleet, Inc. ("Bayou Fleet"), appeal the trial court's April 8, 2013 judgment. For the reasons that follow, the judgment is reversed in part, and affirmed in part.
Of the two parcels of property at issue in this litigation, one is commonly referred to as "Rivarde Tract." Rivarde Tract is a parcel of batture property, i.e., property between the Mississippi River and its levee, in Hahnville, Louisiana, near the lower Mississippi River mile marker 125. This parcel measures 312 feet wide along the Mississippi River, and is approximately 1600 feet deep. On June 2, 1999, a Judgment of Partition of Immovable Property was rendered in the 24th Judicial District Court for the Parish of Jefferson
The property downriver from Lots B and C is known as Homeplace Plantation, and is also owned by Home Place. Homeplace Plantation is presently leased in part to James Marine,
In 1999, Bayou Fleet was granted a permit by the U.S. Army Corps of Engineers to "install and maintain two anchor piles, chains, and bouys for a one tier barge fleet in the Mississippi River, RDB, at a point about 124.6 miles above the Head of Passes, near Hahnville, Louisiana, in St. Charles Parish."
Bayou Fleet instituted the present proceeding by filing a Petition for Right of Passage contending that its property (Lots B and C) is currently an enclosed estate having no access by public or private road and is surrounded by property owned by Neal and Mary Clulee ("the Clulees") and/or Home Place on the North, South, and West sides and by the Mississippi River on the East side. Bayou Fleet claimed that it was entitled to a gratuitous right of passage over the road previously known as the Morgan Street Extension, all the way up to the Mississippi River's edge and over and across Home Place's property (Lot A) at a location above the normal high water mark, as the lower lands are primarily composed of wetlands and are impassable. Bayou Fleet contended that without this right of passage it would be unable to use, maintain, or develop its property. Bayou Fleet claimed that it has been unable to repair and maintain the mooring system located in the Mississippi River in front of its property, resulting in the potential for barges to drift over and in front of Home Place's downriver property when the river is high.
The Clulees and Home Place answered the petition and filed a reconventional demand
After a trial on the merits, the trial court found in favor of plaintiffs-in-reconvention, Mary and Neal Clulee and Home Place, and against defendant-in-reconvention, Bayou Fleet, for damages in the amount of $140,000.00. On the original demand, the trial court granted Bayou Fleet a non-gratuitous right of passage. Bayou Fleet appealed.
In its first assignment of error, Bayou Fleet contends that the trial court erred in awarding damages to Home Place. Bayou Fleet argues that shareholders or members of an incorporated entity cannot bring an action for mental anguish, frustration, or inconvenience. Bayou Fleet contends that the entity, Home Place, is the proper party to bring a claim for its damages for trespass and that Mary and Neal Clulee, individually, as owners and/or members of Home Place, are not proper parties to bring an action for trespass concerning property owned by Home Place. Bayou Fleet contends that since the trial court found that Home Place did not prove any business losses, such as leases or profits, Home Place is not entitled to any damages. Furthermore, Bayou Fleet contends that the trial court erred in awarding nominal damages in the amount of $140,000.00 based on Phillip Family, LLC v. Bayou Fleet Partnership, 12-565 (La.App. 5 Cir. 2/21/13), 110 So.3d 1158.
An appellate court may, sua sponte, raise the peremptory exceptions of no right of action and no cause of action. La. C.C.P. art. 927B; See also Ezzell v. Miranne, 13-349 (La.App. 5 Cir. 12/30/13), 131 So.3d 1093, 1098 n. 4; Moreno v. Entergy Corp., 10-2268 (La.2/18/11), 64 So.3d 761, 762.
An exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Marks v. Third Dist. Volunteer Fire Dept., 13-383 (La.App. 5 Cir. 12/30/13), 131 So.3d 1099, 1101. An exception of no right of action assumes the petition states a valid cause of action and questions whether the plaintiff has a legal interest in the subject matter of the litigation. Id. No evidence may be introduced to support or controvert an exception of no cause of action and the facts alleged in the petition must be accepted as true. Id.; La. C.C.P. art. 931. Conversely, evidence may be introduced to support or controvert and exception of no right of action. Id. Any doubt as to the sufficiency of the petition to state a cause of action or whether a plaintiff has a right of action must be resolved in favor of the plaintiff.
The personality of a corporation is distinct from its members. La. C.C. art. 24. Only the corporation, not its members, may sue to recover any damages it has sustained. Taylor v. Dowling Gosslee & Associates, Inc., 44,654 (La.App. 2 Cir. 10/7/09), 22 So.3d 246, 253. A shareholder has no separate or individual right of action against third persons for wrongs committed against or damaging to the corporation. Id., citing Glod v. Baker, 02-988 (La.App. 3 Cir. 8/6/03), 851 So.2d 1255, writ denied, 03-2482 (La.11/26/03), 860 So.2d 1135. This same rule applies even
The trial court awarded damages in favor of Mary and Neal Clulee and Home Place against Bayou Fleet in the amount of $140,000.00. It is clear from the record that Home Place, an incorporated entity, is the owner of the property at issue in the claim for trespass. Mary and Neal Clulee are owners and/or members of Home Place and thus, individually, have no right or cause of action for trespass as to property owned by Home Place. It is well settled that individuals who do business as a corporation and avail themselves of the benefits of incorporation remain separate from the corporation, and may not individually sue for damages incurred by the corporation. Accordingly, we find that the trial court erred in awarding damages to both Mary and Neal Clulee, individually, and to Home Place. If an award for damages is appropriate, the only proper party entitled to receive that award is Home Place.
A trespass occurs when there is an unlawful physical invasion of the property or possession of another person. Sellers v. St. Charles Parish, 04-1265 (La. App. 5 Cir. 4/26/05), 900 So.2d 1121, 1127. It is incumbent upon the plaintiff to show damages based on the result or the consequences of an injury flowing from the act of trespass. Id. The damages must be proved by a preponderance of the evidence, and this burden of proof may be met by either direct or circumstantial evidence. Id. One who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress, and inconvenience. Id. However, minimal and normal worry and inconvenience are not compensable. See Griffin v. Abshire, 04-0037 (La.App. 3 Cir. 6/2/04), 878 So.2d 750, 758, writ denied, 04-1663 (La.10/8/04), 883 So.2d 1018; Vial v. South Central Bell Telephone Co., 423 So.2d 1233, 1239 (La.App. 5 Cir.1982), writ denied, 432 So.2d 265 (La.1983).
In Louisiana, only compensatory and not punitive or exemplary damages are recoverable for injury to property. M & A Farms, Ltd. v. Town of Ville Platte, 422 So.2d 708, 711 (La.App. 3 Cir.1982). In assessment of damages arising out of trespass the trial court has much discretion, but the damage must be certain, and the discretion exercised only to the extent of the damage and ascertained from all of the facts and circumstances. Id. Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all of the facts and circumstances. Britt Builders, Inc. v. Brister, 618 So.2d 899 (La.App. 1 Cir.1993). However, a corporate entity cannot experience mental anguish. M & A Farms, Ltd., 422 So.2d at 711, citing Wendorf v. Corley, 394 So.2d 1252 (La.App. 3 Cir.1980).
The trial court found that Bayou Fleet accessed and used the Clulee property in question over a ten year period and thus, found that Bayou Fleet trespassed over the property for the entire ten years. The trial court also found that the Clulees and Home Place's claims of lost business opportunities, lost rentals, and reduction in property value were not corroborated by any competent evidence. In finding that the claim for trespass was established by a preponderance of the evidence, the trial
Robin Durant, managing partner
Additionally, Mr. Durant testified that Tier 7 is located adjacent to Bayou Fleet's ownership of Lots B and C, approximately 215 feet in front on the river just above Home Place's downriver property (Homeplace Plantation). Prior to the installation of the monopoles in 2010, Tier 7 was kept in place by two deadmen located on Bayou Fleet's property. Mr. Durant testified that barges do drift in front of the downriver property owned by Mr. Clulee. He testified that "[i]t's not infrequent, but it's not every day." Mr. Durant testified that the barges would only hang over the downriver property for a couple of hours or less.
Mr. Durant testified that prior to 2005, Bayou Fleet had to maintain the deadmen two to three times a year. He acknowledged that for short periods of time when the river was high, the spar barge would drift such that Tier 7 would encroach upon the property owned by the Clulees. Mr. Durant testified that when the river has a "bump in it" (large amount of rain causing the river to rise), Bayou Fleet would not adjust chains on the deadmen if the river was only going to rise for short period of time. Mr. Durant testified that he sent a letter to the U.S. Army Corps of Engineers to explain this "sluffing down." He testified that he had no intent to block the Clulees access to their property.
After 2005, Mr. Durant testified that there was drifting or moving of Tier 7 because he could not get to the mooring system to maintain it. Mr. Durant testified that there was no way to prevent movement of the spar barge at Tier 7 down river in front of the Clulees' property, at least no way "economically."
The Clulees testified that they never gave Bayou Fleet permission to overhang or fleet in front of their downriver property and the overhang or fleeting occurred continuously, though not every day, from 1999 to 2010. The Clulees submitted numerous photographs from 1999 to 2010 that depicted overhanging or fleeting by Bayou Fleet in front of the downriver property.
The Clulees further testified that although the property was currently leased, they were unable to market the remainder of the downriver property because they had no water access due to Bayou Fleet's fleeting. Mr. Clulee conceded that the fleeting did not occur on part of the downriver property. Mr. Clulee testified that he believed he lost $200,000.00 a year because of his inability to market the downriver property, but conceded that he did not have any documentation with him to
Considering the evidence and testimony, we find that the trial court did not err in finding that Bayou Fleet trespassed on the upriver and downriver property owned by Home Place. While Home Place is legally entitled to an award of damages for the trespass, we can find no evidence to support the award given by the trial court. The property did not suffer any physical damage and Home Place did not establish its claims of lost business opportunities, lost rentals, reduction in property value, or inability to market property. The $140,000.00
In its second assignment of error, Bayou Fleet contends that the trial court erroneously awarded passage across Lot A that is burdensome and economically prohibitive. The passage awarded would require Bayou Fleet to build roadways horizontally across Lot A and vertically along its own property to the river. Bayou Fleet contends that this route is unreasonable and impractical, considering that Rivarde Tract is bordered by private roadways on its upriver and downriver borders which are be suitable for the light traffic Bayou Fleet previously utilized.
A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. C.C. art. 646. The owner of an enclosed estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. La. C.C. art. 689. The owner of the enclosed estate may not demand the right of passage anywhere he chooses. La. C.C. art. 692. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands. Id. However, La. C.C. art. 694 provides that if property becomes enclosed due to a partition, then passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the partition does not mention a servitude of passage. This provision is mandatory
Bayou Fleet, as owner of the dominant estate (Lots B and C), seeks a right of passage over the portion of the Morgan Street Extension privately owned by Home Place and a portion of the adjacent servient estate, also owned by Home Place (Lot A). The route proposed by Bayou Fleet would travel the entirety of the private portion of the Morgan Street Extension abutting Lot A and would cross the width of Lot A which fronts the Mississippi River to reach Lots B and C.
The trial court found that Bayou Fleet's property (Lots B and C) became an enclosed estate when Rivarde Tract was subdivided into Lots A, B, and C in the 1999 partition proceeding. A review of the record indicates that the trial court did not err in that determination.
Bayou Fleet contends that it is entitled to a gratuitous right of way traversing the Morgan Street Extension, both the public and private portions, and across the batture that fronts Lot A to access Lots B and C owned by Bayou Fleet.
Robin Durant testified that he used this route prior to and after the partition. He testified that he used this route about 200 times in 15 years (1992 to 2005). Mr. Durant testified that he informed his employees before the partition to utilize Morgan Street, including Morgan Street Extension to access Bayou Fleet's property. He assumed that they always used this route to gain access to Bayou Fleet property. Mr. Durant admitted that pre-partition (1993, 1994, or 1995), he was able to access a different part of his property by a route between Bayou Fleet's property and Homeplace Plantation (the downriver property) that did not involve the use of Morgan Street Extension. During that time frame, Bayou Fleet used the other route to install posts or railroad ties to separate Bayou Fleet property and Homeplace Plantation.
Mr. Durant testified that in 1996 or 1997, Bayou Fleet was not using their land on Rivarde Tract for any purpose. He testified that the land had been excavated and was in litigation. Since Bayou Fleet only owned an undivided two-thirds interest in the property pre-partition, it was not interested in trying to develop anything while another party still owned an undivided one-third interest in the property. Mr. Durant testified that Bayou Fleet filed a partition by licitation in 1996 against the one-third interest owner, and the property was partitioned in kind in June of 1999 with Bayou Fleet owning two-thirds of the property (Lots B and C) and Home Place owning one-third of the property (Lot A).
John Batson testified that he worked for Bayou Fleet from January 2000 to December 2004. Once a month he would check on the deadmen and cut the grass. The equipment he used was located in a shed on Bayou Fleet property. Mr. Batson testified that he took three different routes to access Bayou Fleet's property. Although Mr. Batson testified that he used Morgan Street in two of the routes, he conceded that he never drove down the side of the Morgan Street Extension owned by the Clulees.
Mitchell Folse testified that since his employment with Bayou Fleet in 2005, he personally went to Tier 7 twice a year to check on the deadmen, but he only used a "Joe Boat." He testified that when he started working, he was told that he could not use any of the roads and he never crossed the property or road owned by the Clulees.
Neal Clulee testified that he owned Lot A and Morgan Street.
Based on the testimony, Bayou Fleet failed to establish that it is entitled to a gratuitous right of way travelling the entirety of Morgan Street, including the Morgan Street Extension, the public and private portions, and then across the batture at the front of Lot A to access its property located on Lots B and C. To obtain a gratuitous right of way, Bayou Fleet had to prove that the passage requested was previously used or exercised prior to the partition. The evidence presented indicates that Mr. Durant seldom used the proposed route prior to the partition, and the route was not used by Bayou Fleet's employees prior to the partition in 1999. The testimony established that prior to the partition, Bayou Fleet accessed their property near the boundary of Home Place's downriver property by a different route. Because the requested passage was not previously used or exercised prior to the partition, La. C.C. art. 694 is inapplicable.
Bayou Fleet's remedy is therefore provided by La. C.C. art. 692, which entitles Bayou Fleet to passage along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands. The route determined by the trial court is the shortest, least injurious route over the servient estate (Lot A) owned by Home Place.
For the reasons stated above, the judgment granting general damages to plaintiffs-in-reconvention, Mary and Neal Clulee and Home Place Batture Leasing, Inc., and against defendant-in-reconvention, Bayou Fleet Partnership, for damages in the amount of $140,000.00 is hereby reversed. The judgment granting Bayou Fleet Partnership a right of passage is hereby affirmed.
REVERSED IN PART; AFFIRMED IN PART.
