W.L. WAGNER, et ux. v. FAIRWAY VILLAS CONDOMINIUM ASSOCIATES, INC., et al., 813 So. 2d 512

|GREMILLION, Judge. The defendant, Rael Inc., appeals the judgment of the trial court granting a permanent injunction in favor of the plaintiffs, W.L. and Nina Wagner, ordering it to restore water service to their condominiums located in the Emerald Hills Resort. After further review, we reverse. FACTS Hodges Gardens and its associated resort were established by Andrew Jackson Hodges in Florien, Louisiana. Prior to his death in 1966, Mr. Hodges sold the resort and contracted to continue providing water to it from his well located on the property containing the garden. The resort became known as Toro Hills Resort.

At some point, condominiums were constructed on the resort near the golf course. They also received their water from the supply received by the resort’s hotel from Hodges Gardens. The Wagners purchased their first condominium in 1989, but did not begin living there permanently until 1991. Initially, they paid sixty dollars per month for services received from Toro Hills, which included water, but this increased to seventy-five dollars per month after 1991.

The Wagners purchased their second condominium approximately one year prior to the date of trial, but have never paid any additional amounts for services associated with this condominium. In addition to owning these two condominiums, the Wag-ners manage other condominiums that are part of the Fairway Villas Condominium Association, Inc. In February 1997, Rael purchased Toro Hills, including the golf course and all of the land surrounding the condominiums. Thereafter, it became known as the Emerald Hills Resort. Steve Alford is the sole shareholder of Rael.

Following | ¿its purchase, Rael entered into a contract with the A.J. and Nona Trigg Hodges Foundation for the sale of surplus water from Hodges Gardens to the Emerald Hills Resort. The contract provided for such at the rates prevailing for the sale of water in the Town of Many, and further provided that the water would solely be used “within the motel or hotel and adjacent condominiums constituting Emerald Hills Resort.” Prior to the sale, the Wagners entered into a sendee agreement with ' George Gouffray, the president of Toro Investment Corporation, on February 22, 1996.

The agreement provided that the listed services would continue at the amount of seventy-five dollars per month, would not be increased unless agreed to by the Wag-ners, and would be binding on all future owners of the property. Although this agreement was filed with the Sabine Parish Clerk of Court on July 10, 1996, it was not included in the sale of the resort at Alford’s insistence. In June 1997, the Wagners filed suit seeking a declaratory judgment that the February 22, 1996 service agreement was binding against Rael.

Rael reconvened against the Wagners on a non-related issue pertaining to the ownership of their second condominium. Following a hearing, the trial court declared that the recorded service agreement constituted a valid personal servitude, via a right of use, in favor of the Wagners. On appeal, a five judge panel of this court reversed the trial court’s judgment finding that no personal servitude arose as a result of the service agreement. See Wagner v. Alford, 98-1726 (La.App. 3 Cir. 6/30/99); 741 So.2d 884 (Doucet, C.J., Cooks, J. dissenting), writ denied, 99-2265 (La.11/5/99); 750 So.2d 192.

Following this judgment, but prior to October 1999, the services provided to the Wagners had been reduced to only the provision of water. In October, Rael refused the Wagners’ seventy-five dollar check and, without warning, shut off their water the day before Thanksgiving. On November 24, 1999, the Wagners filed 13a Petition for Damages and Injunctive Relief seeking to have their water restored. Named as defendants were the Fairway Villas Condominium Association, Inc., Rael, and Toro Investment Corporation.

On December 14, 1999, the trial court issued a temporary restraining order directing Rael to immediately restore water service to the Wagner’s condominiums. The Fairway Villas Condominium Association was later dismissed from the action on an exception of no cause of action. Although there is no record of it, Rael filed an exception of res judicata based on our prior decision; however, this exception was denied by the trial court.

Thereafter, Rael answered and reconvened against the Wagners seeking payment of seventy-five dollars per month per condominium from February 1997, through the date of the trial if a valid contract was held to have existed between the parties. Following a trial on the merits, the trial court rendered judgment in favor of the Wagners ordering the December 14, 1999, preliminary injunction be made permanent. It further awarded damages in the amount necessary for the installation of a water meter on the water line supplying their condominiums, and ordered the damages paid within thirty days.

Finally, the trial court denied Rael’s reconventional demand. At Rael’s request, written reasons for judgment were issued by the trial court on February 20, 2001. This appeal by Rael followed. ISSUES On appeal, Rael raises four assignments of error: 1) The trial court erred in finding it liable to the Wagners for a breach of contract. 2) The trial court erred by finding evidence of a predial servitude benefit-ting the Wagners’ property. 3) The trial court erred by finding it hable to the Wagners for an abuse of rights. 4) The trial court erred by dismissing its reconventional demand.

URES JUDICATA In its first assignment of error, Rael argues that the trial court erred in finding it hable for a breach of contract because the Wagners’ claims were barred pursuant to res judicata based on our prior decision. In the prior matter, the Wagners sought, via a declaratory judgment, to have the February 22, 1996 service agreement declared binding and enforceable against Rael. The trial court held that it was based on a finding that a personal servitude, right of use, arose from the agreement.

We reversed the trial court’s judgment finding: Only those advantages that may be provided by a predial servitude are permissible rights of use. La.Civ.Code art. 640. Further, “[a] right of use is regulated by application of the rules governing usufruct and predial servitudes to the extent that their apphcation is compatible with the rules governing a right of use servitude.” Wagner, 741 So.2d at 887.

Applying these precepts, we held that the provision of utilities was not a permissible right of use since it related “solely to the resort services to be provided for the plaintiffs,” and did “not relate to the plaintiffs’ right of use of the servient estate.” This, we held, failed to comport with the intent of La.Civ.Code art. 651, which provides: The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it.

He 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. However, in a footnote, we stated, ‘We have not been asked to, nor do we, consider the enforceability of any potential contractual obligation under the agreement.” Wagner, 741 So.2d at 888, n. 8. In Avenue Plaza, L.L.C. v. Falgoust, 96-0173, pp. 4-5 (La.7/2/96); 676 So.2d 1077, 1079, the supreme court stated the law pertaining to res judicata: Res judicata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit.

LSA-R.S. 13:4231. It promotes judicial efficiency and final resolution of disputes. Terrebonne Fuel & Lube v. Placid Refining, 95-0654, 95-0671, pp. 11-12 (La. 1/16/96); 666 So.2d 624, 631. A judgment determining the merits of a ease is a final judgment. La.C.C.P. art. 1841. See also, Tolis v. Board of Sup’rs of Louisiana State University, 95-1529 (La.10/16/95); 660 So.2d 1206. A valid and final judgment is conclusive between the same parties, except on appeal or other direct review. LSA-R.S. 13:4231.... A final judgment from which there can be no appeal acquires the authority of the thing adjudged.

La.C.C. art. 3506(31). Once a final judgment acquires the authority of the thing adjudged, no court has jurisdiction to change the judgment, regardless of the magnitude of the final judgment’s error. Tolls at 3; 660 So.2d 1206-1207. The supreme court went on to state: In 1990, the Legislature amended LSA-R.S. 13:4231, the Louisiana res ju-dicata statute. Terrebonne Fuel addressed the amended statute.

The original Louisiana doctrine of res judicata was based on a correctness presumption rather than a cause of action’s extin-guishment: a decided case precluded a second suit only if the prior suit involved the same parties, the same cause, and the same object of demand. Terrebonne Fuel at 12; 666 So.2d at 632. However, the amended res judicata statute’s chief inquiry is whether the second action asserts a cause of action which arises out of the transaction which was the subject matter of the first action. Id. Id. at 1080. Several exceptions to the general rule of res judicata are provided in La.R.S. 13:4232: A.

A judgment does not bar another action by the plaintiff:

(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;

(2) When the judgment dismissed the first action without prejudice; or, (3)When the judgment reserved the right of the plaintiff to bring another action. | fiIn the present matter, the trial court rendered judgment in favor of the Wagners finding that an enforceable obligation existed between them and Rael under three separate theories of law: contract, servitude, and abuse of right. The only question rightly before the trial court concerned the enforceability of any potential contractual obligations pursuant to the February 22, 1996 service agreement.

This was the only issue reserved to the Wagners in our prior judgment. All other issues were barred by res judicata since they asserted a cause of action which arose out of the same transaction which was the subject matter of the prior action. Even if res judicata did not prevent us from addressing these issues, we would still reverse the trial court’s finding that Rael was required to provide the Wagners with water due to the existence of a servitude and because of an abuse of rights.

The trial court held that the water supplied to the Wagners through pipes running under the resort’s property constituted an apparent predial servitude which was established via destination of the previous owner. This finding is clearly wrong. PREDIAL SERVITUDE A predial servitude is either apparent or nonapparent. La.Civ.Code art. 707. An apparent servitude is one which is “perceivable by exterior signs, works, or constructions, such as a roadway, a window in a common wall, or an aqueduct.” Id.

Nonapparent servitudes have “no exterior signs of their existence; such as the prohibition of building on an estate or of building above a particular height.” Id. Apparent servitudes are acquired by “title, destination of the owner, or by acquisitive prescription.” La.Civ.Code art. 740. Nonapparent servitudes can only be acquired by title, “including a declaration of destination under

Article 741.” La.Civ. Code art. 739. Destination of the owner is described in La.Civ.Code art. 741: Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the Restates belonged to different owners.

When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence of right and a nonapparent servitude comes into existence if the owner has previously filed for registry in the conveyance records of the parish in which the immovable is located a formal declaration establishing the destination. In this instance, the pipes supplying water to the condominiums constitutes a nonapparent, rather than an apparent, servitude. No evidence was admitted establishing that the pipes could be perceived by any exterior works, such as a meter.

Lee Musick, the general manager of Hodges Gardens, testified that there were no individual meters on the water lines leading from the resort to the condominiums. Rather, he stated that the resort’s water meter was located across Highway 171 on Hodges Garden’s property approximately one mile from the resort’s water tank. In his treatise on pred-ial servitudes, Professor Yiannopoulos stated: The classification of a particular servitude as apparent or nonapparent depends on facts and circumstances rather than on the nature of the servitude. Thus, a servitude of right of way may be apparent or nonapparent.

If the right of way is exercised over an arid tract of land, without a trace, the servitude is nonapparent; if it is exercised on a paved road or a railway tract, the servitude is apparent. Likewise, if the pipes of an aqueduct are buried into the ground, the servitude is nonapparent; if the pipes are visible, the servitude is apparent. 4 A.N. Yiannopoulos, Louisiana Civil Law Teeatise, Predial SeRVitudes, § 13 at 41-42 (2nd ed. 1997) (footnotes omitted) (emphasis added).

Accordingly, the pipes running under the resort’s ground and leading to the condominiums constituted a nonap-parent servitude which could only be established by title. Since there is no evidence of a declaration of destination being filed for registry in the conveyance records of the clerk’s office prior to the division of the two estates, a servitude did not come into existence by way of destination of owner. IsA servitude may also be established by title, including

an act under private signature. La.Civ.Code art. 739; see also La. Civ.Code arts. 722 and 1839. Although the service agreement constituted

an act under private signature, its existence in the public records does not render it a valid predial servitude. See Camel v. Waller, 526 So.2d 1086 (La.1988); Phillips v. Parker, 483 So.2d 972 (La.1986). Our prior opinion has already held that the provision of utilities, including water, was not a valid predial servitude since it required the ser-vient estate to perform affirmative duties, in contravention of La.Civ.Code art. 651. We agree with our prior opinion that the services provided in the service agreement are more akin to personal obligations which are only binding upon the parties to the argument.

Since this was a personal obligation, Rael would only be bound by the service agreement had it assumed the obligation in the purchase of Toro Hills. Since it did not, it is not bound by the agreement. ABUSE OF RIGHT OF OWNERSHIP We further find that the trial court was clearly wrong in finding Rael abused its right of ownership by refusing water service to the Wagner’s condominiums. In Steier v. Heller, 31,733, pp. 6-7 (La.App. 2 Cir. 5/5/99); 732 So.2d 787, 790-91, the court stated: The doctrine of abuse of rights has been invoked sparingly in Louisiana. Massachusetts Mut. Life Ins. Co. v.

Nails, 549 So.2d 826 (La.1989); Oliver v. Central Bank, 26,932 (La.App. 2nd Cir.5/10/95), 658 So.2d 1316, review denied, 95-1469 (La.9/22/95), 660 So.2d 477; G.I.’s Club of Slidell, Inc. v. American Legion Post No. 371, 504 So.2d 967 (La.App. 1st Cir.1987). The abuse of rights doctrine is a civilian concept which is applied only in limited circumstances because its application renders unenforceable one’s otherwise judicially protected rights. Massachusetts Mut. Life Ins. Co. v. Nails, supra; Trus-chinger v. Pak, 513 So.2d 1151 (La. 1987); Oliver v. Central Bank, supra. ...

The abuse of rights doctrine applies only when one of the following conditions are met: |fl(

l) the predominant motive for exercise of the right is to cause harm; (2) there is no serious or legitimate motive for exercise of the right; (3) the exercise of the right violates moral rules, good faith, or elementary fairness; or (4) the exercise of the right is for a purpose other than that for which it was granted. Massachusetts Mut. Life Ins. Co. v. Nails, supra; Truschinger v. Pak, supra; Lilawanti Enterprises, Inc. v. Walden Book Co., Inc., 95-2048 (La.App. 4 Cir.2/29/96), 670 So.2d 558; Owens & Sons, Inc. v. Casey, 94-2580 (La.App. 4 Cir. 7/26/95), 659 So.2d 541; Oliver v. Central Bank, supra; Mclnnis v.

McInnis, 618 So.2d 672 (La.App. 2nd Cir. 1993); G.I.’s Club of Slidell, Inc. v. American Legion Post No. 371, supra. The trial court determined that Alford’s actual reason for shutting off the Wagners’ water supply was to render their property uninhabitable and force them to agree to a new contract. It based this on the fact that Alford had entered into a contract with Northwestern State University for the provision of water to its two condominiums. The trial court relied on the deposition testimony of Musick to substantiate Alford’s testimony concerning the contract with Northwestern.

However, Musick made no mention of this in his deposition. He did state that it would be easy to place a water meter on the lines supplying the condominium and accept money from the condominium owners. We find error with the trial court’s finding. Alford testified that he offered a contract to the Wagners in mid-1997, which would provide them with water, sewerage, garbage, and ground maintenance for forty-five dollars per condominium per month.

Although no agreement was reached with the Wagners, he stated that they continued paying seventy-five dollars per month for their first condominium, but paid nothing for their second condominium or the twelve timeshare units they controlled even though a water bill was sent to them pertaining to these units. Alford stated that he terminated the water supply to the condominiums after the completion of the prior suit in November 1999, because he thought that the provision of water was addressed |inin that judgment and that he was no longer required to provide it.

He further stated that he did not believe a contract existed between Rael and the Wagners for the supply of water. Although he admitted to the contract with Northwestern, he stated that he did not want to be in the water business and that he cut off the water because he did not want to do business with the Wag-ners.

When questioned by the trial court, he expounded on that statement by stating that he had been in court with them for approximately three and a half years and that he felt they were stealing from him by using the water for their condominiums and the twelve timeshares without paying anything other than the seventy-five dollars they paid each month for their first condominium. After reviewing the evidence, we do not find that any of the conditions necessary to find an abuse of right by Rael have been met.

Alford’s predominant motive for cutting off the water was the failure of the Wagners to pay for the water or to agree to a new contract for the provision of water. This was a legitimate motive. Further, Alford stated that he only cut off their water supply after the judgment rendered by this court became final. Thus, the exercise of the right did not violate moral rules, good faith, or elementary fairness. Nor do we find that the exercise of the right was for a purpose other than that for which it was granted.

A public entity or private company providing water to a residence has the right to cut that supply off upon the failure of the party to remit payment. Accordingly, we do not find that Rael has abused the right of ownership of its property by cutting off the Wagners’ water supply. CONTRACTUAL OBLIGATION The trial court held that a valid contract existed due to tacit acceptance based on Rael’s continued acceptance of payment from the Wagners for the reduced | nservices provided.

The trial court based its decision on Rael’s continued provision of water to the Wagners until November 19, 1999, despite our judgment of June 30, 1999. It stated that “[t]his action indicates his knowledge that an obligation to supply water existed regardless of the validity of the written services agreement.” However, this overlooks the fact that our judgment did not become final until after writs were denied by the supreme court on November 5, 1999. Rael purchased the resort in February 1997. In mid-1997, Alford presented a package for services to the Wagners, which they refused.

In June 1997, they filed the original suit seeking a declaratory judgment based on the February 22, 1996 service agreement. Our opinion in that matter was rendered on June 19, 1999, and became final upon the denial of writs on November 6, 1999. Thus, we find that there was no consent on Rael’s part to the prior service agreement, and that its actions did not constitute acceptance of the agreement during the pen-dency of the prior suit. Accordingly, we find that no valid contract existed between Rael and the Wagners. The judgment of the trial court is reversed.

RE CONVENTIONAL DEMAND In its final assignment of error, Rael argues that the trial court erred in dismissing its reconventional demand. In the event that the trial court finds that a valid contract existed between it and the Wag-ners, Rael asked that it be awarded seventy-five dollars per month per condominium from February 1997 through the date of trial. However, since we have reversed the trial court’s judgment with regard to the existence of a valid contract, this issue has been rendered moot.

CONCLUSION For the foregoing reasons, we find that our judgment of June 19, 1999, was a final judgment which became res judicata and conclusive between the parties |1?!on all issues, except contractual, upon the denial of writs by the supreme court on November 5, 1999. The judgment of the trial court finding that a valid contract existed between the Wagners and Rael, Inc. is reversed. The costs of this appeal are assessed to the plaintiffs-appellees, W.L. and Nina Wagner. REVERSED. WOODARD, J., dissents with written reasons. .

These services included garbage pickup, sewerage and water, cable television and telephone, upkeep and maintenance of property, parking spaces, lifetime golf membership and privileges for family members, use of personally owned golf carts on golf course, use of all facilities at no additional charge, one-half price for motel rooms, one-half price for guests’ golf green fees, and one-half price for guests' golf cart fees.