ELIZABETH MAGNER AND MICHAEL MAGNER v. MICHAEL DEAS (2026)

This appeal arises from a dispute between neighbors regarding a petition for permanent injunction and right of use. Michael Deas (“Mr. Deas”) appeals the trial court's January 6, 2025 judgment that granted a permanent injunction in favor of plaintiffs, Elizabeth W. Magner and Michael W. Magner (collectively, the “Magners”), which provides them with limited right of use to access Mr. Deas's property for the purpose of repairs. Mr. Deas also seeks review of the trial court's March 19, 2025 judgment denying his motion for new trial. For the reasons to follow, we affirm both judgments.

FACTS AND PROCEDURAL HISTORY

The Magners and Mr. Deas own neighboring residences located in the French Quarter. The Magners own the residence located at 916 Governor Nicholls Street and Mr. Deas owns the residence next door at 914 Governor Nicholls Street (hereinafter referred to as “the Magner Residence” and “the Deas Residence,” respectively). The Deas Residence contains two alleys. The Magner Residence has no side setbacks, abuts one side of the Deas Residence, and occupies the entire lot on which it sits.

The Magner Residence suffered significant water and roof damage after Hurricane Ida. To repair the damages, and in light of the configuration of the residences, the Magners require access to Mr. Deas's north alley. The repairs will require workers to construct a two-story scaffold in the north alley, which would remain there for a period not exceeding twenty-one days. After months of negotiations, Mr. Deas refused the Magners’ request for access to the alley.

Thereafter, on June 21, 2022, the Magners filed a “Verified Petition for Declaratory Relief, Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction”. The Magners requested 1) a declaratory judgment recognizing a servitude in favor of the Magner Residence over Mr. Deas's property for the purpose of performing maintenance or repairs of the Manger Residence both now and in the future; 2) the immediate issuance of a temporary restraining order compelling Mr. Deas to recognize the servitude and allow access to his property and cease from interfering with the execution of repairs; and 3) the entry of preliminary and permanent injunction maintaining the relief request through the temporary restraining order.

The trial court granted the motion for a temporary restraining order (hereinafter “TRO”) and set a contradictory hearing for the preliminary injunction. Mr. Deas sought to dissolve the TRO and requested a continuance of the preliminary injunction hearing. The trial court set a hearing for Mr. Deas's motions and the Magners’ request for preliminary injunction on the same day. Both Mr. Deas's motions and the Magners’ request for a preliminary injunction were denied. A trial was held on the Magners’ petition for declaratory relief and a permanent injunction. After taking the matter under advisement, the trial court signed a judgment on October 25, 2022, denying the Magners’ petition for a declaratory judgment and permanent injunction in favor of Mr. Deas. The Magners appealed the judgment with this Court. On March 27, 2024, this Court affirmed in part and reversed in part the trial court's October 25, 2022 judgment, and remanded for further proceedings. This Court found that the trial court erred by not granting injunctive relief by tailoring a ruling allowing the Magners a means to repair their home. This Court further noted that trial court must fashion an equitable remedy for both parties under La. C.C. art. 4. Magner v. Deas, 2023-0598 (La. App. 4 Cir. 3/27/24), 401 So. 3d 43, writ denied, 2024-00518 (La. 9/17/24), 392 So. 3d 637 (“Magner I”).

Thereafter, the trial court conducted a status conference and proposed appointing a court-selected expert to value the access required to complete the Magners’ repairs and directed each party to select two experts by submitting their names to the court by May 16, 2024. The Magners submitted names of two experts, however, Mr. Deas failed to do so.

On November 6, 2025, the trial court held a hearing for the examination of the expert witness on valuation. On January 6, 2025, the trial court granted the Magners’ injunctive relief, allowing access to the north alley. Mr. Deas filed motions for stay of injunctive relief and new trial, which were denied. Mr. Deas's suspensive appeal follows.¹

DISCUSSION 2

Mr. Deas raises numerous assignments of error; we narrow our discussion to three issues: 1) whether the trial court conducted proceedings in contravention of due process; 2) whether the trial court erred in granting the Magners a limited right of use of Mr. Deas's property; and 3) whether the trial court erred in denying Mr. Deas's motion for new trial.³ We begin by discussing the proceedings that occurred below.

Due Process

Mr. Deas argues that the trial court conducted proceedings in contravention of due process. He asserts that the trial court violated La. C.C.P. art. 1551 by conducting status conferences while a writ application was pending before the Louisiana Supreme Court and failing issue either a minute entry, pre-trial order, scheduling order, or written rulings following these status conferences. Mr. Deas further argues that the trial court improperly appointed a court expert in violation of La. C.E. art. 706.

To demonstrate a violation of substantive due process, the appellant must first establish the existence of a constitutionally protected property or liberty interest. Lodhi v. Univ. of New Orleans Through Univ. of Louisiana Bd. of Supervisors, 2023-0590, p. 5 (La. App. 4 Cir. 8/5/24), 421 So. 3d 39, 44, writ denied, 2024-01167 (La. 11/27/24), 396 So. 3d 452, and writ denied, 2024-01165 (La. 11/27/24), 396 (quoting Coxe Prop. Mgmt. & Leasing v. City of New Orleans, 2019-0911, pp. 7-8 (La. App. 4 Cir. 4/8/20), 294 So.3d 1098, 1104). Procedural due process is violated when a person is deprived of a property or liberty interest without first being afforded notice and an opportunity to be heard. Lodhi, 2023-0590, p. 6, 421 So. 3d 39 at 44 (quoting Kaltenbaugh v. Bd. of Supervisors, S. Univ. & Agric. & Mech. Coll. at Baton Rouge, 2022-0092, 2022-0093 p. 15 (La. App. 4 Cir. 8/24/22), 346 So.3d 823, 835).

The Louisiana Code of Civil Procedure affords trial courts discretion to implement conferences. La. C.C.P. art. 1551(A). Additionally, the court shall render an order reciting the action taken at the conference. La. C.C.P. art. 1551(B).

Pursuant to La. C.E. art. 706(A):

In a civil case, the court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party.

It is undisputed that conferences were held after Mr. Deas's filed his writ application, and the trial court directed the parties to select and submit the names of two experts by May 16, 2024. On May 30, 2024, subsequent to receiving names from only the Magners, the trial court issued an order outlining the procedures for the court appointed experts. Thereafter, on July 25, 2024, Mr. Deas sought a motion for stay of proceedings in the trial court and the Louisiana Supreme Court granted the motion. On September 17, 2024, Mr. Deas's writ was denied and the stay was lifted. On November 6, 2024, the trial court held hearing on the Magners’ motion in limine and held an examination of court appointed experts.

Here, the record is devoid of any objections from Mr. Deas regarding the appointment and qualification of the expert witnesses. See Citadel Broad. Corp. v. Axis U.S. Ins. Co., 2014-0326, p. 11 (La. App. 4 Cir. 2/11/15), 162 So. 3d 470, 478 (holding that there was no error or abuse of discretion in the trial court's allowing the expert testimony in light of defendant's failure to object contemporaneously to the testimony); see also Yokum v. Funky 544 Rhythm & Blues Cafe, 2016-1142, p. 29 (La. App. 4 Cir. 5/23/18), 248 So. 3d 723, 743 (“It is well established that when a party fails to contemporaneously object to the introduction of objectionable evidence, that party waives the right to complain of the issue on appeal.”).

Moreover, the record shows notice of the November 6, 2024 hearing. This Court has consistently held “that a litigant's ‘procedural due process rights were violated by the rendition of [ ] judgment against them’ where there was ‘no record support for a finding by the trial judge that the defendants were given notice of trial.’ ” Rouzan v. Rouzan, 2020-0240, p. 8 (La. App. 4 Cir. 9/30/20), 365 So. 3d 516, 520 (quoting LCR-M Ltd. P'ship, 2013-0483, pp. 8-9, 126 So.3d at 674). Accordingly, we find that Mr. Deas's arguments have no merit.

Limited Right of Use

Mr. Deas argues that the trial court's grant of a limited right of use to the Magners for repair of their residence created a servitude, and the January 6, 2025 judgment constituted a governmental taking. We disagree.

As explained by this Court in Magner I:

A person may have various rights in things such as: ownership; personal and predial servitudes; and such other real rights as the law allows. La. C.C. art. 476; [Eagle Pipe & Supply, Inc.], 2010-2267, p. 10 [(La. 10/25/11)] 79 So.3d [246] at 258 (citations omitted). “Real rights are not defined by the Civil Code, but ownership is.” Id., 2010-2267, p. 10, 79 So.3d at 258. “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing.” La. C.C. art. 477. An owner may use, enjoy, and dispose of a thing within the limits and conditions established by law. Id.

Our Supreme Court has determined that “a real right can be understood as ownership and its dismemberments.” Eagle Pipe & Supply, Inc., 2010-2267, p. 11 79 So.3d at 258. (citations omitted) “The various dismemberments of ownership also confer real rights on the owner or holder of that right.” Id. Servitudes are examples of various dismemberments of ownership in our Civil Code that are divided into personal and predial. Personal and predial servitudes confer real rights on the holder of the servitude. Id. A real right cannot exist without a determined object. Id., 2010-2267, p. 12, 79 So.3d at 259. (citations omitted).

Magner, 2023-0598, pp. 6-7, 401 So.3d at 48.

Louisiana Civil Code article 534 defines a personal servitude as “a charge on a thing for the benefit of a person. There are three sorts of personal servitudes: usufruct, habitation, and rights of use.” Louisiana Civil Code article 639 provides that a “personal servitude of right of use confers in favor of a person a specified use of an estate less than full enjoyment.” The Supreme Court has observed, a right of use servitude is a limited personal servitude, not ownership. Faulk v. Union Pac. R.R. Co., 2014-1598, p. 20 (La. 6/30/15), 172 So.3d 1034, 1051.

In Magner I, this Court instructed that the trial court may not judicially create a servitude absent a showing that the Mangers’ property encroached on Mr. Deas's property. Magner, 2023-0598, p. 8, 401 So.3d at 49. The record here is devoid of such evidence.

On remand, the trial court was tasked with fashioning an equitable remedy for both parties. La. C.C. art. 4 provides, “[w]hen no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”

Review of the January 6, 2025 judgment does not show that a servitude was granted to the Magners. The access conferred to the Magners was denoted as a “limited right of use for the purpose of accessing a portion of the property located at 914 Governor Nicholls Street, New Orleans, La., more particularly described on Exhibit A (the ‘Deas Property’) as Areas 1 and 2, for the purpose of repair and maintenance of the Magner Property described on Exhibit B under the terms and conditions set forth herein”. The judgment outlines that the access granted to the Magners is highly conditional and temporary as there are several restrictions imposed.

Particularly, the trial court limited access only to specific areas for repair and maintenance of the Magner Residence; provided a requirement of a written act of indemnification holding Mr. Deas harmless for any damage or claim resulting from the maintenance as well as proof of liability insurance; daily compensation to Mr. Deas; and a twenty-one-day work period with higher compensation to Mr. Deas if exceeded. Moreover, the judgment provides that future access requires court approval. All things considered, the January 6, 2025 judgment did not create a servitude and did not constitute a governmental taking. Therefore, we find no merit in Mr. Deas's contention.

Motion for New Trial

Next, we address the trial court's denial for Mr. Deas's motion for new trial. Mr. Deas avers that the denial of his motion for new trial was an abuse of discretion by the trial court. Mr. Deas asserts that the January 6, 2025 judgment created a servitude, he was denied due process and any opportunity to conduct discovery to test the truth that the Magners’ repairs were critical.

“A new trial should be ordered ‘[w]hen the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice.’ ” George Kellett & Sons, Inc. v. Lucas & Sons Builders, 2023-0186, p. 5 (La. App. 4 Cir. 11/28/23), 377 So. 3d 1247, 1251 (quoting Pitts v. Louisiana Med. Mut. Ins. Co., 2016-1232 (La. 3/15/17), 218 So. 3d 58, 65). As set forth in La. C.C.P. art. 1972(1), “[a] new trial shall be granted․ [w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” A new trial shall also be granted “[w]hen the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.” La. C.C.P. art. 1972(2). The trial court is provided discretionary grounds to grant a new trial if there is good ground. La. C.C.P. art. 1973. “An appellate court reviews a trial court's ruling on a motion for new trial under an abuse of discretion standard.” George Kellett & Sons, Inc., 2023-0186, pp. 5-6, 377 So. 3d at 1251 (citing FIE, LLC v. New Jax Condo Ass'n, Inc., 2016-0843, p. 22 (La. App. 4 Cir. 2/21/18), 241 So. 3d 372, 391). “A party seeking a new trial on the basis of newly discovered evidence must demonstrate that ‘it has done all that is reasonable to lead to timely discovery of the evidence.’ ” Bd. of Commissioners of Port of New Orleans v. Pilko & Assocs., Inc., 2019-0624, p. 8 (La. App. 4 Cir. 2/12/20), 292 So. 3d 956, 961 (quoting Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 2015-0067, p. 19 (La. App. 4 Cir. 6/24/15), 171 So.3d 1136, 1146).

The trial court articulated at the February 27, 2025 hearing, the issue remained that the Magner Residence needed repairs and in light of the parties not being able to come up with a resolution, the trial court had to create an equitable remedy. The trial court further noted that no grounds existed for a new trial. Considering these principles and our examination of the record, we find neither newly discovered evidence nor any basis to conclude that the trial court's judgment is contrary to the law or the evidence. Thus, we find no abuse of discretion in the trial court's ruling denying the motion for new trial.

CONCLUSION

For the foregoing reasons, we affirm the trial court's January 6, 2025 judgment granting the Magners a permanent injunction and a limited right of use to repair their property. Additionally, we affirm the March 19, 2025 judgment denying Mr. Deas's motion for new trial.

AFFIRMED

FOOTNOTES

1.   Mr. Deas sought an expedited supervisory review of the trial court's April 29, 2025 judgment, which granted his Motion for Suspensive Appeal; set the amount of security to be furnished for his suspensive appeal at $45,000; and ordered him to furnish his bond via a third-party surety. Mr. Deas requested that the judgment be vacated and he be permitted a suspensive appeal without posting a bond. This Court granted the writ application but denied the relief. Magner v. Deas, 2025-0302 (La. App. 4 Cir. 5/16/25), 414 So.3d 1133.

3.   Mr. Deas raised the following assignments of error:1. The trial court erred in granting the Magners a limited right of use of Mr. Deas's real property, in violation of the law of the case and in contravention of the Louisiana Constitution's prohibition against the taking of property for transfer of its ownership to, or predominate use by, another private person.2. The trial court erred in conducting the proceedings in contravention of due process by i) conducting a status conference without rendering orders reciting the action taken at the conference, ii) by appointing expert witnesses in violation of the procedural requirements of La. C.E. art. 706; and iii) by fashioning a remedy without reference to the provisions of Book II of the Civil Code.3. The trial court erred in denying Mr. Deas's motion for new trial.

JUDGE SANDRA CABRINA JENKINS