STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. BRUCE DAVID COX ET UX (2026)

In this expropriation proceeding, the defendants/plaintiffs-in-reconvention, Bruce David Cox and Lori Hedrick Cox, appeal evidentiary rulings and a summary judgment in favor of plaintiff/defendant-in-reconvention, the State of Louisiana, Department of Transportation and Development (“DOTD”). For the reasons set forth herein, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

In 2000, the Coxes purchased Lots 63-67 in De Val Estates in St. Tammany Parish for the total price of $138,000.00. The property purchased by the Coxes was zoned A-3 (suburban) and was subject to subdivision restrictions for De Vai Estates, Section B, recorded in the St. Tammany Parish Clerk of Court's record at Entry #172820, which limited the use of the property to residential use (“deed restrictions”).¹

Following their purchase of the property, the Coxes made multiple unsuccessful attempts to have the property's zoning classification changed from A-3 (suburban) to HC-2 (highway commercial) for development as a retail site.² The St. Tammany Parish Zoning Commission consistently recommended that the requested change in zoning be denied, noting that the property is surrounded by single family residential property and is located in an area where the 2025 future land plan calls for development of residential uses. Mr. Cox also attempted to have the residential use deed restriction removed from the property by obtaining the written agreement of other lot owners in De Val Estates to modify the deed restrictions. According to Mr. Cox, he collected signatures from a sufficient number of lot owners to have the residential use deed restriction removed; however, he was later unable to locate all of the written agreements, and the deed restriction was not removed.

Despite the zoning classification and residential use deed restriction prohibiting commercial use of the property, Mr. Cox, a licensed used car dealer, placed used cars and other movables for sale on the property in connection with his used car business. Citations were issued to the Coxes in 2013, 2014, and 2015 for violations of various parish ordinances, including the sale of motor vehicles on private property, and they were ordered to pay fines and court costs for this commercial activity on the property on October 9, 2013 (Lots 63, 64, and 65), February 11, 2015 (Lots 66 and 67), and October 7, 2015 (Lots 63, 64, and 65).³

On August 11, 2017, DOTD filed a petition for expropriation in accordance with La. R.S. 19:2.1, seeking to acquire portions of Lots 63-67 for the construction of State Project No. H.011075, State Route 59, Roundabout at Sharp Road. The property to be expropriated was identified in the petition as Parcel No. 2-2 (required in full ownership) and Parcel No. 2-2-C-l (required for a temporary construction servitude). Parcel No. 2-2 consists of portions of Lots 63-67 totaling 0.470 acres, and Parcel No. 2-2-C-l consists of portions of Lots 63-66 totaling 0.490 acres.

DOTD deposited $164,143.00 into the registry of the court as just compensation for the taking. This amount was based on an appraisal prepared by Neal Scott Meyer for DOTD. The Meyer appraisal valued the property taken as residential real estate. Mr. Cox withdrew the deposited funds and all accrued interest on September 26, 2017.

On December 27, 2017, the Coxes filed an answer and reconventional demand, denying DOTD's allegation that the amount deposited constitutes just compensation for the taking and seeking additional compensation for the expropriated properties. Specifically, the Coxes alleged:

The DOTD has not deposited the just and fair compensation due to [the Coxes,] which includes, but is not limited to: (1) just compensation for the property interests taken, including the taking of fee title and the taking of a construction servitude; (2) severance damages to the remaining property, including, but not limited to, damages for loss of access and visibility, increased safety risks, economic losses, and delay; (3) damages for relocation and inconvenience; and (4) any other physical damage to the property in connection with the expropriation or construction of the project.

The Coxes obtained their own appraisal of the expropriated property, which was prepared by Steve Scoggin, Scoggin Appraisal and Consulting, Inc., using the following extraordinary assumptions:

• For the sake of this appraisal, there is a reasonably probable extraordinary assumption that the zoning for the entire subject parcel should or could be zoned NC-4 [(Neighborhood Institutional)]. The property is currently zoned R-3 per the St. Tammany Zoning maps. There is considerable evidence that the property should be zoned as similar properties[,] which would be NC-4. The corner of Hwy 59 and Lonesome Rd is a similar intersection located about a half mile South of the subject and includes NC-4, HC-1, and HC-2 zoning on all properties surrounding the intersection. Another similar intersection located a little over a mile South on Hwy 59 at the Hwy 1088 intersection also includes NC-4 and HC-2 zoning on all properties connected to the corner.

• As a result, there is also an Extraordinary Assumption that the subject property would have a commercially viable entrance at the same location the survey plans placed the 12’ wide residential entrance. This commercial entrance would meet the code set by the St. Tammany Zoning Office and allow for commercially viable development.

The Scoggin appraisal concluded that the highest and best use of the property was for future commercial development and, based upon that potential use, valued the total compensation due for the taking of the Coxes’ property as $503,505.74.

On August 19, 2022, DOTD filed a motion in limine to exclude the trial testimony of two of the Coxes’ proposed expert witnesses, Bennet Oubre and Steve Scoggin. Oubre prepared an expert report in which he concluded that development of a credible appraisal of the Coxes’ expropriated property for the purpose of concluding a reasonable estimate of just compensation would require the use of an extraordinary assumption that a zoning change to a more intensive commercial classification would be granted within six months of a request for such a change. Oubre's report acknowledged that the property was subject to a residential use deed restriction at the time of the taking; however, he explained that he relied on information obtained from the Coxes that the deed restrictions were being removed by written agreement of a majority of the voting members controlling the subdivision regulations and concluded that the property would no longer be subject to any restrictions regarding its use. Scoggin's appraisal of the property as suitable for future commercial development was prepared in reliance on information obtained from Mr. Cox and from Oubre's expert report that the majority of the voting members of De Val Estates had agreed to remove the residential use deed restriction on the property. DOTD's motion in limine sought to exclude Oubre's and Scoggin's proposed opinion testimony on the grounds that it does not meet the requirements of La. C.E. arts. 701-705 or the Daubert/Foret standards governing the admissibility of expert opinion testimony because their opinions deviate from accepted appraisal practices, are based on unsupported and provably incorrect facts, and are neither reliable nor credible. DOTD urged that Oubre's and Scoggin's opinions “improperly use an extraordinary assumption based on verifiably erroneous facts that lead to a conclusion regarding the Property's highest and best use that is legally impermissible.”

Following a hearing, the trial court explained that even though it is clear that the experts did not consider the residential use deed restriction, the property could still be valued based upon the extraordinary assumption employed by the experts if the zoning classification of the property is changed to allow commercial use, like other property nearby has been, and the Coxes are able to prove that the deed restrictions terminated as a result of “lengthy nonuse.” The trial court acknowledged that the trier of fact might not believe the reasonable assumptions relied upon by the experts to be accurate, but denied the Daubert motion because DOTD did not show, to the court's satisfaction, “that the reasoning or methodology of the experts [is] scientifically invalid or that the reasoning or methodology cannot be applied to a set of facts as could be reasonably shown.”

The matter was set for jury trial on September 5, 2023. On July 25, 2023, DOTD filed a motion to exclude the expert testimony of the Coxes’ proposed expert witness, attorney Martha L. “Jinx” Jumonville. In her report, she provided the following legal conclusion, which she explained was based on “clear and unambiguous ‘black letter’ provisions” of La. R.S. 9:5625(A)(1)⁴ and La. C.C. arts. 781 and 782 ⁵ :

In my professional opinion, as a matter of law in accordance with the provisions of [La. R.S. 9:5625(A)(1)] and [La. C.C. art. 782] the property described as Lots 63-67 in De Val Estates ․ owned by Mr. & Mrs. Bruce Cox at the time of the La. DOTD taking ․ was free from any use limitations imposed by any private restrictive covenants limiting the use of said property to residential purposes.”

DOTD argued that Jumonville's expert testimony should be excluded because it would not be helpful to the trier of fact, impermissibly infringes on the province of the trial court to decide questions of law, is rife with inadmissible legal conclusions, and does not meet the standards governing the admissibility of opinion testimony pursuant to the Louisiana Code of Evidence.⁶

DOTD also filed a motion in limine on August 10, 2023, asking the trial court to exclude “any facts, evidence, testimony, or argument suggesting that the residential use deed restriction covering Lots 63-67 has been terminated or abandoned[.]” DOTD argued that such exclusion is warranted under the public records doctrine because DOTD is allowed to rely on the absence of any termination document in the public records. DOTD urged that evidence concerning termination of the residential use deed restriction would unduly prejudice DOTD and mislead or confuse the jury. In the alternative, DOTD argued that the issue of whether the residential use deed restriction has been terminated or abandoned is purely a question of law to be decided by the trial court rather than a question of fact to be decided by the jury.

A hearing was held on August 24, 2023 on DOTD's evidentiary motions.⁷ At the conclusion of the hearing, the trial court granted both of DOTD's motions. The trial court concluded that exclusion of evidence regarding the termination or abandonment of the deed restrictions is necessary based on the public records doctrine, as well as the fact that the Coxes’ position that the deed restrictions have been or will be removed is based on guesswork, speculation, or conjecture and is “certain to mislead and confuse the jury deciding valuation.” The trial court further concluded that Jumonville's “proposed testimony is not helpful to the Court and ․ is an inadmissible opinion on the law that applies” and explained that although Jumonville is “unquestionably qualified to opine on the law,” it is the province of the court to determine the law.

The trial court issued a written judgment on September 8, 2023, excluding Jumonville's proposed expert testimony and prohibiting the parties, their witnesses, and their counsel from testifying, mentioning, suggesting, or implying, directly or indirectly, in any manner whatsoever, in the presence of the jury that the residential use deed restriction on the Coxes’ property has been terminated through liberative prescription, by agreement, or by abandonment, or that there is a reasonable probability of such termination in the not-too-distant future. With regard to Jumonville, the trial court explained that Jumonville's “opinions are excluded (1) based on the Court's ruling ․ regarding the deed restrictions; and (2) as legal opinions falling within the province of the Court.”⁸

Following the trial court's ruling excluding evidence concerning the termination of the residential use deed restriction, DOTD filed a motion for summary judgment, urging that the only competent, credible, and admissible evidence as to the amount of just compensation is the appraisal of its expert, Neal Meyer, and the Coxes cannot meet their burden of proving that any additional just compensation is due. DOTD sought summary judgment setting the amount of just compensation for the taking of the Coxes’ property at $164,143.00. The Coxes opposed DOTD's motion for summary judgment, arguing that genuine issues of material fact remain as to the proper method of compensation for the expropriated property. The Coxes also urged the trial court to reconsider its prior ruling on the motion in limine.

DOTD objected to certain summary judgment evidence filed by the Coxes in opposition to the motion; however, DOTD's objections were not included in the appellate record, so it is not clear exactly which exhibits were objected to and the basis for each objection.⁹ At the November 21, 2024 hearing on DOTD's motion for summary judgment, the trial court sustained DOTD's objections and excluded portions of the Coxes’ summary judgment evidence. The trial court provided brief reasons for excluding all or part of each exhibit, including that some of the exhibits violated the trial court's September 8, 2023 judgment excluding evidence concerning the termination of the residential use deed restriction.

Following its ruling excluding much of the Coxes’ summary judgment evidence, the trial court considered the motion for summary judgment:

The Court finds that the [Coxes] have failed to meet their burden of proof that they are entitled to additional compensation. This ruling in no way judges the credibility of any witness’ testimony or other competent summary judgment evidence admitted by the Court. The Court held on August 24th, 2023, that the [“public records doctrine”] clearly established in Louisiana law prohibited the introduction of any evidence that the deed restrictions pertaining to this property had been abandoned or terminated. Similarly, the defendants have failed to justify the use of an extraordinary assumption that the property would be rezoned from its current residential status to a more intense commercial classification. To the contrary, the only evidence on the issue was to the opposite, there being at least three failed efforts to rezone the property. As such, any evidence regarding the valuation of the subject property without regard to the long existing zoning classification and deed restrictions would be based on inadmissible guesswork, speculation, or conjecture․ The [Coxes] have not introduced any evidence that the [expropriated] property with its longstanding zoning and deed restrictions had any value in excess of that deposited by the State and accessed by the [Coxes] several years ago.

Accordingly, the trial court granted DOTD's motion for summary judgment and rendered judgment in favor of DOTD and against the Coxes, setting just compensation for the expropriation of Parcels 2-2 and 2-2-C-l at $164,143.00. A judgment in accordance with this ruling was issued by the trial court on December 16, 2024.

The Coxes appealed, arguing that the trial court erred in granting the motion in limine concerning the alleged termination and/or abandonment of the deed restrictions, excluding Jumonville's expert testimony, excluding the Coxes’ summary judgment evidence, and granting summary judgment in favor of DOTD.

APPLICABLE SUBSTANTIVE LAW

Expropriation

Expropriation of private property for a public purpose is authorized by Louisiana Constitution Article I, Section 4, which provides that property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. La. Const. Art. 1, § 4(B)(1). In every expropriation, a party has the right to trial by jury to determine whether the compensation is just, and the owner shall be compensated to the full extent of his loss, which shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation. La. Const. Art. 1, § 4(B)(5); see also La. R.S. 19:8(A)(1) (“․ All issues shall be decided by the trial judge, except compensation when either party has demanded a trial by jury to determine compensation.”) and 19:9(B) (“The defendant shall be compensated to the full extent of his loss․”).

The intent of the provisions requiring the expropriating authority to compensate the owner “to the full extent of his loss” is to permit the owner to remain in equivalent financial circumstances after the taking and be put in as good a position pecuniarily as he would have been had his property not been taken. City of Baton Rouge v. Mucciacciaro, 2021-0656, p. 4 (La.App. 1 Cir. 5/25/22), 342 So.3d 955, 963, writ denied, 2022-01172 (La. 11/1/22), 349 So.3d 2. A landowner who challenges the amount deposited as just compensation for an expropriation must prove a greater value by a preponderance of the evidence. Speculation, conjecture, mere possibility, and even unsupported probability are not sufficient to support a judgment. Mucciacciaro, 2021-0656 at p. 5, 342 So.3d at 963. The question of what damages will appropriately compensate the landowner is one of fact. Such a determination is necessarily dependent on evidence presented by expert witnesses; however, the factfinder is not obligated to accept an expert's opinion in expropriation cases, since those opinions are not binding, but are advisory in nature. Id.

The fair market value of the property has been accepted as a relevant consideration in determining just compensation. Exxon Pipeline Co. v. Hill, 2000-2535, p. 8 (La. 5/15/01), 788 So.2d 1154, 1160. Fair market value has been defined as the price that would be agreed upon by a willing and informed buyer and a willing and informed seller under usual and ordinary circumstances. State Through Department of Highways v. Mouledous, 200 So.2d 384, 389 (La.App. 3 Cir. 1967). Since a hypothetical “reasonable man” buyer will purchase land with an eye not only to its existing use, but to other potential uses as well, fair market value takes into consideration the highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future to the full extent that the prospect of demand for such use affects the market value while the property is privately held. United States v. Land, 62.50 Acres of Land More or Less, Situated in Jefferson Parish, State of Louisiana, 953 F.2d 886, 890 (5th Cir. 1992), quoting Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934). The highest and best use of land in expropriation cases involves several factors, including market demand, proximity to areas already developed in a compatible manner with the intended use, economic development in the area, specific plans of business and individuals (including action already taken to develop the land for that use), scarcity of the land available for that use, negotiations with buyers interested in the property taken for a particular use, absence of offers to buy the property made by the buyers who put it to the use urged, and the use to which the property was being put at the time of the taking. Exxon Pipeline Co., 2000-2535 at p. 8, 788 So.2d at 1160. There is a rebuttable presumption that the current use of the property is the highest and best use, and the landowner bears the burden of proving the existence of a different highest and best use based on a potential, future use. St. Charles Land Co. II, L.L.C. v. City of New Orleans ex rel. New Orleans Aviation Board, 14-101, p. 11 (La.App. 5 Cir. 12/23/14), 167 So.3d 128, 136, writ granted, 2015-0537 (La. 6/1/15), 171 So.3d 268.

A potential use of the property may be deemed its best and highest use for purposes of valuation where there is a reasonable expectation that the property may be so utilized, developed, or employed in the not-too-distant future.¹⁰ State Department of Highways v. St. Tammany Homestead Association, 304 So.2d 765, 771 (La.App. 1 Cir. 1974). A landowner can overcome the presumption in favor of the current use of the property only by showing a reasonable probability that the land is adaptable and needed for the potential use in the near future. West Jefferson Levee District v. Coast Quality Const. Corp., 640 So.2d 1258, 1273, n.24 (La. 1994). Where a potential use is reasonably prospective, or reasonably certain to the extent that such use is removed from the realm of guesswork, speculation, and conjecture, such a potential use may be considered the highest and best use for fixing value in an expropriation proceeding. East Baton Rouge Parish v. Thomas, 346 So.2d 364, 366 (La.App. 1 Cir. 1977). However, where there is no reasonable probability that a permit for the necessary development could be obtained or that a change to a zoning classification allowing such development could occur in the reasonably foreseeable future, the asserted higher use may not be considered as the highest and best use of the property for purposes of market valuation because such use would be illegal. West Jefferson Levee District, 640 So.2d at 1274; see also United States v. Land, 62.50 Acres of Land More or Less, Situated in Jefferson Parish, State of Louisiana, 953 F.2d 886, 890 (1992) (“If there is no reasonable probability that the property could be devoted to a suggested potential use, the court need not consider that use in determining the fair market value of the property. ‘Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration, for that would be to allow mere speculation and conjecture to become a guide for ascertainment of value.’ ”). An illegal use cannot be considered because it is highly speculative that such a use could be established and maintained. West Jefferson Levee District, 640 So.2d at 1274, n.28. Where such reasonable probability can be shown, however, the potential use is not necessarily the measure of value of the property. Instead, it is the value of the property as unpermitted at the time of the expropriation as that value is affected by the reasonable probability a permit could be obtained in the near future that is determinative of market value. West Jefferson Levee District, 640 So.2d at 1274-75; United States v. Land, 62.50 Acres of Land More or Less, Situated in Jefferson Parish, State of Louisiana, 953 F.2d 886, 890 (1992). A possible change in zoning regulations must not be remote or speculative, but the landowner is not required to prove the reasonable certainty of a change in zoning. West Jefferson Levee District, 640 So.2d at 1275. As the court explained in United States v. 320.0 Acres of Land, More or Less in Monroe County, State of Fla., 605 F.2d 762, 819 (5th Cir. 1979):

[I]t is not at all uncommon within regulatory systems for permits or variances to be granted, or for the regulations themselves (especially zoning regulations) to be changed. And since the prospect of obtaining a permit or a change of zoning classification is a factor that might well be considered by a prospective purchaser, and thus a factor affecting the price a willing buyer would pay for the property, it will often represent an element of fair market value. Accordingly, it is well settled law that if the landowner can demonstrate a “reasonable possibility” that a permit would be issued or that rezoning will occur, thereby freeing the property for a use which otherwise would be precluded by regulatory restrictions, the owner is entitled to have that “reasonable possibility” considered by the jury, provided of course that the use is otherwise a practicable and reasonably probable one. We emphasize, however, that it is for the judge to determine whether this “reasonable possibility” exists. If and only if he finds that it does exist, then the jury must consider and decide what effect this reasonable possibility of a permit or zoning change has upon the fair market value of the condemned property. (Internal citations omitted).

The jury has the responsibility to assess the credibility of and weigh the testimony of the experts with regard to highest and best use of the property, which is ultimately a question of fact for the jury. Board of Commissioners of New Orleans Exhibition Hall Authority, 625 So.2d at 1081. If suitability for a particular use might reasonably affect fair market value in the sense that a just compensation award based in part upon the potential for that use would not be invalid as a matter of law, then evidence pertaining to that use must be admitted for consideration by the trier of fact. United States v. 320.0 Acres of Land, More or Less in Monroe County, State of Florida, 605 F.2d 762, 817 (5th Cir. 1979); see also Lafayette Airport Commission v. Roy, 265 So.2d 459, 467 (1972) (“[I]n determining the highest and best use of a tract of land, it is necessary for courts to compare the various uses to which the land may be put․ [T]o this end, ․ ‘any evidence bearing on the potential use of the property is admissible, subject only to the general rules of evidence.’ ”). It is for the trier of fact to decide on the basis of all the evidence and upon proper instructions whether the property has any additional market value because of its suitability for this use. The weight to be given to evidence of reasonable probability is a question for the trier of fact. United States v. 320.0 Acres of Land, More or Less in Monroe County, State of Florida, 605 F.2d at 816-18.

EVIDENTIARY RULINGS

Termination or Abandonment of Residential Use Deed Restrictions

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. La. C.C. art. 775. Such restrictions are incorporeal immovables and real rights likened to predial servitudes and are regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions. La. C.C. art. 777. Building restrictions are ordinarily created by developers of land who intend to subdivide their property into individual lots for specific purposes, such as residential, commercial, or industrial uses. La. C.C. art. 776, Comment (b). Where there is doubt as to the existence, validity, or extent of building restrictions, the issue should be resolved in favor of the unrestricted use of the immovable. La. C.C. art. 783; Marina Homeowners Association, Inc. v. Cahill, 56,423, pp. 11-12 (La.App. 2 Cir. 8/27/25), 420 So.3d 782, 789.

Once building restrictions are recorded in the public records, a subsequent acquirer of immovable property burdened with such restrictions is bound by them. Childers v. Laurel Lakes Estates Homeowners’ Association, Inc., 2022-0936, p. 9 (La.App. 1 Cir. 5/24/23), 368 So.3d 1123, 1130. Building restrictions may be amended or terminated as provided in the act that establishes them, or in the absence of such provision, as provided in applicable provisions of the Louisiana Civil Code governing building restrictions. La. C.C. art. 780.

The deed restrictions at issue in this case provide for their amendment as follows:

These covenants are to run with the land and shall be binding on all the parties and all persons claiming under them until January 1, 1981, at which time said covenants shall be automatically extended for successive periods of ten years unless by a vote of the majority of the then owners of the lots located in the tract or subdivision in which the hereinabove described property is located, it is agreed to change the said covenants in whole or in part.

Property may also be freed of building restrictions by the liberative prescription of two years or by abandonment of the subdivision plan or of particular restrictions. See La. C.C. art. 781-782; see also § 10:6. Termination and amendment of building restrictions, 4 La. Civil Law Treatise, Predial Servitudes § 10:6 (4th ed.).

Louisiana Civil Code article 781 provides for termination of building restrictions by liberative prescription:¹¹

No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. A violation is noticeable when an apparent activity has occurred on the immovable in violation of the building restriction․ After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.

For the purpose of Article 781’s two-year prescriptive period, some activity that is noticeable and apparent must occur on the lot, and at that point, the prescriptive period commences. Harbor Crossing Homeowners’ Association, Inc. v. Niquiporo, 2024-1289, p. 5 (La.App. 1 Cir. 5/30/25), 417 So.3d 877, 880. Upon completion of the two-year period set forth in La. C.C. art. 781, the restriction is treated as if it never existed on that particular piece of land. La. C.C. art. 781, comment (c); Lakeshore Property Owners Association, Inc. v. Delatte, 579 So.2d 1039, 1043 (La.App. 4 Cir. 1991), writ denied, 586 So.2d 560 (La. 1991). Louisiana courts have held that when an owner uses his property for commercial purposes contrary to restrictions during a period in excess of two years, the property is free from any limitation pertaining to commercial activities; the landowner is thus entitled to enlarge his business, and even to conduct a business of a different nature. See La. C.C. art. 781, comment (c), citing Chexnayder v. Rogers, 95 So.2d 381 (La.App., Parish of Orleans 1957).

Termination of building restrictions by abandonment is provided for in La. C.C. art. 782:

Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When the entire plan is abandoned the affected area is freed of all restrictions; when a particular restriction is abandoned, the affected area is freed of that restriction only.

Abandonment of a restriction occurs when violations transpire which constitute a subversion of, or a significant change in, the original scheme of development envisioned by the subdivider and which result in a substantial change in the intended nature of the subdivision. Robinson v. Donnell, 374 So.2d 691, 693-94 (La.App. 1 Cir. 1979), writ denied, 375 So.2d 958 (La. 1979). Abandonment of the entire restrictive plan is ordinarily predicated on a great number of violations of all or most restrictions. Upon abandonment of the entire plan, all restrictions fall, and the use of the property is free for all purposes. Abandonment of a particular restriction is predicated on a sufficient number of violations of that restriction in relation to the number of lots affected by it. La. C.C. art. 782, comment (b). Although a zoning change from residential to commercial does not prevent the enforcement of existing residential use deed restrictions, it may give rise to an inference that the general plan has been abandoned in the area. See La. C.C. art. 782, comment (c).

DOTD's motion in limine asked the trial court “to exclude any facts, evidence, testimony, or argument suggesting that the residential use deed restriction covering Lots 63-67 has been terminated or abandoned[.]” DOTD argued that any such facts, evidence, testimony, or argument should be excluded at trial pursuant to the public records doctrine because DOTD is allowed to rely on the absence of any termination document in the public records. DOTD also alleged that evidence concerning termination would only serve to unduly prejudice DOTD and mislead or confuse the jury. In the alternative, DOTD argued that the issue of whether the residential use deed restriction has been terminated or abandoned is purely a question of law to be decided by the trial court rather than a question of fact to be decided by the jury.

At the conclusion of the hearing on DOTD's motion in limine, the trial court stated:

The Court finds that the public records doctrine requires the exclusion of any evidence that the deed restrictions have been terminated or abandoned. The doctrine is founded on our public policy and social purpose of assuring stability in land titles. It requires that third parties, including the State, must be able to rely upon the public record without resorting to unrecorded and uncertain interests. The evidence sought to be introduced by the defendant[s], undocumented and self[-]supporting, is precisely the kind of evidence the public record doctrine protects against. Additionally, the evidence is certain to mislead and confuse the jury deciding valuation.

The defendant[s’] position ․ that the deed restrictions are or will be removed is based on guesswork, speculation, or conjecture, and is therefore inadmissible.”

To this end, the September 8, 2023 judgment of the trial court provided:

․ Facts, evidence, testimony, and argument ․ suggesting that the residential use deed restriction on Lots 63-67 of DeVal Estates, Section B has been terminated through liberative prescription, by agreement, and/or by abandonment are excluded from the trial of this matter and/or that there is a reasonable probability of the termination of the deed restrictions in the not-too-distant future. The parties, their witnesses, and their counsel shall refrain from testifying, mentioning, suggesting, or implying, either directly or indirectly, in any manner whatsoever, in the presence of the jury that the residential use deed restriction on Lots 63-67 of DeVal Estates, Section B has been terminated through liberative prescription, by agreement, and/or by abandonment and/or that there is a reasonable probability of the termination of the deed restrictions in the not-too-distant future.

On appeal, the Coxes argue that the trial court erred in granting DOTD's motion in limine and excluding all evidence relating to the termination or abandonment of the deed restrictions or the reasonable probability of the termination of the deed restrictions in the not-too-distant future. The Coxes urge that the public records doctrine cannot be used to deprive them of their constitutionally protected right to just compensation and, further, that evidence relating to the termination or abandonment of the deed restrictions is relevant to the issue of just compensation for the expropriated property.

A party may seek a pre-trial ruling on the admissibility of evidence through the use of a motion in limine. Hamp's Construction, LLC v. Department of Transportation and Development, 2022-0928, p. 1 (La.App. 1 Cir. 2/1/23), 2023 WL 1455041, *1 (unpublished), citing Succession of Shaw v. Alexandria Investment Group, LLC, 2017-582, p. 4 (La.App. 3 Cir. 7/26/17), 248 So.3d 332, 335. Because this motion presents an evidentiary issue, the trial court is granted great discretion in ruling on the motion, and its ruling should not be disturbed absent a showing of a clear abuse of that discretion. Succession of Shaw, 2017-582 at p. 4, 248 So.3d at 335. When reviewing a trial court's ruling on a motion in limine on appeal, the reviewing court is required to consider whether the particular ruling complained of was erroneous and, if so, whether the error prejudiced the complaining party's cause. Schexnayder v. Bridges, 2015-0786, p. 8 (La.App. 1 Cir. 2/26/16), 190 So.3d 764, 770. If a substantial right was not prejudiced or affected by the evidentiary ruling, a reversal is not warranted. See La. C.E. art. 103.

Louisiana Code of Evidence article 402 provides that all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, the Code of Evidence, or other legislation. Conversely, evidence that is not relevant is not admissible. Accordingly, “the normal criterion for the admissibility of evidence is simply that it be relevant.” La. C.E. art. 402, comment (c). “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 401. Whether evidence is relevant is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Schexnayder, 2015-0786 at p. 7, 190 So.3d at 770.

Relevant evidence may still be excluded if, among other things, its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403; Schexnayder, 2015-0786 at p. 7, 190 So.3d at 770. The party alleging prejudice by the evidentiary ruling of the district court bears the burden of so proving. Id. A trial court has much discretion to regulate the evidence a jury hears and should consider the improper inferences a jury might make from evidence when balancing the probative value of evidence with the danger of unfair prejudice. Id.

The trial court's ruling on DOTD's motion in limine was based primarily on its conclusion that the public records doctrine requires the exclusion of any evidence that the deed restrictions have been terminated or abandoned because a third party such as DOTD must be able to rely upon the public record without resorting to unrecorded and uncertain interests. We disagree.

The public records doctrine generally expresses a public policy that interests in real estate must be recorded in order to affect third persons. Simply put, an instrument in writing affecting immovable property that is not recorded is null and void except between the parties. Cimarex Energy Co. v. Mauboules, 2009-1170, p. 18 (La. 4/9/10), 40 So.3d 931, 943, citing Peter S. Title, Louisiana Real Estate Transactions, § 8.1 (2009); see also La. C.C. art. 3338.¹² The public records doctrine is founded upon our public policy and social purpose of assuring stability of land titles. Cimarex, 2009-1170 at p. 18, 40 So.3d at 943.

The public records doctrine has been described as a negative doctrine because it does not create rights, but, rather, denies the effect of certain rights unless they are recorded. In explaining the negative nature of the doctrine, the Louisiana Supreme Court has stated that third persons are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. Cimarex, 2009-1170 at pp. 19-20, 40 So.3d at 944.

The public records doctrine does not protect the third party against all unrecorded interests. In re D'Anna, 548 B.R. 155, 166 (Bankr.E.D. La. 2016). Fundamentally, the public records doctrine relies on the requirements contained in various codal and statutory provisions for recordation. Most transfers of an interest in immovable property require the recordation of a written instrument. See La. C.C. art. 3338. The public records doctrine provides that in the absence of such a document, the third party who acquires rights in the immovable takes those rights free from the unrecorded interest. However, in the absence of a requirement to record, the public records doctrine has no application. In re D'Anna, 548 B.R. at 166-67.

While a third party is entitled to rely on the absence from the public record of those interests that are required to be recorded, the public records doctrine does not provide that a third party may rely implicitly on what is shown in a recorded instrument. Cimarex, 2009-1170 at p. 20, 40 So.3d at 944. Recordation does not purport to be and is not itself the source of rights. State Department of Transportation and Development v. Jacob, 483 So.2d 592, 595 (La. 1986); see also La. C.C. art. 3341.¹³ The public records doctrine only protects third parties against unrecorded interests that by law must be recorded. Rights not established by written document or judgment, such as those created by operation of law or which go to capacity or authority, are unaffected by the doctrine. In re D'Anna, 548 B.R. at 168; see also Biggs v. Hatter, 46,910, p. 13 (La.App. 2 Cir. 4/11/12), 91 So.3d 1148, 1157, writ denied, 2012-1075 (La. 9/21/12), 98 So.3d 337 ( “It has been consistently held in the jurisprudence that the law of registry is inapplicable where the ownership of, or claim affecting, immovable property has been acquired by inheritance and title has become vested by operation of law.”); La. C.C. art. 3339 (“A matter of capacity or authority, the occurrence of a suspensive or a resolutory condition, the exercise of an option or right of first refusal, a tacit acceptance, a termination of rights that depends upon the occurrence of a condition, and a similar matter pertaining to rights and obligations evidenced by a recorded instrument are effective as to a third person although not evidenced of record”).

To the extent that the Coxes allege that the residential use deed restriction on their property was terminated by liberative prescription or abandonment, such termination would occur by operation of law, without any recordation requirement; thus, the Coxes’ resulting right to the unrestricted use of their property would be effective against third parties although not evidenced by the public records. See In re D'Anna, 548 B.R. at 168; Biggs, 46,910 at p. 13, 91 So.3d at 1157; La. C.C. art. 3339. On the other hand, an instrument modifying or terminating the restrictive covenants applicable to the Coxes’ property (such as an act evidencing a vote of the majority of the owners of the lots in De Val Estates to amend the restrictive covenants in whole or in part) would have to be recorded in order to be effective as to third parties. See La. C.C. art. 3338.¹⁴ However, despite this requirement, the jurisprudence has held that the public records doctrine is inapplicable to the determination of highest and best use and fair market value in expropriation cases. See Lafayette Airport Commission v. Roy, 265 So.2d 459 (La. 1972).

In Lafayette Airport Commission, the trial court in an expropriation suit excluded evidence of increased royalty payments from the determination of fair market value on the grounds that the unrecorded agreement granting the increased royalty payments could have no effect as to third parties and was inadmissible under the public records doctrine. In concluding that the unrecorded lease was admissible, the Louisiana Supreme Court explained that the Louisiana Constitution requires that just and adequate compensation be paid for the taking of private property for public purposes. Lafayette Airport Commission, 265 So.2d at 469. In determining the amount of just and adequate compensation due, the general rule is that the measure of compensation to which the owner is entitled is the price which an equally informed willing buyer and seller would agree upon under usual and ordinary circumstances. Lafayette Airport Commission, 265 So.2d at 467. Actual fair market value must be determined by whatever relevant, competent evidence is available, and the landowner must be compensated in that amount. This requires a complete and accurate evaluation of the “true” fair market value of the property. In order to protect the right of the “coerced seller” in an expropriation proceeding to receive full and fair compensation for the taking, the seller and buyer must be considered “fully informed.” Lafayette Airport Commission, 265 So.2d at 469-70. Accordingly, the Court concluded that “the purpose behind the registry rule, the protection of an ignorant good faith third party, has no application to the expropriating authority,” as such an application would facilitate the creation of an artificial and inaccurate valuation of taken property and defeat our constitutional requirements.” Lafayette Airport Commission, 265 So.2d at 470.

The trial court in this case erred in excluding any and all evidence of the past or possible future termination or abandonment of the residential use deed restriction based on the public records doctrine. However, we may only reverse based on this erroneous evidentiary ruling if the Coxes were prejudiced by the error. See Schexnayder, 2015-0786, p. 8, 190 So.3d 764, 770-71. In granting summary judgment in favor of DOTD, the trial court relied on the Coxes’ failure to offer any evidence that the expropriated property, “with its long-standing zoning and deed restrictions[,]” had any value in excess of the amount deposited in the registry of the court by the State. As previously noted, the prospect of obtaining a permit or a change of zoning classification is an element of fair market value, and if a landowner can demonstrate a reasonable possibility that a permit will be issued or that rezoning will occur, thereby freeing the property for a use which otherwise would be precluded by regulatory restrictions, the landowner is entitled to have that reasonable possibility considered by the jury, provided of course that the use is otherwise a practicable and reasonably probable one. Here, the trial court's erroneous ruling prevented the Coxes from presenting any evidence to carry their burden of proving the reasonable possibility that the property would be freed in the not-too-distant future for a use other than residential use. Accordingly, the ruling was prejudicial to their claim for additional just compensation and must be reversed.

Jumonville's Expert Testimony

The admissibility of expert testimony is governed by La. C.E. art. 702, which at the time of the August 24, 2023 hearing in this matter provided, in pertinent part:¹⁵

A. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert has reliably applied the principles and methods to the facts of the case.

Article 702 creates a five-element test to determine the admissibility of expert testimony. The first element requires the expert witness to be qualified as an expert by knowledge, skill, experience, training, or education. Failure of the witness to qualify as an expert pursuant to the introductory paragraph of Article 702(A) or failure of the testimony to meet any of the indicia of reliability or relevancy set forth in Article 702(A)(1) through (A)(4) will render the testimony inadmissible. Vicknair v. Plaisance, 2024-1168, p. 22 (La.App. 1 Cir. 8/21/25), 420 So.3d 749, 765, writ denied, 2025-1185 (La. 11/25/25), 421 So.3d 532. It is well settled that the ultimate determination of the admissibility of expert testimony under La. C.E. art. 702 turns upon whether it would assist the trier of fact to understand the evidence or to determine a fact in issue. Organ v. Juarez, 2025-0321, p. 7 (La.App. 1 Cir. 11/7/25), 424 So.3d 817, 822-23.

The district court performs the important gatekeeping role of ensuring that any and all expert testimony admitted is not only relevant, but reliable. Blair v. Coney, 2019-00795, p. 8 (La. 4/3/20), 340 So.3d 775, 781; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 1171, 143 L. Ed. 2d 238 (1999). The factual basis for an expert's opinion determines the reliability of the testimony. The trial court's inquiry must be tied to the specific facts of the particular case. Vicknair, 2024-1168 at p. 22, 420 So.3d at 766.

An expert may provide testimony based on information obtained from others, and the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert's conclusion. Nolaluna, LLC v. Crosby, 2024-0555, p. 6 (La.App. 4 Cir. 5/6/25), 421 So.3d 125, 130, writ denied, 2025-00717 (La. 10/7/25), 418 So.3d 364, citing Certain Underwriters at Lloyd's London v. United States Steel Corp., 2019-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122. Moreover, the character of the evidence upon which the expert bases an opinion may serve as a basis for attack on cross-examination at trial, but it does not make the expert's opinion evidence inadmissible. Nolaluna, 2024-0555 at pp. 6-7, 421 So.3d at 130.

In exercising its gatekeeping duty, the district court must be mindful of the balancing of interests set forth in La. C.E. art. 403, i.e., whether the probative value of the expert testimony outweighs its prejudicial effect, as an expert's testimony can be misleading and prejudicial if this role is not properly satisfied. See La. C.E. art. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”); Blair, 2019-00795 at p. 9, 340 So.3d at 781.

The decision to admit or exclude expert testimony is within the sound discretion of the trial court, and its judgment will not be disturbed by an appellate court unless it is clearly erroneous. Vicknair, 2024-1168 at p. 21, 420 So.3d at 765.

In its September 8, 2023 judgment granting DOTD's motion to exclude Jumonville's proposed expert testimony, the trial court stated that Jumonville's “opinions are excluded (1) based on the Court's ruling [granting DOTD's motion in limine] regarding the deed restrictions; and (2) as legal opinions falling within the province of the Court.”

On appeal, the Coxes argue that the exclusion of Jumonville's proposed expert testimony was an abuse of discretion and based on legally incorrect reasoning. To the extent that the trial court's exclusion of Jumonville's testimony was based on the trial court's earlier ruling excluding all evidence relating to the termination of the deed restrictions, that ruling would be legally erroneous, for the reasons set forth hereinabove.

Turning to the trial court's finding that Jumonville's proposed testimony consisted of “legal opinions falling within the province of the court,” the Coxes argue on appeal that “merely being a lawyer does not disqualify one as an expert witness.” The Coxes argue that Jumonville's expert testimony regarding how deed restrictions are created, enforced, and terminated, as well her testimony as to the fact that the appearance of a deed restriction in the public records is not determinative of whether a particular deed restriction is still in effect, would be helpful to the trier of fact in determining a fact in issue, i.e., whether the deed restriction absolutely precludes the commercial use of the property in the not-too-distant future.

Despite this characterization of the substance of Jumonville's proposed expert testimony, most of these topics are not addressed at all in her expert report. Specifically, the report filed in the record before us on appeal does not address how deed restrictions are created or enforced, nor does it address the fact that the appearance of a deed restriction in the public records is not determinative of whether a particular deed restriction is still in effect. Jumonville's expert report simply quotes La. R.S. 9:5625(A)(1) and La. C.C. arts. 781 and 782, lists several allegations of fact concerning Mr. Cox's past commercial use of the property and the knowledge of such commercial use by an officer and director of the homeowner's association, and states Jumonville's “professional opinion” that the Coxes’ property was free of the residential use deed restriction on the date of the expropriation.

As previously noted, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. La. C.E. art. 702(1); Crowe v. Bio-Medical Application of Louisiana, LLC, 2014-0917, p. 12 (La.App. 1 Cir. 6/3/16), 208 So.3d 473, 482, writ denied, 2017-0502 (La. 5/12/17), 219 So.3d 1106. The testimony of an expert, with the attendant right to express opinions and conclusions, is proper for the purpose of assisting the court only in those fields in which the court lacks sufficient knowledge to enable it to come to a proper conclusion without such assistance. Crockerham v. Louisiana Medical Mutual Insurance Company, 2017-1590, p. 13 (La.App. 1 Cir. 6/21/18), 255 So.3d 604, 612, citing Wilson v. Wilson, 542 So.2d 568, 573 (La.App. 1 Cir. 1989). It is well established that expert witnesses may not provide opinions regarding domestic law, as distinguished from foreign law, on the theory that the court itself is the expert on domestic law, including matters of statutory interpretation. Crowe, 2014-0917 at pp. 12-13, 208 So.3d at 482-83.

Jumonville's proposed expert testimony is a legal opinion involving interpretation of the applicable statutory law, which is the province of the trial court. Accordingly, the trial court did not err in finding that Jumonville's opinion would not be helpful in determining a fact at issue and in excluding her proposed expert testimony. See Crowe, 2014-0917 at p. 12, 208 So.3d at 482; Crockerham, 2017-1590 at pp. 13-14, 255 So.3d at 612.

SUMMARY JUDGMENT

Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents 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. C.C.P. art. 966(A)(3). The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The burden then shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

The trial court's erroneous ruling on DOTD's motion in limine, which excluded all evidence concerning the termination or abandonment of the residential use deed restrictions, clearly prejudiced the Coxes in opposing DOTD's motion for summary judgment. Notably, in granting summary judgment in favor of DOTD, the trial court relied on the Coxes’ failure to offer any evidence that the expropriated property, “with its long-standing zoning and deed restrictions[,]” had any value in excess of the amount deposited in the registry of the court by DOTD. As previously noted, the prospect of obtaining a permit or a change of zoning classification is an element of fair market value, and if a landowner can demonstrate a reasonable possibility that a permit will be issued or that rezoning will occur, thereby freeing the property for a use which otherwise would be precluded by regulatory restrictions, the landowner is entitled to have that reasonable possibility considered by the jury, provided of course that the use is otherwise a practicable and reasonably probable one. Because the trial court's erroneous evidentiary ruling prevented the Coxes from offering evidence in opposition to DOTD's motion for summary judgment regarding the reasonable possibility that the property would be freed for commercial use in the not-too-distant future, the trial court's December 16, 2024 summary judgment must be reversed. See Certain Underwriters at Lloyd's London v. United States Steel Corporation, 2019-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122 (“Because the trial court's grant of the defendants’ motion for summary judgment in this case was predicated upon the erroneous exclusion of the experts’ testimony [on defendants’ motion in limine], we also reverse the grant of the motion for summary judgment and remand this matter for further proceedings consistent with this per curiam.”)

CONCLUSION

For the reasons set forth herein, the trial court's September 8, 2023 judgment is reversed insofar as it grants the State of Louisiana, Department of Transportation and Development's August 10, 2023 motion in limine concerning evidence that the deed restrictions have been terminated or abandoned. The September 8, 2023 judgment is affirmed insofar as it grants the State of Louisiana, Department of Transportation and Development's July 25, 2023 motion to exclude Martha L. “Jinx” Jumonville's expert testimony. The December 16, 2024 summary judgment in favor of the State of Louisiana, Department of Transportation and Development is also reversed. Costs of this appeal, in the amount of $9,799.91, are assessed to the State of Louisiana, Department of Transportation and Development.

REVERSED IN PART; AFFIRMED IN PART.

FOOTNOTES

1.   In 1996, the deed restrictions for De Val Estates were amended by unanimous vote of the homeowners; however, the provisions applicable to this matter were unchanged.

2.   Requests for rezoning by the Coxes for the property were denied in 2000, 2008, and 2015.

3.   Although the Coxes were cited in 2014 for violating the parish ordinance prohibiting the sale of motor vehicles on private property on Lots 63, 64, and 65, no fine was assessed for that violation.

4.   Louisiana Revised Statutes 9:5625 provides for prescription of actions to enforce zoning and building restrictions imposed by a parish, municipality, or an instrumentality thereof:§ 5625. Violation of zoning restriction, building restriction, or subdivision regulationA. (1) All actions civil or criminal, created by statute, ordinance, or otherwise ․ which may be brought by parishes, municipalities, or their instrumentalities or by any person, firm, or corporation to require enforcement of and compliance with any zoning restriction, building restriction, or subdivision regulation, imposed by any parish, municipality, or an instrumentality thereof, and based upon the violation by any person, firm, or corporation of such restriction or regulation, must be brought within five years from the first act constituting the commission of the violation.***(3) With reference to violations of use regulations all such actions ․ must be brought within five years from the date the parish, municipality, and the properly authorized instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.(4) ․ [A]ny prescription heretofore accrued by the passage of two years shall not be interrupted, disturbed, or lost by operation of the provisions of this Section.B. In all cases where the prescription provided for herein has accrued, the particular property involved in the violation of the zoning restriction, building restriction or subdivision regulation shall enjoy the same legal status as land uses, construction features of buildings or subdivisions made nonconforming by the adoption of any zoning restriction, building restriction or subdivision regulation․***E. The provisions of this Section shall supersede any other provisions of law inconsistent herewith.

5.   Louisiana Civil Code articles 781 and 782 provide for termination of building restrictions by liberative prescription and abandonment:Art. 781. Termination; liberative prescriptionNo action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. A violation is noticeable when an apparent activity has occurred on the immovable in violation of the building restriction. The recordation of an instrument that provides for a violation of the building restriction does not constitute a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.Art. 782. Abandonment of plan or of restrictionBuilding restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When the entire plan is abandoned the affected area is freed of all restrictions; when a particular restriction is abandoned, the affected area is freed of that restriction only.

6.   DOTD also argued that Jumonville's opinion testimony should be excluded because the Coxes did not designate her as an expert witness or produce her written report timely.

7.   There were several other motions before the court at this hearing; however, they are not relevant to this appeal.

8.   The Coxes filed a supervisory writ application seeking review of the trial court's evidentiary rulings, which was denied by this court. State v. Cox, 2023-0937 (La.App. 1 Cir. 12/6/23), 2023 WL 8449580 (unpublished action).

9.   The Coxes filed an exception of prematurity to DOTD's objections, arguing that objections to their experts’ qualifications or methodologies require the filing of a motion for a pretrial evidentiary hearing in accordance with La. C.C.P. art. 1425(F), which must be filed, heard, and decided prior to the hearing on the motion for summary judgment. The trial court overruled the Coxes’ exception, noting that it was not filed until the afternoon prior to the summary judgment hearing despite the fact that the Coxes “have had [DOTD's] objections for quite some time.”

10.   Because “not-too-distant future” has no exact definition, its meaning is a factual determination to be made by the jury. Board of Commissioners of New Orleans Exhibition Hall Authority v. Missouri Pacific Railroad Company, 625 So.2d 1070, 1081 (1993).

11.   Although the heading and comments to La. Civ.Code art. 781 refer to the time period contained therein as a liberative prescription period, it is evident that the Article actually creates a peremptive time period for instituting suits for relief arising out of a violation of building restrictions. Once the two-year peremptive period passes, the cause of action no longer exists. Investment Management Services, Inc. v. Village of Folsom, 2000-0832, p. 8, n. 14 (La.App. 1 Cir. 5/11/01), 808 So.2d 597, 605, n. 14.

12.   Louisiana Civil Code article 3338 provides:The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.(2) The lease of an immovable.(3) An option or right of first refusal, or a contract to buy, sell, or lease an immovable or to establish a real right in or over an immovable.(4) An instrument that modifies, terminates, or transfers the rights created or evidenced by the instruments described in Subparagraphs (1) through (3) of this Article.

13.   Louisiana Civil Code Article 3341, entitled “Limits on the effect of recordation,” provides:The recordation of an instrument:(1) Does not create a presumption that the instrument is valid or genuine.(2) Does not create a presumption as to the capacity or status of the parties.(3) Has no effect unless the law expressly provides for its recordation.(4) Is effective only with respect to immovables located in the parish where the instrument is recorded.

14.   Pursuant to La. C.C. art. 3338, both an instrument that establishes a real right in or over an immovable and an instrument that modifies or terminates the rights created or evidenced by such an instrument are without effect as to a third parties unless they are recorded.

15.   Louisiana Code of Evidence article 702 was amended by La. Acts 2024, No. 88, § 1, effective August 1, 2024. The amendments did not change the law, but brought the language of the article into alignment with the 2023 amendments to Rule 702 of the Federal Rules of Evidence. See La. C.E. art. 702 comments - 2024.

THERIOT, J.