JOHN MARKS III PATRICK MARKS MARY HOWARD SCOTT MARKS CYNTHIA WHEELER DARLENE DUDA PATRICIA LIUZZA DIANA WEBB THEODORE LANGE JOSEPH LANG JR AND THAIS LANGE v. DONNIE FOLSE BRIAN FOLSE AND JEANNETE FOLSE (2026)

Defendants, Donnie J. Folse, Brian Folse, Jeanette Folse,² and Bayou Boys Cove, LLC, appeal the trial court's February 10, 2025 judgment granting, in part, plaintiffs’ motion for partial summary judgment and denying defendants’ motion for partial summary judgment. For the following reasons, we vacate in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Ranger Land Company, Incorporated (“Ranger Land”) was once the owner of immovable property in Tangipahoa Parish that was described as “[t]he entire Section of Headright 43, Township 4 South, Range 9 East, West of the Tchefunct River, containing 160 acres” (the “Original Parcel”).³ In September 1969, Ranger Land, as “GRANTOR,” granted Washington-St. Tammany Electric Cooperative, Inc. (“WST”), as “GRANTEE,” and “its successors and assigns,” a right of “servitude to construct, operate, and maintain a 69 KV electric transmission line․together with a right-of-way one hundred feet in width” over the Original Parcel (the “ROW”). The ROW contains the following pertinent language (the “Reservation”):

It is stipulated that said right-of-way shall never be fenced by GRANTEE [WST] and that GRANTOR [Ranger Land] shall have full use of said right-of-way and the right to cultivate and otherwise use said right-of-way except for the purposes for which the same is herein conveyed to GRANTEE [WST].

The ROW was recorded in the records of the Clerk of Court for the Parish of Tangipahoa.

In 1970, Ranger Land sold the Original Parcel to Wayne Wascom, granting him all rights it had to the property. Wayne Wascom then sold an undivided one-half interest in the Original Parcel to Ronald S. Wascom. Thereafter, by voluntary acts, Wayne Wascom and Ronald Wascom (collectively referred to as the “Wascoms”) divided the Original Parcel into four separate parcels by four separate sales. Three of the parcels are now owned by plaintiffs, John S. Marks, III, Patrick L. Marks, Mary M. Howard, Scott Marks, Cynthia L. Wheeler, Darlene L. Duda, Patrica L. Liuzza, Dianna L. Webb, Theodore W. Lange, Joseph L. Lange, Jr., and Thais M. Lange (collectively referred to as “plaintiffs”).

The fourth parcel voluntarily divided by the Wascoms, which contained 23 acres, was sold to Morgan W. Reid and was thereafter divided into four contiguous separate parcels. Morgan Reid's son and successor, Larry L. Reid, and his wife, Linda Lemons Reid (collectively referred to as the “Reids”), now own one of the four parcels, which is described by the parties as “Tract A.” Donnie Folse and his brother purchased two of the four parcels from the Reids, which are referred to by the parties as “Tract B” and “Tract C.” Donnie Folse also purchased the largest of the four parcels, containing approximately 18.40 acres, and then sold that parcel to Bayou Boys Cove, LLC, a Louisiana company of which he is a managing member. Donnie Folse commissioned the preparation of the map below (the “Survey”), which provides a visual representation of Tracts A, B, and C, and the 18.40-acre parcel, which were once part of the Original Parcel.

Tabular or graphical material not displayable at this time.

Although not labeled on the Survey above, plaintiffs own 118 acres of property (sometimes referred to as “plaintiffs’ property”), which is comprised of the three parcels that were previously part of the Original Parcel. Plaintiffs’ property is adjacent to the west and north sides of the Tract A, Tract B, Tract C, and the 18.40-acre parcel. Plaintiffs’ property has no access to a public road, i.e., it is landlocked. The ROW is depicted on the above map by parallel dash lines running from the northwest in plaintiffs’ property to the southeast in the 18.40-acre parcel, with a line inside the dash lines labeled “E,” representing WST's powerline.

On August 10, 2021, plaintiffs filed a petition against Donnie J. Folse, Jeannette Folse, Brian Folse, and Bayou Boys Cove, LLC ⁴ (collectively referred to as “defendants”) seeking declaratory judgment that plaintiffs have a right to a servitude of passage over defendants’ property. In their first amended petition, plaintiffs alleged that due to the Wascoms’ voluntary acts dividing the Original Parcel, plaintiffs’ property, which they alleged is the “Dominant Estate,” became enclosed. Plaintiffs alleged defendants, as owners of the “Servient Estate,” must allow gratuitous passage across their property to Campground Road pursuant to La. C.C. art. 694. Alternatively, plaintiffs alleged they are entitled to a legal servitude across defendants’ property pursuant to La. C.C. art. 689 because it is the shortest path to the nearest public road, Campground Road. In their third amended petition, plaintiffs added the Reids and WST as party defendants.⁵ As is pertinent to this appeal, plaintiffs alleged that they are entitled to utilize the ROW granted by Ranger Land to WST to access the Reids’ and defendants’ property because the ROW is a predial servitude.

Defendants answered plaintiffs’ suit, generally denying the allegations in their original and amended petitions and asserting affirmative defenses, including that plaintiffs’ property became enclosed as a result of a voluntary act by the owner, and therefore, defendants are not required to furnish passage over their property to plaintiffs. Defendants also filed a reconventional demand against plaintiffs, alleging their suit delayed defendants’ plans to develop their immovable property to erect campgrounds and personal residences.

On April 18, 2024, plaintiffs filed a motion for partial summary judgment, contending the Reservation in the ROW created a right of use in favor of Ranger Land and that the right of use is a predial servitude, which plaintiffs are entitled to use to cross the Reids’ and defendants’ property. Plaintiffs argued the ROW has been continuously maintained by WST and is located on their property and the property of the Reids and defendants. Plaintiffs asserted the Reids’ and defendants’ property link their property to the closest public road, Campground Road. As an alternative ground for partial summary judgment, plaintiffs argued they are entitled to a servitude across the Reids’ and defendants’ property based on La. C.C. art. 694.

Defendants filed an opposition to plaintiffs’ motion for partial summary judgment and a cross-motion for partial summary judgment, arguing their property is not charged with a predial servitude for the benefit of the plaintiffs and plaintiffs are not entitled to a gratuitous right of passage. Defendants asserted that plaintiffs have never exercised passage across their property, including through the use of the ROW. Defendants argued the ROW is a personal servitude, granted to WST by Ranger Land, the predecessor in title of the property owned by plaintiffs and defendants. Defendants contended that plaintiffs were “seeking to impose a greater burden on [d]efendants[’] [p]roperty than stipulated in the title, [i.e.], [p]laintiffs[’] use of [d]efendants’ property [in addition to] WST's use.” Defendants also argued the ROW is not transferrable to plaintiffs. Lastly, defendants asserted that plaintiffs are not entitled to gratuitous passage over their property because the Wascoms, plaintiffs’ predecessor in title, voluntarily enclosed plaintiffs’ property when they sold the fourth parcel of the Original Parcel to Morgan Reid.

Plaintiffs filed a reply to defendants’ opposition and cross-motion for partial summary judgment. Plaintiffs objected to certain portions of affidavits filed in support of defendants’ opposition and cross-motion for partial summary judgment. Plaintiffs argued defendants’ assertion that the ROW created a personal servitude is irrelevant to their motion for partial summary judgment because their motion for partial summary judgment asserts that the Reservation in the ROW created a predial servitude.

Following a hearing on August 26, 2024, the trial court took the cross-motions for partial summary judgment under advisement.⁶ On October 7, 2024, the trial court signed written reasons for judgment, finding Ranger Land, in granting WST the ROW, “reserved a right to use the [ROW] which is presently located on the estates of both parties.” The trial court further found the Reservation “created a predial servitude of access over the servient estate belonging to Defendants in favor of the dominant estate owned by Plaintiffs.” The trial court determined its judgment on plaintiffs’ first issue raised in their motion for partial summary judgment mooted consideration of whether plaintiffs are entitled to gratuitous passage over defendants’ property. The trial court pretermitted ruling on the plaintiffs’ evidentiary objections, finding the contested affidavits pertained to the issue of whether plaintiffs are entitled to gratuitous passage over defendants’ property.

On February 10, 2025, the trial court signed a written judgment granting, in part, plaintiffs’ motion for partial summary judgment, ordering, adjudging and decreeing that plaintiffs’ property is not landlocked and the Reservation “created a predial servitude of access over the servient estate now owned by [defendants] in favor of the dominant estate now owned by [plaintiffs].” The trial court denied defendants’ cross-motion for partial summary judgment, pretermitted ruling on plaintiffs’ evidentiary objections, and found the issue of whether plaintiffs are entitled to gratuitous passage to be moot. The trial court designated its judgment as final pursuant to La. C.C.P. art. 1915(B)(1), after determining there was no just reason for delay.⁷ Defendants subsequently appealed.

RULE TO SHOW CAUSE

On February 10, 2026, this Court, ex proprio motu, issued a show cause order that noted an apparent defect in the appeal. In particular, the record reveals that defendants’ “Motion and Order for Suspensive Appeal,” filed on March 25, 2025, listed “the Estate of Jeanette Folse” as one of the movants. However, the record does not contain a motion or corresponding order to substitute Jeannette Folse with the Estate of Jeanette Folse. Further, the record does not indicate when Jeanette Folse died. Accordingly, this Court instructed the parties to show cause by briefs why the Estate of Jeanette Folse is a party properly before this Court on appeal. On March 2, 2026, defendants filed a brief with this Court advising that Jeannette Folse passed away on October 27, 2024. As noted, the trial court's judgment granting, in part, plaintiffs’ motion for partial summary judgment and denying defendants’ cross-motion for partial summary judgment was signed on February 10, 2025.

It is well established that a judgment for or against a deceased person is an absolute nullity. Horrell v. Barrios, 2016-1547 (La. App. 1 Cir. 3/15/18), 2018 WL 1373653, *9 (unpublished), writ denied, 2018-0931 (La. 9/28/18), 253 So. 3d 144; Page v. Page, 98-1625 (La. App. 1 Cir. 9/24/99), 762 So. 2d 18, 19 n.1; White v. Givens, 491 So. 2d 63, 64 (La. App. 1 Cir. 1986). As such, the portions of the February 10, 2025 judgment rendered against Jeannette Folse are an absolute nullity and are vacated and set aside. See Horrell, 2018 WL 1373653 at *9; Page, 762 So. 2d at 19 n.l.

ASSIGNMENTS OF ERROR

Defendants assign the following as error:

(1) The trial court erred in granting summary judgment to [plaintiffs] that Ranger Land Company, Inc.’s reservation of use of the [ROW] it granted to WST created a predial servitude on [defendants’] property.

(2) The trial court erred in denying [defendants’] motion for [partial] summary judgment that [plaintiffs] are not entitled to gratuitous passage across [defendants’] property under La. C.C. [a]rt. 694.[8]

SUMMARY JUDGMENT

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show 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. See 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. See La. C.C.P. art. 967(B). If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Id.

An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Wiggins v. Schneider, 2023-1303 (La. App. 1 Cir. 9/19/24), 405 So. 3d 622, 626. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id.

DISCUSSION

The Reservation as a Predial Servitude - Assignment of Error No. 1

Defendants argue the ROW is not a predial servitude, but a personal servitude of right of use, because it was granted by Ranger Land to WST for the benefit of WST not for the benefit of a distinct corporeal immovable. Defendants also point out that at the time the ROW was granted, there was only one tract of land at issue, which was owned by Ranger Land. Defendants argue that they and plaintiffs have the right to use the ROW as provided in the Reservation on their respective properties, but not have a right to use the ROW on the other party's property. Defendants argue that construing the Reservation as a predial servitude to allow plaintiffs access across their property imposes a greater burden on defendants’ property than the ROW, a result that is proscribed by La. C.C. art. 642. Defendants request that this Court reverse the portion of the trial court's judgment granting plaintiffs’ motion partial summary judgment.

There are two types of servitudes—personal and predial—and they each confer a real right on the holder of the servitude. Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 2010-2267 (La. 10/25/11), 79 So. 3d 246,258 (citing La. C.C. arts. 476, 533). A personal servitude is a charge on a thing for the benefit of a person. There are three sorts of personal servitudes: usufruct, habitation, and rights of use. La. C.C. art. 534. A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners. La. C.C. art. 646. A predial servitude continues as a charge on the servient estate when ownership changes. La. C.C. art. 650(B). The use and extent of such servitudes are regulated by the title by which they are created. La. C.C. art. 697. If a servitude is imposed on an estate in favor of a person, rather than in favor of another estate, it is not a predial servitude but a personal servitude of right of use pursuant to La. C.C. arts. 639-645. Faulk v. Union Pacific Railroad Company, 2014-1598 (La. 6/30/15), 172 So. 3d 1034, 1046 n.16.

One practical distinction between the two kinds of servitudes is that predial servitudes pass with transfers of the servient estate while personal servitudes do not inure to the benefit of transferees of the land owned by the person in whose favor the servitude was established. Guillotte v. Wells, 485 So. 2d 187, 189 (La. App. 1986). Predial servitudes are considered derogations of public policy because they form restraints on the free disposal and use of property. Palomeque v. Prudhomme, 95-0725 (La. 11/27/95), 664 So. 2d 88, 93. Therefore, predial servitudes are not viewed with favor by the law and can never be sustained by implication. Id. Any doubt as to the existence, extent, or manner of exercise of a predial servitude must be resolved in favor of the servient estate. Id.; La. C.C. art. 730.

When the act establishing a servitude does not declare expressly that the right granted is for the benefit of an estate or for the benefit of a particular person, the nature of the right is determined in accordance with La. C.C. arts. 733 and 734. See La. C.C. art. 732. When the right granted confers an advantage on an estate, it is presumed to be a predial servitude. La. C.C. art. 733. When the right granted is merely for the convenience of a person, it is not considered to be a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs and assigns. La. C.C. art. 734. Thus, in order to classify the servitude created in the Reservation, a determination must first be made whether the Reservation simply benefits a person or whether it benefits a separate estate.

The language of the Reservation does not expressly state that it is granted for the benefit of an estate. The Reservation provides that the “GRANTOR shall have full use of said right-of-way and the right to cultivate and otherwise use said right-of-way except for the purpose for which the same is herein conveyed to the GRANTEE.” As stated, rights of use are generally considered personal servitudes. See La. C.C. art. 534. Additionally, our review of the Reservation must be viewed in light of the other provisions in the ROW so that each is given the meaning suggested by the contract as a whole. See La. C.C. art. 2050. Notably, the term “GRANTEE” is identified in the ROW as “WASHINGTON-ST. TAMMANY ELECTRIC COOPERATIVE, INC., a Louisiana corporation[,]․its successors and assigns[.]” (Emphasis added). Another section of the ROW provides that “GRANTEE, its successors and assigns” are entitled to the ROW as long as it is exercised without lapse for a period of one year. In comparison, the term “GRANTOR” is identified in the ROW as “RANGER LAND COMPANY, INC., a corporation organized under the laws of the State of Louisiana.” The ROW, and more specifically, the Reservation, does not contain any language referring to Ranger Land's successors or assigns.

Pursuant to La. C.C. art. 2049, we are obligated to give practical effect to all parts of the ROW, so as to avoid rendering any portion thereof meaningless. The ROW granted by Ranger Land in favor of WST contains the “successors and assigns” language indicating it is predial in nature, while the Reservation does not. Such language could have easily been added to the Reservation, but the parties opted not to do so. Considering that predial servitudes are not favored by the law, and doubt as to their existence is resolved in favor of the servient estate, we find the Reservation did not create a predial servitude. See Palomeque, 664 So. 2d at 93; La. C.C. art. 730.⁹ Accordingly, we find the trial court erred by granting partial summary judgment to plaintiffs on this issue and we reverse that portion of the trial court's February 10, 2025 judgment.¹⁰

Gratuitous Passage Pursuant to La. C.C. art. 694 - Assignment of Error No. 2

In their second assignment of error, defendants argue the trial court erred by denying their cross-motion for summary judgment that plaintiffs are not entitled to gratuitous passage across defendants’ property pursuant to La. C.C. art. 694. In doing so, defendants initially assert that plaintiffs’ evidentiary objections to affidavits attached to defendants’ cross-motion for partial summary judgment should be overruled.

In their opposition to defendants’ cross-motion for partial summary judgment and reply to plaintiffs’ motion for partial summary judgment, plaintiffs raised evidentiary objections to affidavits by Larry Reid, Donnie Folse, and Andrea B. Carroll.

As discussed, the trial court found the portion of its February 10, 2025 judgment that granted, in part, plaintiffs’ motion for partial summary judgment and declared that the Reservation created a predial servitude rendered moot the issue of whether plaintiffs are entitled to gratuitous passage across defendants’ property. Therefore, the trial court pretermitted ruling on plaintiffs’ evidentiary objections. The trial court also denied defendants’ motion for partial summary judgment. The trial court's February 10, 2025 judgment does not contain language denying, in part, plaintiffs’ motion for partial summary judgment as to the issue of gratuitous passage. However, considering that the trial court pretermitted ruling on plaintiffs’ evidentiary objections as moot, we construe its silence as a denial of plaintiffs’ motion for partial summary judgment as to the issue of gratuitous passage. See Tucker v. Chatfield, 2023-0343 (La. App. 1 Cir. 11/9/23), 379 So. 3d 678, 684.

As we have determined the trial court erred by granting plaintiffs’ motion for partial summary judgment finding the Reservation created a predial servitude in favor of plaintiffs, and we reverse that portion of the trial court's judgment. Accordingly, we also vacate the portion of the trial court's judgment pretermitting plaintiffs’ evidentiary objections and denying defendants’ motion for partial summary judgment. As the issue of gratuitous passage is no longer moot, we remand this matter to the trial court to rule on plaintiffs’ evidentiary objections pursuant to La. C.C.P. art. 966(D)(2) and to rule on plaintiffs’ motion for partial summary judgment and defendants’ cross-motion for partial summary judgment as to the issue of gratuitous passage.

CONCLUSION

Pursuant to this Court's Rule to Show Cause Order, the portions of the trial court's February 10, 2025 judgment rendered against Jeannette Folse are vacated. The portion of the trial court's judgment granting, in part, the motion for partial summary judgment filed by plaintiffs, John S. Marks, III, Patrick L. Marks, Mary M. Howard, Scott Marks, Cynthia L. Wheeler, Darlene L. Duda, Patricia L. Liuzza, Dianna L. Webb, Theodore W. Lange, Joseph L. Lange, Jr. and Thais M. Lange, is reversed. The portions of the trial court's judgment pretermitting consideration of plaintiffs’ evidentiary objections and denying the motion for partial summary judgment filed by defendants, Donnie J. Folse, Brian Folse, and Bayou Boys Cove, LLC, are vacated. This matter is remanded for further proceedings consistent with this opinion. All costs of this appeal are assessed to plaintiffs, John S. Marks, III, Patrick L. Marks, Mary M. Howard, Scott Marks, Cynthia L. Wheeler, Darlene L. Duda, Patricia L. Liuzza, Dianna L. Webb, Theodore W. Lange, Joseph L. Lange, Jr. and Thais M. Lange.

VACATED IN PART; REVERSED IN PART; AND REMANDED.

FOOTNOTES

2.   Jeannette Folse is sometimes spelled “Jeanette” or “Jeannete” in the record of this matter. We use the spelling “Jeannette” as used in defendants’ answer to plaintiffs’ suit.

3.   According to an affidavit by Cynthia L. Wheeler, one of the plaintiffs in this matter, the acreage used to describe the Original Parcel is not accurate.

4.   Bayou Boys Cove, LLC was added as a party defendant pursuant to plaintiffs’ second amended petition. Plaintiffs also filed a notice of lis pendens burdening defendants’ property.

5.   Plaintiffs also added as party defendants J. Thomas Lewis, Carl R. Schneider and William D. Reimers, as Testamentary Trustees for Carl Reimers Schneider, John Fredrick Schneider and Fay Adele Schneider under the will of Frederick William Reimers (collectively referred to as the “Marietta Trust”) and J. Thomas Lewis, Carl R. Schneider or William D. Reimers, as Testamentary Trustees for Frederick Anderson Reimers, Alison Jean Reimers Lyell, Margaret Warren R. Graves and John Anderson Reimers, under the will of Frederick William Reimers (collectively referred to as the “Warren Trust”). Plaintiffs alternatively alleged that if the Marietta Trust and the Warren Trust own immovable property that provides the shortest route to a public road, then plaintiffs are entitled to a legal servitude across that property pursuant to La. C.C. art. 689.

6.   The record before this Court does not indicate whether the Reids filed an opposition to plaintiffs’ motion for partial summary judgment. According to the transcript of the August 26, 2024 hearing, the Reids did not make an appearance at the hearing.

7.   Louisiana Code of Civil Procedure article 1915 was amended and reenacted by La. Acts 2025, No. 250, § 3, effective August 1, 2025. The revisions remove from Paragraph B the authority of the trial court to designate a judgment as final and appealable after an express determination that there is no just reason for delay. However, the amendments to Article 1915 have prospective application only and do not apply to appeals and supervisory writs filed prior to August 1, 2025, the effective date of the Act. See La. Acts. 2025, No. 250, § 6. The instant appeal was filed prior to the effective date of the 2025 amendment. Thus, we apply the version of La. C.C.P. art. 1915 in effect at the time. In applying the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So. 2d 1113, 1122, we conclude that the trial court properly designated the judgment as a final judgment for purposes of appeal.

8.   The denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law. However, where there are cross-motions for summary judgment raising the same issues, this Court will review the denial of a summary judgment in addressing the appeal of the granting of the cross-motion for summary judgment. Harris v. Imperial Fire and Casualty Insurance Company, 2020-1323 (La. App. 1 Cir. 7/21/21), 328 So. 3d 1208, 1214 n. 3, writ denied, 2021-01282 (La. 11/17/21), 327 So. 3d 994.

9.   We also note that even were we to find the Reservation created a predial servitude, plaintiffs did not move for summary judgment against WST, the holder of the ROW. As stated, the Reservation provides that Ranger Land has a right of use of the ROW “except for the purpose for which the same is herein conveyed to [WST].” There was no evidence presented by plaintiffs demonstrating their use of the Reservation would not interfere with WST's use of the ROW. Additionally, we agree with defendants that allowing plaintiffs access across their property would impose a greater burden on defendants’ property than stipulated in the Reservation. See La. C.C. art. 642.

10.   Defendants do not request that this Court grant the portion of their motion for partial summary judgment as to this issue.

BALFOUR, J.