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

This appeal is confined to the issue of costs assessed as a result of this Court's ruling in Magner v. Deas, 2025-0393 (La. App. 4 Cir. 4/7/26), --- So.3d---, 2026 WL 935905. A more detailed factual background and procedural history of this matter may be found there.

Michael Deas appeals the trial court's judgment awarding all costs to Michael W. Magner and Elizabeth W. Magner in the amount of $6,135.50. In the underlying case, the trial court was tasked to find an equitable remedy for an unusual issue - the granting of a temporary right of use in favor of the Magners for the use of Mr. Deas’ property to erect a scaffold and make repairs to their property. Id. Our judgment of March 27, 2024 directed the trial court to make an equitable remedy in accordance with the provisions of Louisiana Civil Code Article 4. Magner v. Deas, 2023-0598 (La. App. 4 Cir. 3/27/24), 401 So.3d 43, writ denied, 2024-00518 (La. 9/17/24), 392 So.3d 637.

As the burden here fell directly and solely on Mr. Deas and he derived no benefit and in fact had to bear the burden of having his property imposed upon, it is not equitable for Mr. Deas to have to pay all of the court costs as well. A more equitable result would be for each party to pay one-half of the costs. Accordingly, we reverse the judgment of the trial court ordering Mr. Deas to pay all costs and order that each party bear one-half of the costs in this matter.

REVERSED AND RENDERED

I respectfully concur with the majority's decision to reverse the district court's March 20, 2025 judgment awarding court costs in the amount of $6,135.50, plus legal interest, to Plaintiffs Elizabeth W. Magner and Michael W. Magner (“the Magners”).

In his sole assignment of error, Defendant Michael Deas (“Mr. Deas”) contends that the district court abused its discretion in awarding costs to the Magners as the prevailing parties. He argues that he should not be compelled to pay for expert witnesses he did not retain, for litigation he did not initiate, and for costs generated by the Magners’ unsuccessful pursuit of a servitude and permanent property right over his immovable property. I agree.

Two primary provisions of Louisiana law authorize the award of costs in this matter. La. C.C.P. art. 1920 provides that “[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause,” and further that “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” Additionally, La. R.S. 13:4533 provides that “costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs, allowed by the court shall be taxed as costs.” Barre-Williams v. Ware, 20-0665, p. 5 (La. App. 4 Cir. 4/28/21), 365 So.3d 760, 768.

“Both trial and appellate courts are vested with broad discretion in the apportionment of costs.” Danna v. Ritz-Carlton Hotel Co., L.L.C., 20-0116, p. 37 (La. App. 4 Cir. 3/24/21), 365 So.3d 679, 705 (citations omitted). On review, this Court's role “is not to determine what it considers to be an appropriate award, but rather it is to review the exercise of discretion by the trier of fact.” Covington v. McNeese State Univ., 12-2182, p. 11 (La. 5/7/13), 118 So.3d 343, 351. That discretion extends to expert fees either through the expert's testimony as to the time and cost of services rendered, or through a rule to show cause brought by the prevailing party. Barre-Williams, 20-0665, p. 13, 365 So.3d at 772 (citing La. R.S. 13:3666). While the role of this reviewing court is not to substitute its judgment for that of the trier of fact as to the appropriate amount of an award, where the trial court has abused its discretion in assessing costs, the appellate court is empowered to correct that error and to reassess costs differently, including where warranted, against the party to whom costs were originally awarded. See Curry v. Healthsouth N. Rehab. Hosp-Homer Campus, 46,015, pp. 13-14 (La. App. 2 Cir. 3/11/11), 58 So.3d 1143, 1150-51 (finding the assessment of costs against indigent patient for the cost of doctor's deposition constituted an abuse of discretion even though patient was the prevailing party).

This is a neighbor-property dispute in which the Magners invoked the courts to obtain extraordinary relief over their neighbor's private immovable property. Mr. Deas did not file this suit. He did not seek affirmative relief against the Magners. He did not damage their property. He was brought into court because the Magners wanted access to his land to repair their own property.

The Magners’ petition was not a simple action to enforce an alleged access agreement. Nor was it merely a rule to determine a reasonable daily access fee. The Magners filed a “Verified Petition for Declaratory Relief, Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction,” seeking, amongst other relief, a declaratory judgment recognizing a servitude over Mr. Deas's property for repair and maintenance of the Magners’ residence “both now and in the future,” together with injunctive relief compelling Mr. Deas to recognize that alleged servitude and allow access to his property. Magner v. Deas, 23-0598, p. 2 (La. App. 4 Cir. 3/27/24), 401 So.3d 43, 46. (“Magner I”).

The district court initially denied the Magners’ petition for declaratory judgment and permanent injunction in favor of Mr. Deas. On appeal in Magner I, this Court did not grant the servitude requested by the Magners. This Court did not hold that Mr. Deas had abused his rights. Instead, this Court remanded for the district court to fashion an equitable remedy under La. C.C. art. 4, stating that the remedy was to be fashioned for both parties. Magner I, 23-0598, p. 13, 401 So.3d at 52. On remand, the district court entered judgment on January 6, 2025, granting the Magners only a narrow, court-supervised, compensated access remedy, not the servitude or permanent real right they had sought through a declaratory judgment.

That procedural posture is critical to the allocation of costs. Louisiana Civil Code article 4 permits resort to equity when no rule for a particular situation can be derived from legislation or custom. But an equitable remedy is not the equivalent of a complete plaintiff victory. The remedy fashioned on remand was intended to balance the competing property interests of neighboring landowners, not to transform Mr. Deas into a wrongdoer for asserting his ownership rights.

The district court's January 6, 2025 judgment on remand granted the Magners limited access to portions of Mr. Deas's property. This Court later described that remedy as “highly conditional and temporary” that was limited to specific areas, limited to repair and maintenance, subject to indemnification, proof of insurance, daily compensation, a twenty-one-day work period, increased compensation if that period was exceeded, and court approval for future access. Magner v. Deas, 25-0393, pp. 8-9 (La. App. 4 Cir. 4/7/26), --- So.3d ----, ----, 2026 WL 935905, *4-5 (“Magner II”).

Thus, the Magners did not obtain the permanent real right they requested. They did not obtain a predial servitude. They did not obtain an unrestricted right to come and go over Mr. Deas's property. What they obtained was a limited, conditional, compensated, court-supervised access remedy fashioned under La. C.C. art. 4.

Because the remedy fashioned on remand was equitable in nature and intended to balance the competing property interests of both neighboring landowners, the allocation of costs should not turn solely on a categorical designation of one party as “prevailing,” but on the equitable considerations contemplated by La. C.C.P. art. 1920.

La. C.C.P. art. 1920 expressly permits the court to tax costs, or any part thereof, against any party as equity requires. La. R.S. 13:4533 defines taxable costs. It does not compel those costs to be imposed on Mr. Deas, a defendant who did not initiate this litigation and who successfully defeated the servitude and permanent real-right relief sought by the Magners. Where the Magners brought the suit, pursued extraordinary access over their neighbor's immovable property, and obtained only a limited article 4 remedy rather than the principal property relief requested, equity requires that the taxable costs be assessed to the Magners. See Carollo v. Wilson, 353 So.2d 249, 254 (La. 1977) (taxing entire costs of appeal against plaintiffs was improper where only defendants appealed and were only partially successful in their appeal); see also Curry, 46,015, pp. 13-14, 58 So.3d at 1150-51 (taxing costs against indigent patient even though prevailing party was an abuse of discretion).

The analogy to La. C.C. art. 670 further illustrates the inequity of taxing Mr. Deas with costs. Article 670 provides that when a good-faith encroaching building is allowed to remain, the owner of the building acquires a predial servitude only upon payment of compensation for the value of the servitude taken and for any other damage the neighbor has suffered. Although this case does not fall directly under article 670, the principle is instructive. When the law requires one owner to tolerate a burden on his property for the benefit of another, the burdened owner is compensated. He is not additionally made to pay the costs generated by the neighboring owner's unsuccessful attempt to obtain broader property rights. The same principle applies here. Mr. Deas must tolerate the burden; he should not also be cast with the costs of imposing it.

The Magners were entitled to seek relief from the courts. But having chosen to seek a servitude, continuing access, and permanent injunctive relief over Mr. Deas's immovable property, and having failed to obtain the principal property relief requested, they should not shift the costs of that litigation to the landowner they sued.

By treating the Magners as though they had unequivocally prevailed and Mr. Deas as though he had been wholly cast in judgment, the district court failed to undertake the equitable allocation required by La. C.C.P. art. 1920. In my view, that failure constituted an abuse of discretion.

For these reasons, I agree with the majority that the district court erred in awarding the Magners court costs of $6,135.50 and that the judgment should be reversed. However, I would render judgment taxing all taxable costs of the trial court proceedings to the Magners.

Accordingly, I respectfully concur in part and dissent in part.

I respectfully dissent from the majority opinion. The majority finds that it is not equitable for Mr. Deas to have to pay the entire court costs.

There are two main provisions of law that authorize the award of costs, specifically, La. C.C.P. art. 1920 and La. R.S. 13:4533. Barre-Williams v. Ware, 2020-0665, p. 5 (La. App. 4 Cir. 4/28/21), 365 So.3d 760, 768. La. C.C.P. art.1920 states “[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” La. R.S. 13:4533 further provides that the “costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.”

Additionally, “[t]rial courts are required to determine the reasonable amount of expert fees either through the testimony of the expert in relation to the time and cost of his or her services or through a rule to show cause brought by the prevailing party for the purpose of determining the amount of expert fees to be paid by the party cast in judgment.” Barre-Williams, 2020-0665, p. 13, 365 So.3d at 772 (citing La. R.S. 13:3666). Trial and appellate courts are vested with discretion in the apportionment of costs. Danna v. Ritz-Carlton Hotel Co., L.L.C., 2020-0116, p. 38 (La. App. 4 Cir. 3/24/21), 365 So.3d 679, 705.

The majority opinion is inapposite to Louisiana jurisprudence on the role of the reviewing court. Whether a party benefits or has been inconvenienced by litigation is not the test to determine abuse of discretion. “[T] he role of the reviewing court is not to determine what it considers to be an appropriate award, but rather it is to review the exercise of discretion by the trier of fact.” Covington v. McNeese State Univ., 2012-2182, p. 11 (La. 5/7/13), 118 So. 3d 343, 351.

Here, the Magners prevailed in this suit. The fact that Mr. Deas did not derive a benefit from the suit does not preclude the trial court from taxing those costs against him. In light of the record reflecting that the Magners were the prevailing parties and the trial court acted within its authority in taxing costs, I find no abuse of discretion in the trial court's award.

I would affirm the trial court's March 20, 2025 judgment awarding costs to the Magners.

Judge Daniel L. Dysart

LOBRANO, J., CONCURS IN PART AND DISSENTS IN PART JENKINS, J., DISSENTS WITH REASONS