Chambless v. Parker

867 So. 2d 974, 2004 WL 385013
CourtLouisiana Court of Appeal
DecidedMarch 3, 2004
Docket38,276-CA
StatusPublished
Cited by4 cases

This text of 867 So. 2d 974 (Chambless v. Parker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chambless v. Parker, 867 So. 2d 974, 2004 WL 385013 (La. Ct. App. 2004).

Opinion

867 So.2d 974 (2004)

Robert & Collene CHAMBLESS, Plaintiffs-Appellees
v.
Sheila A. PARKER, Defendant-Appellant.

No. 38,276-CA.

Court of Appeal of Louisiana, Second Circuit.

March 3, 2004.

*975 Paul Loy Hurd, Monroe, for Appellant.

Fred R. McGaha, Monroe, for Appellees.

Before PEATROSS, DREW & LOLLEY, JJ.

*976 PEATROSS, J.

This appeal arises from a denial of Defendant Sheila Parker's ("Parker") motion for summary judgment and grant of Plaintiffs' Robert and Collene Chambless, Jerry and Marilyn Moses and Hollis Faulk ("Plaintiffs"), motion for summary judgment. Parker now appeals the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

In July 2000, Parker purchased two lots (Lots 10 and 11) in the "Frost Estates," a subdivision in Ouachita Parish. Parker purchased the lots with the intent of renting out mobile home slots. In late August or early September 2000, Parker had placed four mobile homes on the properties and had leased some of them for residential occupancy. On October 27, 2000, Plaintiffs filed suit against Parker alleging that, according to the building restriction found in the deeds from the original landowner to the first vendees of Lots 10 and 11, the owner of the land could have no more than one residence on the land and the land could not be used for anything other than a residential purpose. The restriction found in the original deeds provided that:

Said property shall be used for residential purpose only and only one residence shall be constructed thereon, the same to cost not less than $10,000.[1]

This restriction was not in the deeds given to Parker by her predecessor in title when she purchased the land; however, the building permits she received from the Ouachita Parish Clerk of Court's office state that she should make herself aware of possible deed restrictions. In their lawsuit, Plaintiffs sought to enjoin Parker from using Lots 10 and 11 for any commercial purposes, other than what is consistent with the restriction found in the deeds.[2]

Subsequently, Plaintiffs filed a motion for summary judgment with the trial court and Parker also filed a motion for summary judgment, arguing that the restriction in the original deeds does not qualify as a building restriction because the subdivision does not meet the requirements of a general development plan as required by La. C.C. art. 775, et seq. La. C.C. art. 775 provides:

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.

Further, Parker asserted that the restriction in the original deeds does not even qualify as a predial servitude because it does not meet the requirements for predial servitudes found in La. C.C. art. 646, et seq., and La. C.C. art. 697, et seq.

In addition, Parker contended that, if the court found that the restriction in the deeds did qualify as a building restriction, this restriction has been abandoned pursuant to La. C.C. art. 782, which provides:

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 *977 is abandoned, the affected area is freed of that restriction only.

In support of her argument, Parker submitted evidence that she asserted showed that the surrounding communities of her subdivision consist of mobile homes and mobile home parks, that two lots in her subdivision have mobile homes on those lots and that one lot owner in her subdivision is operating a commercial welding service. Finally, Parker also contends that, if the court found that the restriction in the deeds did qualify as a building restriction, she is following the restriction because the mobile homes on her property are residential activity.

The trial court granted Plaintiffs' motion for summary judgment, finding that the restriction in the deeds is either a building restriction or a predial servitude; and, consequently, since no genuine issue of material fact was remaining, Plaintiffs were entitled to their injunction against Parker. Parker's motion for summary judgment was denied. Parker now appeals, raising the following assignments of error (verbatim):

1. The district court committed legal error in finding that the Frost language meets all the legal requirements to comprise "building restrictions" under La. C.C. art. 775 et seq;

2. The district court committed legal error in finding that the Frost language meets all the legal requirements to comprise a "predial servitude" under La. C.C. art. 646 et seq;

3. The district court committed legal error in failing to find that, assuming that the Frost language is a "building restriction" under La. C.C. art. 775 et seq., said building restrictions has been abandoned under La. C.C. art. 782, in relation to any prohibition of the placement of multiple mobile homes on lots 10 and 11; and,

4. The district court's factual finding that renting mobile home slots for residential mobile homes is inconsistent with the Frost language, in that this activity (1) is a "residential" activity, and (2) does not involve the construction of any improvement that are prohibited by the Frost Language.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Building Restrictions

Parker argues that the subdivision does not meet the requirements of La. C.C. art. 775, because the building restriction in the deeds is not part of a general development plan; and, thus, it cannot be enforced. We do not agree.

The property owners in the subdivision have the right to bring enforcement actions to prohibit any use of the property that does not comport with the general plan of development. See La. C.C. art. 779 and comments thereafter. Courts in *978 Louisiana have held that, in order for a building restriction to be enforced, however, it must be part of a general development plan. See R And K Bluebonnet, Inc. v. Patout's of Baton Rouge, Inc., 521 So.2d 634 (La.App. 1st Cir.1988). Building restrictions constitute real rights[3] only in the framework of subdivision planning. Ezell v. Vaughn, 496 So.2d 534 (La.App. 1st Cir.1986). In Murphy v. Marino, 60 So.2d 128 (La.App.

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Cite This Page — Counsel Stack

Bluebook (online)
867 So. 2d 974, 2004 WL 385013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chambless-v-parker-lactapp-2004.