Deshawn Damien Shaw v. Live Oaks Towne Homes Association,inc.

• Court: Louisiana Court of Appeal
• Decided: May 9, 2018
• Docket: CA-0018-0027
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

18-27

DESHAWN DAMIEN SHAW

VERSUS

LIVE OAKS TOWNE HOMES ASSOCIATION, INC.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20161151 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

JOHN E. CONERY JUDGE

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery, Judges.

AFFIRMED. John Stafford Irion, Jr. Attorney at Law Post Office Box 3412 Lafayette, Louisiana 70502 (337) 233-0505 COUNSEL FOR PLAINTIFF/APPELLANT: Deshawn Damien Shaw

Lawrence Edward Marino Patrick Bayard McIntire Oats & Marino, P.P.C. 100 East Vermilion Street Suite 400 Lafayette, Louisiana 70501 (337) 233-1100 COUNSEL FOR DEFENDANT/APPELLEE: Live Oaks Towne Homes Association, Inc. CONERY, Judge.

Plaintiff-Appellant Deshawn Damien Shaw filed suit seeking to enjoin Live

Oaks Towne Homes Association, Inc. (the Association) from assigning parking

spaces in the common area of the Live Oaks Towne Homes Development (the

Development). 1 The Association reconvened, seeking to enjoin Mr. Shaw from

parking in violation of the Association’s parking rules. The trial court granted

summary judgment in favor of the Association, finding no genuine issue of material

fact that the Association had the authority to assign parking spaces in the common

area of the Development. The trial court further granted the Association’s

reconventional demand enjoining Mr. Shaw from continuing to violate the

Association’s parking rules. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The town home development at issue was designed and recorded on January

7, 1983, under entry number 83-862 in the conveyance records of the Clerk of Court

of Lafayette Parish. The map of the Development indicates the proposed

construction of both Phase I and Phase II, which includes a total of twenty-nine lots.

The “LEGEND” provides that the “UNITS” are designated with diagonal lines and

the “PATIOS” are designated with dots and referred to as “limited common area.”

Under the heading entitled “NOTES” under number ten, the “LEGEND” states,

“ALL AREAS NOT DESIGNATED AS A UNIT OR PATIO IS COMMON AREA

TO THE SUBDIVISION.” The map also shows lines which appear to be parking

spaces for the Development but are not specifically designated as such on the Legend.

1 Mr. Shaw’s petition also included a claim for the cost or value of improvements he allegedly made to a carport in the common area. This claim was not briefed to the trial court or to this court on appeal. Therefore, Mr. Shaw’s claim for reimbursement for the cost or value of the alleged improvements cannot be considered by this court on appeal. Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(4). On April 7, 1983, the Developers filed an “Amended and Restated Declaration

of Servitudes, Conditions and Restrictions of Live Oaks Towne Homes,” (the

Declaration) dated March 24, 1983. The Declaration was amended and recorded on

June 17, 1996. However, the original restrictions pertinent to this litigation were not

changed other than to replace Article XIII, Paragraph 7 with the following language,

“[T]his Declaration may be amended as provided in the By-Laws of the Association.”

Article II of the Declaration, “SCOPE OF THE DECLARATION,” Section 3,

entitled, “OWNER’S RIGHTS SUBJECT TO THE PROVISIONS OF THIS

DECLARATION,” provides, “[E]ach owner shall own his Unit and improvements

thereon for use as such Owner’s primary single family residence, and shall have full

and complete dominion thereof subject to the provisions of this Declaration.”

Article III of the Declaration, “PROPERTY RIGHTS AND SERVITUDES,”

Section 1, entitled, “RIGHT OF USE,” provides, “[E]very owner shall have a

nonexclusive servitude upon, over and across all streets, drives, pedestrian

walkways, and all Common Areas, with the exception of Limited Common Areas,

for access to and enjoyment of such Owner’s Unit.” (Emphasis added).

Article IV of the Declaration, “USE AND OTHER RESTRICTIONS,”

Section 15, entitled, “RULES,” states, “[E]very owner, his guests, members of his

family, servants, employees, invites, lessees and licensees shall strictly adhere to the

Rules.”

Article VI of the Declaration, entitled, “THE ASSOCIATION,” Section 1

(emphasis added), states:

Declarant (Developer) has caused to be incorporated as a non-profit corporation, the Live Oaks Towne Homes Association, Inc.; said Association is to be the manager of the Property herein known as the Live Oaks Towne Homes. Any purchaser of any of the Units shall be deemed to have assented to such designation and management, and

2 ratified and approved same. The Association, by its signature approving this Declaration, has agreed to perform the duties required of it hereunder. The Association and the Board thereof shall have the following duties, rights and powers.

In Article I of the Declaration entitled “DEFINITIONS,” “Association” is

defined as the “Live Oaks Towne Homes Association Inc., a Louisiana Corporation,”

and “Common Area(s)” is defined as “the Property, less and except the Units,

including all Limited Common Areas,” which have been identified as the “PATIOS”

attached to some of the Units.

Article VI of the Declaration further defines the specific “DUTIES AND

RESPONSIBILITIES OF LIVE OAKS TOWN[E] HOMES ASSOCIATION, INC,”

which include in pertinent part the following, “(a) To adopt Rules in accordance with

the By-Laws of the Association for the regulation and operation of the Property” and

“(f) To enjoin or seek damages from the Owners for violations of the covenants or

for violation of the rules.”

Attached to the end of the Declaration is a document also dated March 24,

1983, described as an “EXTRACT OF RESOLUTION OF LEBLANC-MANCINI

INVESTMENTS, INC,” in which the Developers:

Resolved, that Samuel C. LeBlanc, Jr., President of this Corporation, be and is hereby authorized, empowered and directed by and on behalf of this Corporation in its capacity as a general partner of Live Oaks Towne Homes Development-1980, a Louisiana general partnership, (“Live Oaks”), to execute and deliver the following:

(a) An Act of Transfer pursuant to which Live Oaks shall convey all of its right, title and interest in and to the Common Areas of Live Oaks Towne Homes, Lafayette Parish, Lafayette unto Live Oaks Towne Home Association, Inc., said Common Areas being more fully described in the Declaration of Servitudes, Conditions and Restrictions of Live Oak Towne Homes, as amended; and

(b) An Amended and Restated Declaration of Servitudes, Conditions and Restrictions of Live Oaks Towne Homes pursuant to which Live

3 Oaks shall amend the terms of the said Declaration of Servitudes, conditions and Restrictions as set forth therein.

Therefore, as of the April 7, 1983 filing and recordation of the Declaration

and the Extract dated March 24, 1983, all authority to control the Development,

specifically including the “Common Areas” previously defined as any part of the

property not contained within the Units or the “Limited Common Areas” (i.e. the

patios), was delegated exclusively by the Developers to the Association.

On June 16, 2008, the Association, in response to continued confusion over

the parking situation at the Development, devised and assigned a parking plan, which

was adopted at the Association’s annual meeting of the homeowners. Thus, as of

June 17, 2008, the 2008 Parking Area Map became a Rule of the Association for the

regulation and operation of the Property, which was binding on all unit owners. At

the June 23, 2009, annual meeting of the Association, the membership unanimously

voted to approve Rule 16, in order to enforce and protect the parking space

assignments set forth in the 2008 Parking Area Map which stated, “No vehicles shall

be parked in the Association premises in such a manner as to block any member

from accessing their parking spot or to block their ingress from their parking spot.

Any vehicle parked in violation of this rule may be towed immediately.” 2 Rule 16

was also ratified by the Association membership at its annual meeting in 2010.

2 After some confusion by the trial court that resulted in the denial of the original summary judgment filed by the Association, a special meeting was held in 2016, where the Association confirmed that the Parking Rules had been passed by the membership of the Association in 2008 and 2009. The Association also ratified both Rules, re-passed both Rules, and amended the 2008 Minutes to correct the omission of the vote and passage of the current parking plan as a Rule at the 2008 meeting of the Association.

4 The 2008 Parking Rules

On November 2, 2012, Mr. Shaw purchased Unit 555 of the Development

via a “CASH SALE WITHOUT WARRANTY” from the Deutsche Bank, National

Trust Company located in Coppell, Texas. The property description lists “Unit 3

and Parcels 3-A & 3-B” as purportedly “described on that certain plat of survey

prepared by R. Douglas McGee & Associates, Ltd., last revised January 7, 1983

and recorded under Entry No. 83-862 of the records of Lafayette Parish,

Louisiana.”

However, the plat referenced in Mr. Shaw’s document only shows Unit 3 and

makes no reference to Parcels 3-A & 3-B. Further, the property was sold “as is”

with no warranties and relieved the seller for all claims that could arise under

Louisiana’s redhibition articles, found in La.Civ.Code arts. 2520, et seq.

Additionally, Mr. Shaw’s cash sale document states, “Seller makes no

representations or warranties, of any kind or nature whatsoever, whether expressed

or implied by law, or otherwise, concerning the condition of the title of the property.”

At the time Mr. Shaw purchased Unit 3, known as Unit 555, the 2008 Parking

Rules had been in effect for over four years. Under the terms of the 2008 Parking

Rules, Ms. Tressie Cox, who owned Unit 555 in 2008, was assigned two parking

spaces. The first was in the common area immediately adjacent to her unit. The

second parking space was also in the common area, but across an internal

Association driveway from Unit 555 where several other units’ second parking

spaces are located.

As previously indicated, some of the units have internal garage parking spaces,

which are considered part of the owners’ Unit. The 2008 Parking Plan provided

each unit owner without an internal garage, such as Ms. Cox and Mr. Shaw, one

5 parking space located near his unit, and one parking space in another common area

of the Development. Those owners with an internal garage were also assigned one

parking space near their Unit.

This was the case with Unit 553, also known as Unit 4, owned by Ms. Susan

Theall. Ms. Theall was assigned two spaces under the 2008 Parking Plan. The first

was the internal garage space of Unit 553, and the second was in the common area

between Unit 553 and Unit 555. It is this parking space that is the subject of this

lawsuit. When the Association assigned the parking space to Unit 553 in 2008, it

required Ms. Theall to replace the cover to the awning over that space, which she

attests to in her affidavit that was submitted in support of the Association’s re-urged

motion for summary judgment.

Mr. Shaw began parking in the parking space assigned to Ms. Theall and

demanded that she relinquish the parking space to him. Ms. Theall refused, citing

the 2008 Parking Rules, which provided that each resident should have one parking

space located in the common area that was near their unit. This dispute ultimately

resulted in Mr. Shaw filing suit on March 3, 2016, for a declaratory judgment

concerning the parking space, followed by a reconventional demand by the

Association for an injunction prohibiting Mr. Shaw from parking in the space in

violation of the Association’s Rules.

In the Fall of 2016, Mr. Shaw filed a motion for partial summary judgment

seeking to prevent the Association from assigning and reassigning parking spaces in

the common area of the Development. In response, the Association filed a

competing motion for summary judgment seeking to deny Mr. Shaw’s claims based

on the Association’s authority to assign or reassign parking spaces in the common

area of the Development, to deny Mr. Shaw any costs associated with his alleged

6 improvements to the common area, and to permanently enjoin him from violating

the Association’s Parking Rules.

After hearing, the trial court denied both motions for summary judgment

because of competing affidavits and possible confusion over the formalities required

for the Association to properly vote on and adopt Rules, including the 2008 Parking

Area Rule.

In the Fall of 2017, the Association once again re-urged its motion for

summary judgment seeking the same relief from the trial court. Prior to the filing of

the Association’s motion for summary judgment, Mr. Shaw obtained new counsel

who filed a supplemental petition. In the supplemental petition he alleged that based

on his chain of title and other documents, he had obtained a servitude over the

parking space at issue.

The trial court once again heard oral argument by counsel for the parties3 and

after a review of the briefs and authority cited, ruled in favor of the Association. In

its October 17, 2017 judgment, the trial court granted the Association’s re-urged

motion for summary judgment, thereby dismissing all claims made by Mr. Shaw

against the Association with prejudice and assessing Mr. Shaw with all costs. The

trial court also granted the Association’s reconventional demand for an injunction

that permanently enjoined Mr. Shaw from violating the 2008 Parking Rules adopted

by the Association. Mr. Shaw now timely appeals the trial court’s judgment of

October 17, 2017.

3 The trial court denied Mr. Shaw’s motion to include in the record of the Association’s re- urged motion for summary judgment the briefing and documents submitted by Mr. Shaw in support of his first motion for partial summary judgment. Counsel for Mr. Shaw did not formally object to the trial court’s ruling.

7 ASSIGNMENT OF ERROR

Mr. Shaw assigns the following error on appeal:

1. The Trial Court erred by finding no genuine issue of material fact and granting the motion for summary judgment in favor of the Association, thereby dismissing the claims of [Mr.] Shaw with prejudice and granting injunctive relief requested by the Association.

LAW AND DISCUSSION

Standard of Review

An appellate court reviews a trial court’s granting of a motion for summary

judgment de novo. Duncan v. U.S.A.A. Insurance Company, 06-363 (La. 11/29/06),

959 So.2d 544. This standard of review requires the appellate court to use the same

criteria as the trial court in determining if summary judgment is appropriate, which

is whether there is a genuine issue of material fact and whether the mover is entitled

to judgment as a matter of law. Id.

“A fact is ‘material’ when its existence or nonexistence may be essential to

[the] plaintiff’s cause of action.” Smith v. Our Lady of the Lake Hosp. Inc., 93-2512,

p. 27 (La. 7/5/94), 639 So.2d 730, 751. “A genuine issue of material fact is one as

to which reasonable persons could disagree; if reasonable persons could only reach

one conclusion, there is no need for trial on that issue and summary judgment is

appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12), 94 So.3d

750, 755.

“[A] motion for 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.Code

Civ.P. art. 966(A)(3). As provided in La.Code Civ.P. art. 966(D)(1):

[I]f the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s

8 burden on the motion 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. The burden is on 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.

Authority of the Association

The trial court did not issue written reasons but stated at the end of the hearing

on the Association’s re-urged motion for summary judgment, “The Court has read

the briefs and the authority cited within the briefs. The Court finds that there is no

genuine issue of material fact.” We agree.

The documentation submitted by the Association shows that the Association

was granted the authority to provide the Rules and Regulations necessary to govern

the Development by the Developers. It is undisputed that the 2008 Parking Plan was

in force and effect when Mr. Shaw purchased Unit 555 in 2012. Therefore, under

the terms of the Declaration recorded in 1983 and amended in 1996, he was bound

to abide by the 2008 Parking Rules, instituted some four years prior to his purchase

of Unit 555.

Mr. Shaw argues that his “Cash Sale Without Warranty” somehow creates a

servitude over the parking place at issue. It is undisputed that the referenced plat,

last revised January 7, 1983, and recorded under Entry No. 83-862 of the records of

Lafayette Parish, Louisiana, shows only Unit 3 and makes no reference to Parcels 3-

A & 3-B, one of which Mr. Shaw allegedly claims is the disputed parking space at

issue. No mention of any parking spaces is made in the Legend of the plat, which

clearly defines as common area all areas of the Development not designated as units

or patios. As cited in the Extract of Resolution of Leblanc-Mancini Investments,

Inc., the Developers delegated all authority over the common area to the Association,

9 which exercised its authority by creating the 2008 Parking Rules, a Rule enforcing

the assigned parking spaces, and consequences for violating same.

As previously stated, Mr. Shaw’s cash sale document states, “Seller[s] makes

no representations or warranties, of any kind or nature whatsoever, whether

expressed or implied by law, or otherwise, concerning the condition of the title of

the property.” When Mr. Shaw purchased the property in 2012 he should have been

aware that he was bound by the Rules made by the Association Board, including the

2008 parking rules. As discussed in the Declaration, the Rules clearly provide “Any

purchaser of any of the Units shall be deemed to have assented to such designation

and management, and ratified and approved same.” Further, the Rules provide,

“[E]very Owner, his guests, members of his family, servants, employees, invites,

lessees and licensees shall strictly adhere to the Rules.”

Therefore, we find that the trial court correctly found that no genuine issue

of material fact existed as to the authority of the Association to enforce the 2008

Parking Rules and to enjoin Mr. Shaw from violating the Association’s Rules by

parking in a parking space assigned to Unit 553 and not to his unit, Unit 555.

CONCLUSION

For the foregoing reasons, the October 17, 2017 judgment of the trial court

granting the motion for summary judgment of the Live Oaks Towne Homes

Association, Inc., dismissing all claims made by Deshawn Damien Shaw with

prejudice and at his cost, and permanently enjoining Deshawn Damien Shaw from

violating the Parking Rules adopted by the Live Oaks Towne Homes Association is

affirmed in its entirety. All costs of this appeal are assessed to Deshawn Damien

Shaw.

AFFIRMED.

10 This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal. Rule 2-16.3.