Head v. Gray

938 So. 2d 1084, 2006 WL 2422865
CourtLouisiana Court of Appeal
DecidedAugust 23, 2006
Docket41,290-CA
StatusPublished
Cited by4 cases

This text of 938 So. 2d 1084 (Head v. Gray) 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
Head v. Gray, 938 So. 2d 1084, 2006 WL 2422865 (La. Ct. App. 2006).

Opinion

938 So.2d 1084 (2006)

Raymond HEAD, Jr., et al., Plaintiffs-Appellees
v.
Adolphus Lee GRAY and Richard Mutter and Cindy Mutter, Defendants-Appellants.

No. 41,290-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 2006.

*1085 Davidson, Jones & Summers, by Allison A. Jones, Shreveport, for Appellants.

Smith & Jacobs, by Charles A. Smith, Edward C. Jacobs, Springhill, for Appellee.

Before WILLIAMS, GASKINS and CARAWAY, JJ.

CARAWAY, J.

Owners in a subdivision brought this action to enjoin the use of a manufactured home on a neighbor's lot based upon a recorded building restriction. The building restriction which was part of the general plan for the residential development was directed against temporary structures, including mobile homes. Defendants' home, which was designed in two sections for placement on a permanent foundation, was ordered to be removed from the subdivision by the trial court. Finding doubt as to the extent of the building restriction, we reverse.

Facts

Cypress Point Subdivision adjoins Cypress Bayou Reservoir in Bossier Parish. In July 1977, the Estate of W.B. Jacobs, Inc. ("Jacobs, Inc.") subdivided the land comprising the subdivision. As a part of this process, Jacobs, Inc. declared and recorded protective covenants and building restrictions (hereinafter "Covenants") governing the use of subdivision property. The disputed restriction, labeled "Temporary Structures" (Restriction # 8, infra), provides that no "mobile home" shall be placed or used on a subdivision lot.

Richard and Cinder Mutter now occupy Lot 8, Cypress Point Subdivision. The Mutters own a home manufactured by Franklin Homes, Inc. The Mutters' home was previously in another subdivision nearby for a period of time but was not secured on a foundation there and its roof was apparently never finished. On a date not specified in the record, the Mutters had the home moved to the Cypress Point lot. The structure's two sections were then completely assembled and attached to the foundation.

Thereafter, a group of Cypress Point lot owners brought this action for injunctive relief against the owner of Lot 8, Adolphus Lee Gray, and the Mutters claiming a violation of the Covenants by the Mutters' construction of their modular/mobile home on the lot. Plaintiffs asked the court to prohibit the defendants "from allowing the placement of said mobile home or manufactured home in said subdivision. . . ." Plaintiffs subsequently filed an amended petition recognizing that the Mutters had already placed and assembled the home on the site and seeking an injunction for its removal.

None of the parties testified at trial. However, Russell Foster[1] testified that his modular home was placed on a lot next to Lot 8 in August 2003. The structure was placed on the concrete foundation one section at a time by a crane and attached to the foundation and bolted together. Although he characterized the home as a *1086 permanent dwelling, he acknowledged it could be moved like any other permanent home. Foster also identified photos of various lots with outbuildings, sheds, metal garages, motor homes and other temporary structures which were allegedly out of compliance with the building restrictions.

Photographs showing the transport and assembly of the Mutters' home were also submitted into evidence. This home was comprised of rectangularly-shaped sections, approximately 75 feet long by 15 feet wide. The interior length of each module was exposed so the two sections could be fastened together on site to complete the unified structure. The sections were framed with wooden studs and rafters like a site-built dwelling and the pitch of the roof line produced some attic space. The home sections comply with the same building codes applicable to site-built homes.

After completion of construction, each module is put on a separate, wheeled chassis that permits transportation from the factory. This road chassis is removable and does not furnish any structural integrity to the completed unit. The assembled home is not equipped with wheels.

The foundation for the Mutters' home consisted of a concrete footing poured around the perimeter for the 75' x 30' home. Along the centerline of the foundation where the two sections are joined, a series of cement cinder block piers support the structure.

At the close of trial, the court concluded that the placement of the Mutters' home was prohibited by the Covenants and signed a judgment granting a permanent injunction against the placement of the home in the subdivision. It is from this judgment that defendants appeal.

Discussion

I.

Defendants first argue that the restrictions are invalid because the public records contain no evidence that Neilson S. Jacobs had the authority, by corporate resolution, to act on behalf of Jacobs, Inc. to establish the restrictions in 1977. Plaintiffs respond by citing the prescriptive protection against challenges to the lack of such recorded corporate acts provided in La. R.S. 9:5681, as follows:

A. (1) Any action to set aside a sale, transfer, lease, mortgage, encumbrance, or any other document by any legal entity or unincorporated association affecting any immovable property located in this state on the ground that the officer, agent, or other representative of the legal entity or unincorporated association signing the document was without authority to do so is prescribed by ten years, reckoning from the day the act of sale was recorded in the mortgage or conveyance records, or both as applicable, of the parish in which the immovable property is located. Nothing contained in this Section shall be construed to limit or to establish a prescriptive period as to any proceeding which may arise between the legal entity or unincorporated association and the person acting in a representative position.

There is no evidence in this case of any lawsuit successfully challenging the authority of Jacobs to act for the corporation. Such a suit could have in turn affected the rights of parties, such as plaintiffs, who acquired their property in reliance upon the recorded Covenants. With no successful challenge to the instrument having previously occurred, plaintiffs gain the protection of this ten-year prescription. Accordingly, the time for raising any challenge to Jacobs' authority to act for Jacobs, Inc. has expired. This claim attacking the force of the Covenants is without merit.

*1087 II.

Building restrictions are governed by the Louisiana Civil Code Articles 775, et seq. Building restrictions are incorporeal immovables and real rights likened to predial servitudes. They 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 terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. La. C.C. art. 782.

Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. La. C.C. art. 783. See generally Tri-State Sand & Gravel, L.L.C. v. Cox, 38,217 (La.App. 2d Cir.4/7/04), 871 So.2d 1253, writ denied, XXXX-XXXX (La.9/24/04), 882 So.2d 1144. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter. Id.

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Bluebook (online)
938 So. 2d 1084, 2006 WL 2422865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/head-v-gray-lactapp-2006.