Stella Maris Condominium Association, Inc. v. David Trautenberg

STELLA MARIS * NO. 2022-CA-0696
CONDOMINIUM
ASSOCIATION, INC. *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
DAVID TRAUTENBERG *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-09686, DIVISION “D”
Honorable Nakisha Ervin-Knott, Judge
******
Judge Roland L. Belsome
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge
Rachael D. Johnson)

Elizabeth A. Roussel
Erica P. Sensenbrenner
ADAMS AND REESE LLP
701 Poydras Street
Suite 4500
New Orleans, LA 70139

COUNSEL FOR PLAINTIFF/APPELLEE

Justin E. Alsterberg
JJC Law, LLC
3914 Canal Street
New Orleans, LA 70119

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
APRIL 12, 2023

RLB This case involves a dispute between a condominium unit owner and the
DLD
RDJ condominium association. Appellant David Trautenberg appeals from the trial

court’s June 30, 2022, judgment, which granted Appellee Stella Maris

Condominium Association, Inc.’s motion for summary judgment and denied in

part Trautenberg’s motion for partial summary judgment. The effect of the

judgment was to dismiss both parties’ claims against each other. For the reasons

that follow, this Court affirms.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Stella Maris Condominiums (“the Condominiums”) are situated in the

New Orleans French Quarter. In 1995, the Stella Maris Condominium Property

Regime was created through a Declaration executed and recorded by the owner

(“the Declaration”). Additionally, the Stella Maris Condominium Association, Inc.

(“the Association”) was incorporated as a Louisiana non-profit corporation which,

through its board of directors, is the governing body of the Condominiums.

1

In 2018, Trautenberg purchased Unit 7 of the Condominiums, a three-story

unit. The ground floor of Unit 7 also opens onto a private patio situated in the

interior courtyard of the Condominium, accessible only through Unit 7 and

partitioned from the courtyard by a wooden fence. Unit 7’s second floor has two

sets of French doors set into its exterior wall, overlooking the Condominium’s

courtyard. This feature has been described by the parties as a “Juliet balcony”.1

The third floor of Unit 7 contains its master bedroom and bathroom, and also

provides access to a private rooftop deck accessible only by the owner of Unit 7.

Trautenberg performed substantial renovations to Unit 7 before moving in.

During the course of those renovations, Trautenberg discovered damage to the wall

separating Unit 7 from the courtyard of the building, which the Association spent

approximately $35,000 to repair. Trautenberg also replaced the second floor

French doors (forming part of the Juliet balcony) with “marine grade” doors, the

cost for which was reimbursed by the Association. Finally, Trautenberg also

requested the Association’s permission to replace the ground-floor doors providing

access to his private patio, and to install a retractable awning above the patio. The

Association acceded to Trautenberg’s first request, but denied him permission to

install a retractable awning.

In early 2019, the Association decided to replace an awning which spanned

the exterior wall separating Units 7 and 8 from the courtyard. The Association took

1 A “Juliet balcony” is actually no balcony at all, but rather refers to an elevated French door

which is inset with a protective barrier (typically to waist-height), allowing the occupant to open
the French door without fear of accidentally falling to the ground below. Thus, a Juliet balcony
by definition does not include what is traditionally thought of as a “balcony” (an area that can be
physically entered and walked upon).

2

this action in response to water intrusion and damage to that wall, which the

Association had paid to repair, including: the $35,000 spent during Trautenberg’s

renovations to Unit 7, the replacement of Trautenberg’s second-story French doors,

and $20,000 spent to repair the exterior wall of Unit 8 (which occurred prior to

Trautenberg’s arrival). Notably, the expense for the replacement awning was not

included in the Association’s annual budget, and was not put to a vote of the unit

owners.

Over the objections of Trautenberg, the replacement awning was erected on

or around February 14, 2020. The replacement awning was larger than the awning

previously in place. Trautenberg alleges that, as a result, his patio and second-story

French doors (the Juliet balcony) receive less sunlight. To remedy this offense and

“reclaim his sunlight”, Trautenberg decided that he would like to construct a true

balcony (one that could be entered through his second-story French doors and

walked upon, see footnote 1 above), to be attached to the exterior wall of his unit

and over-hanging his ground-floor private patio and a portion of the Condominium

courtyard.

Trautenberg began working with an architect to design the new balcony, and

on April 27, 2020, submitted his plans, along with a request for permission, to the

Association’s board of directors. On May 1, 2020, the board unanimously denied

Trautenberg’s request. In the Association’s letter to Trautenberg informing him of

the decision, the Association explained that the reasons for its denial were sound

and privacy concerns. Specifically, the Association informed Trautenberg that

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unlike the Condominium’s private patios, which are enclosed by a wooden fence,

Trautenberg’s proposed balcony would not include a sound barrier between it and

the Condominium’s courtyard and other units. Second, the Association explained

that the proposed balcony would disrupt the privacy of other units and encroach

onto the Condominium’s common area (the interior courtyard). Finally, the

Association noted that Unit 7 already enjoyed the use of a private rooftop terrace.

In response to the Association’s denial, Trautenberg redesigned his proposed

balcony so that it would overhang only his own private ground-floor patio.

However, rather than submitting this new design to the Association, Trautenberg

submitted an application to the Vieux Carré Commission (“VCC”) for a permit

regarding his proposed balcony, submitted on May 18, 2020. The VCC’s

Architectural Committee set the matter for a public meeting to be held June 9,

2020.

The day before the Architectural Committee’s meeting, the Association’s

president, David Bryan, learned of Trautenberg’s pending permit application and

informed the rest of the Association’s board of directors. Later that day Bryan sent

a letter to the VCC on behalf of the Association, informing it that Trautenberg did

not have the Association’s approval to build the balcony and requesting the matter

be removed from the VCC’s meeting agenda. The VCC’s Senior Building Plans

Examiner, Nicholas Albrecht, responded that the permit would be removed from

the agenda and would only be considered in the future if Trautenberg could

demonstrate the Association’s approval.

4

The following day, June 9, 2020, Trautenberg corresponded with the

Director of the VCC, Bryan Block, complaining that the Association lacked legal

standing to block his permit application process as they were not party to it, and

asking the VCC to disregard future communications from the Association. After

consulting with the City’s legal department, Director Block advised Trautenberg

that “[i]f there are issues between you and your HOA, this will be a civil matter for

you to work out, but that will not include the VCC.” Mr. Block further informed

Trautenberg that, in light of the above, “the VCC will proceed with permitting.”

On June 12, 2020, the Association through counsel sent Trautenberg a letter

reiterating the Association’s denial of permission for him to construct the balcony.

In the letter, the Association noted that Trautenberg’s proposed balcony “does not

fall within the boundaries of Unit 7” and that Trautenberg’s patio area and Juliet

balcony are “limited common elements … a subset of common elements, which

cannot be altered without prior written approval of the Board.”

Convinced, however, that he did not need the Association’s approval, and

having been told by Director Block that the VCC would stay out of the dispute, on

October 24, 2020 Trautenberg renewed his attempts to obtain a permit for the

balcony. Despite its June 8, 2020, assurances to the Association, the VCC

approved Trautenberg’s balcony on November 10, 2020. The next day, a member

of the Association’s board of directors, Jessie Paige, emailed Meghan Murphy, the

Building Plans Examiner for the City’s Department of Safety and Permits. In his

email, Paige informed the Department that Trautenberg did not have the

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Association’s approval for the balcony and inquired how the Association should

proceed to have the application made void. Murphy replied that she “added a red

flag to the permit for now and forwarded this along to our legal team for their

advice.”

On November 13, 2020, Trautenberg sent a letter to the Association

informing it that “[u]pon issuance of a City-issued building permit, a fabricated

balcony will be erected.” The letter goes on to cite the VCC permit identification

number, and notified the Association that the permit had been “approved by all the

necessary and sufficient parties, the Architectural Commission, Vieux Carre

Commission, Building and Safety and Fire Marshall.”

That same day, the Association filed suit against Trautenberg, petitioning the

court for a temporary restraining order, preliminary injunctive relief, and

unspecified damages for breach of contract. Specifically, the Association sought to

“enjoin[] the defendant from permanently altering the limited common elements.”

The temporary restraining order and request for a preliminary injunction were later

dismissed without prejudice on Trautenberg’s dilatory exception.

On January 15, 2021, Trautenberg filed an Answer to the suit, including

reconventional demands against the Association for (1) declaratory relief that he

“has the right to modify the balcony structure without Association approval”; (2)

damages resulting from the Association’s breach of contract regarding the

installation of the light-blocking awning; (3) damages resulting from the

Association’s negligence in installing the light-blocking awning; (4) damages

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resulting from the Association’s breach of fiduciary duties; and (5) damages

resulting from the Association’s malicious prosecution in instituting the suit.2

After a period of discovery spanning more than a year, the parties submitted

opposing motions for summary judgment. The Association’s motion was filed on

February 4, 2022, and sought to dismiss all of Trautenberg’s reconventional

demands. On April 28, 2022, Trautenberg submitted a motion for partial summary

judgment, seeking (1) dismissal of the Association’s sole remaining claim for

breach of contract damages; (2) a declaratory judgment that he is entitled to modify

his balcony without the Association’s approval; and (3) a judgment as to liability

only regarding his claims against the Association for breach of contract,

negligence, breach of fiduciary duties, and malicious prosecution.

On June 24, 2022, the motions were heard by the trial court, Judge Ervin-

Knott presiding. Judge Ervin-Knott granted the relief sought by the Association in

toto, dismissing all of Trautenberg’s claims against the Association.3 By the same

token, Judge Ervin-Knott denied Trautenberg’s request for summary judgment

regarding same; however, Judge Ervin-Knott granted Trautenberg’s request for

summary judgment dismissing the Association’s sole remaining claim for breach

of contract damages, which was unopposed by the Association. The trial court’s

2 Additionally, Trautenberg’s Answer asserted a third-party demand against Jessie Paige, a

member of the Association’s board of directors, for tortious interference with contract and
intentional/fraudulent misrepresentation.
3 The Association’s motion for summary judgment was joined by Jesse Paige, also seeking

dismissal of the claims asserted against him. See footnote 2. However, in his Original Brief to
this Court, Trautenberg did not address his claims against Paige, or assign as an error the trial
court’s dismissal of those claims. Therefore, they are deemed abandoned pursuant to Rule 2-
12.4(B)(4), Uniform Rules of Louisiana Courts of Appeal.

7

judgment was rendered in writing on June 30, 2022, and this timely appeal

followed.

DISCUSSION
Standard of Review

Appellate courts review the grant or denial of a motion for summary

judgment de novo, employing the same criteria that govern a trial court’s

determination of whether summary judgment is appropriate. Maddox v. Howard

Hughes Corp., 2019-0135, p. 4 (La. App. 4 Cir. 4/17/19), 268 So.3d 333, 337

(citation omitted).

Louisiana’s summary judgment procedure has evolved from disfavored to

favored, and shall be construed to “secure the just, speedy, and inexpensive

determination of every action, except those disallowed by Article 969.” La. C.C.P.

art. 966(A)(2). The standard for granting a motion for summary judgment is set

forth in La. C.C.P. art. 966(A)(3), which provides in pertinent part that “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.”

As this Court recognized in Bercy v. 337 Brooklyn, LLC, 2020-0583, pp. 3-4

(La. App. 4 Cir. 3/24/21), 315 So.3d 342, 345:

La. C.C.P. art. 966(D)(1) provides that on a motion for
summary judgment, although the burden of proof rests with the
mover, if the mover will not bear the burden of proof at trial, the
mover must only point out the absence of factual support for one or
more elements essential to the adverse party’s claim. The burden then
shifts to the adverse party who has the burden to produce factual
support sufficient to establish the existence of a genuine issue of

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material fact or that the mover is not entitled to judgment as a matter
of law.

A genuine issue of material fact is one as to which reasonable persons could

disagree. “A fact is material when its existence or nonexistence may be essential to

the plaintiffs [sic] cause of action under the applicable theory of recovery; a fact is

material if it potentially insures or precludes recovery, affects a litigant’s ultimate

success, or determines the outcome of the legal dispute.” Chapital v. Harry

Kelleher & Co., Inc., 2013-1606, p. 5 (La. App. 4 Cir. 6/4/14), 144 So.3d 75, 81.

Whether a fact is material is a determination that must be made based on the

applicable substantive law. Roadrunner Transp. Sys. v. Brown, 2017-0040, p. 7

(La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith v. Our Lady of the

Lake Hosp., Inc., 1993-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751). However, “if

on the state of the evidence, reasonable persons could reach only one conclusion,

there is no need for trial on that issue, and summary judgment is appropriate.”

Smith, 1993-2512, p. 27, 639 So.2d at 751. Additionally, “summary judgment is

appropriate when all the relevant facts are marshalled before the court, the

marshalled facts are undisputed, and the only issue is the ultimate conclusion to be

drawn from those facts.” Harmonia, LLC v. Felicity Prop. Co., LLC, 2020-0253, p.

9 (La. App. 4 Cir. 11/25/20), 311 So.3d 521, 528 (quoting Hogg v. Chevron USA,

Inc., 2009-2632, 09-2635, p. 10 (La. 7/6/10), 45 So.3d 991, 999).

Dismissal of Trautenberg’s Claim for Declaratory Judgment

In his first assignment of error, Trautenberg contends that the trial court

erred in dismissing his claim for a Declaratory Judgment holding that, per the

9

Condominiums’ Declaration, he does not need Association approval to construct

his proposed balcony.

When a court interprets the rights or obligations of condominium owners

under a condominium declaration, the rules of contract interpretation apply.

Cusimano v. Port Esplanade Condo. Ass’n, Inc., 2010-0477, p. 8 (La. App. 4 Cir.

1/12/11), 55 So.3d 931, 936. “Interpretation of a contract is the determination of

the common intent of the parties.” La. C.C. art. 2045. “When the words of a

contract are clear and explicit and lead to no absurd consequences, no further

interpretation may be made in search of the parties’ intent.” La. C.C. art. 2046.

In the case sub judice, there is no dispute that the contract forming the

substantive law between the parties is the Declaration. The Declaration delineates

several categories of Condominium property. Section I (“Definitions”) provides, in

relevant part:

Common Elements. All that part of Condominium Property (movable
or immovable property) which is not within or a part of the individual
Units, as such Units are shown on the attached Condominium Plan or
described herein … including the Building and all of the elements or
component parts thereof desirably or rationally of common use or
necessary to the existence, upkeep and safety of the condominium
regime established by this Declaration.

*******

Limited Common Elements. All Common Elements serving
exclusively a single Unit or one or more adjoining Units as an
inseparable appurtenance thereto, the enjoyment, benefit, or use of
which is reserved to the lawful Occupants of such Unit or Units either
in this Declaration, on the Condominium or by the Board. Limited
Common Elements shall include, but shall not be limited to: balcony,
patio area, parking areas or terrace areas accessible only from a Unit.

*******

Unit. Space occupying all or part of a floor or floors in the Building,
which space is not owned in common with the Unit Owners of other
Units. Each Unit is designated as shown on the Condominium Plan.

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Provided, however, that no structural components of the Building …
shall be deemed to be part of said Unit.

Whether a piece of Condominium property is considered a Common Element, a

Limited Common Element, or a Unit affects a Unit owner’s rights and obligations

in the property in several ways. Most relevant to this dispute, Section XIII of the

Declaration (“Alterations, Additions, or Improvements”) limits an owner’s rights

to improve Condominium property by providing in relevant part:

[N]o alteration of any Common Elements, or any additions or
improvements thereto, shall be made by any Unit Owner without the
prior written approval of the Board … [However,] [a]ny Unit Owner
may make alterations, additions or improvements within the Unit of
the Unit Owner without the prior written approval of the Board.

Both parties argue that the terms of the Declaration unambiguously mandate

a ruling in their favor regarding Trautenberg’s ability to construct his balcony

without the Association’s approval. The Association argues that because

Trautenberg’s balcony project would affect (and thus alter) the external wall of his

unit,4 and because the external wall constitutes a Common Element (as a

component part of the Building),5 that Section XIII of the Declaration requires him

to obtain the written approval of the Association. This Court agrees.

4 Trautenberg argues on appeal that the trial court’s conclusion that the proposed balcony would

affect the exterior wall of the building assumes facts not in evidence. This Court finds no merit to
that argument. In Trautenberg’s brief to this Court, he himself states that the balcony was
designed “to attach to and enhance the rear of his unit.” The Court also notes that Trautenberg
did not claim that the attachment of his proposed balcony to the wall of the building is a disputed
material fact precluding summary judgment.
5 Trautenberg also argues on appeal that the Association has judicially admitted that the exterior

wall of his unit is a Limited Common Element. However, even putting aside the plain language
of the Declaration defining the building and its walls as Common Elements, this Court finds no
merit to Trautenberg’s argument. Trautenberg points to the Association’s Petition for Temporary
Restraining Order, Injunctive Relief and Damages, which stated that “per the Condominium
Declaration, the exterior of [Trautenberg’s] Unit is a ‘Limited Common Element’.” However,
this Court does not find this statement to constitute an admission that the exterior wall of
Trautenberg’s unit is a Limited Common Element, but rather referred to his private patio area
and/or existing Juliet balcony. This conclusion is supported by the Association’s Response to
Trautenberg’s Statement of Uncontested Facts in Support of Motion for Summary Judgment,
which clarified the above-quoted language from the Association’s petition: “[t]he Association

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Trautenberg argues that his balcony project merely “expands” his existing

Juliet “balcony”, that the balcony would overhang only his own ground-floor

private patio, and that balconies and patios are specifically listed in the Declaration

as Limited Common Elements. Trautenberg argues that Section XIII does not

require Association approval for alterations, additions, or improvements to Limited

Common Elements. In the alternative, Trautenberg argues that the Declaration is

ambiguous with regards to improvements to Limited Common Elements, and

therefore must be interpreted against its drafter, citing Civil Code Article 2056

(“[i]n case of doubt that cannot be otherwise resolved, a provision in a contract

must be interpreted against the party who furnished its text.”).

As previously discussed, the Declaration clearly provides that alterations,

additions, or improvements to Common Elements require Association approval,

while those “within the unit” do not. However, Section XIII is silent regarding an

owner’s rights to make improvements to Limited Common Elements.

Notwithstanding the Declaration’s arguably ambiguous silence on this issue, we

find that because Section I as well as Section III clearly provide that Limited

Common Elements are subsets of Common Elements,6 Association approval is

likewise required for improvements thereto. “Each provision in a contract must be

interpreted in light of the other provisions so that each is given the meaning

suggested by the contract as a whole.” La. C.C. art. 2050.

admits that Trautenberg’s existing Juliet balcony on his second floor is a Limited Common
Element. The Association also admits that the exterior area or patio to Trautenberg’s Unit is a
Limited Common Element. The Association did not state that the shared exterior wall of
Trautenberg’s unit is a Limited Common Element.” (Emphasis in original).
6 As quoted above, Section I defines Limited Common Elements as “[a]ll Common Elements

serving exclusively a single Unit…” Similarly, Section III defines Limited Common Elements as
“[t]hose areas of the Common Elements consisting of…” (Emphasis added).

12

Even assuming, arguendo, that Trautenberg’s balcony would affect only

Limited Common Elements and that the Declaration is ambiguous as to

improvements affecting only Limited Common Elements, such a determination

would not mandate the result advocated by Trautenberg. First, although not

squarely on-point, Section XIV of the Declaration provides that “[n]o Unit Owner

shall enclose or modify the structure of any Limited Common Elements or

decorate the portions of such Limited Common Elements visible from outside such

Unit in any manner which detracts from the appearance of the Building”, as

exclusively determined by the Association’s board of directors. Thus, the

Declaration clearly limits an owner’s rights to make improvements, even where the

improvement affects only Limited Common Elements.

Second, “[w]hen the parties made no provision for a particular situation, it

must be assumed that they intended to bind themselves not only to the express

provisions of the contract, but also to whatever the law, equity, or usage regards as

implied in a contract of that kind or necessary for the contract to achieve its

purpose.” La. C.C. art. 2054. The Louisiana Condominium Act, recognized by

both parties as applicable, provides that a unit owner “may not change the

appearance of the common elements, or the exterior appearance of a unit or any

portion of the condominium, without permission of the association.” La. R.S.

9:1122.113(2). Here, there can be no doubt that Trautenberg’s proposed balcony

would change the exterior appearance of his unit as well as that of the Building, a

Common Element.

Finally, this Court finds no merit in Trautenberg’s argument that an

ambiguous contract must be interpreted against its drafter pursuant to Civil Code

Article 2056, as that Article limits itself to “cases of doubt that cannot be otherwise

13

resolved,” which, in light of the foregoing, is not the case here. For these reasons,

this Court finds that the trial court did not err in dismissing Trautenberg’s request

for Declaratory Judgment that he did not require the Association’s approval to

construct his balcony.

Dismissal of Trautenberg’s Damages Claims

In his second assignment of error, Trautenberg contends that the trial court

erred in dismissing his actions for breach of contract and for negligence regarding

the Association’s action in replacing the awning on the exterior wall of his unit.7

Breach of Contract

Regarding his breach of contract claim, Trautenberg argues that the

Declaration required the Association to obtain the approval of two-thirds of the

Condominiums’ owners for construction of the awning. Trautenberg relies on

Section 8 of the Association’s Bylaws, which provides that:

Except for expenditures and contracts specifically authorized by the
Declaration and By-Laws, the Board shall not approve any
expenditure not provided for in the Annual Budget in excess of One
Thousand and No/100 ($1,000) Dollars, unless required for
emergency repair, protection or operation of the Common Elements or
Limited Common Elements, nor any contract for more than one (1)
year without prior approval of Owners entitled to two-thirds (2/3) of
the Votes.8

The Association does not dispute that expenses for the replacement awning

exceeded one thousand dollars, nor that it did not obtain the prior approval of two-

thirds of the Condominiums’ owners. Instead, the Association argues that its

7 In his Original Brief to this Court, Trautenberg did not address his claim for breach of fiduciary

duties by the Association, or assign as error the trial court’s dismissal of that claim. Therefore,
that claim is deemed abandoned pursuant to Rule 2-12.4(B)(4), Uniform Rules of Louisiana
Courts of Appeal.
8 Identical language appears in Section VII.7 of the Declaration.

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actions did not breach the Bylaws or Declaration because they were necessary for

the protection of the building, one of the specifically identified exceptions to the

requirement of owners’ approval. Specifically, the Association cites the water

damage to the exterior wall of units 7 and 8, which the Association had previously

spent at least $55,000 to repair, as discussed above.

In response, Trautenberg argues that whether or not there was an

“emergency” necessitating the construction of the awning is a genuine dispute of

material fact precluding summary judgment. However, as previously noted,

“summary judgment is appropriate when all the relevant facts are marshalled

before the court, the marshalled facts are undisputed, and the only issue is the

ultimate conclusion to be drawn from those facts.” Harmonia, 2020-0253, p. 9, 311

So.3d at 528 (quoting Hogg, 2009-2632, 09-2635, p. 10, 45 So.3d at 999). Thus,

what constitutes an “emergency” under the Declaration is a legal question

appropriate for disposition by summary judgment when, as here, all of the relevant

facts are undisputed.

Negligence

Regarding his negligence claim, Trautenberg argues that the Association is

liable for construction of the awning under either La. R.S. 1123.107 (the Louisiana

Condominium Act) or La. C.C. Art. 2317.1 (premises liability).

La. R.S. 9:1123.107, part of the Louisiana Condominium Act, provides in

relevant part that “the association is responsible for maintenance, repair, and

replacement of the common elements.” The trial court held that the Association

was not liable to Trautenberg because in constructing the awning it was, in fact,

fulfilling its duty under La. R.S. 9:1123.107: to maintain the Condominium. In

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arguing that the Association can be negligently liable to him under that statute,

Trautenberg cites FIE, LLC v. New Jax Condo Ass’n, Inc., 2016-0843 (La. App. 4

Cir. 2/21/18), 241 So.3d 372. In New Jax, this Court found that the condominium

association could be liable under La. R.S. 9:1123.107 for its negligent repair of the

condominium’s roof because the repair was faulty and took years to remedy, with

the result that one of the units was rendered uninhabitable. Id.

This Court recognizes that just because an entity has a duty does not mean it

cannot breach that duty by carrying it out in a negligent manner. However, we find

New Jax distinguishable from the case sub judice. This case does not involve the

type of negligent repair at issue in New Jax, which proximately caused the

plaintiff’s injuries; rather, Trautenberg argues that the Association was negligent

because it (1) failed to consider the harm the awning posed to his unit, (2) failed to

discuss the awning with unit owners, (3) used association funds to construct an

awning affecting only one unit and failed to reallocate assessments, and (4) failed

to obtain permits required for construction of the awning. However, Trautenberg

failed to show that the Association did not consider the harm to his unit. In fact, the

record reflects that it was consideration of the harm to both Trautenberg’s unit and

Unit 8 that motivated the Association to erect the awning. Regarding Trautenberg’s

second ground, as previously discussed, the Association was under no duty to

notify or seek the approval of the owners because the awning was necessary to

protection of the building. Trautenberg’s third ground is self-defeating and

contradictory, as the awning clearly affects his unit and was constructed to protect

the building, a Common Element shared by the owners indivision. Finally, while

the Association’s construction of the awning without a permit is questionable, this

Court finds that such an omission was not within the scope of the duty owed by the

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Association to Trautenberg, as the permit requirement was not “intended to

protect this plaintiff from this type of harm arising in this manner.” Roberts v.

Benoit, 605 So.2d 1032, 1044-45 (La. 1991) (emphasis in original, quotations and

citations omitted).

Trautenberg argues that even if the Association cannot be found liable under

La. R.S. 9:1123.107 that “[t]his is not the end of the inquiry”, and that the

Association can also be liable under La. C.C. Art. 2317.1, colloquially known as

“premises liability.” Civil Code Article 2317.1 provides in part that “[t]he owner or

custodian of a thing is answerable for damage occasioned by its ruin, vice, or

defect.” However, Trautenberg fails to identify a ruin, vice, or defect in the

construction of the awning. “A defect, within the meaning of Article 2317.1, is a

condition or imperfection in an object that causes it to present an unreasonable risk

of injury to persons exercising ordinary care.” Bercy v. 337 Brooklyn, LLC, 2020-

0583 (La. App. 4 Cir. 3/24/21), 315 So.3d 342, 346 (internal quotation marks and

citations omitted). Thus, this court finds no error in the trial court’s judgment

dismissing Trautenberg’s negligence claims.

Dismissal of Trautenberg’s Malicious Prosecution Claim

In Trautenberg’s third and final assignment of error, he argues that the trial

court erred in dismissing his claim for malicious prosecution. Essentially,

Trautenberg argues that the Association’s action in filing suit for a protective order

and preliminary injunctive relief were unwarranted, because the Association had

already been informed by the City’s Department of Safety and Permits that a “red

flag” had been added to Trautenberg’s permit application. Additionally, Mr.

Trautenberg argues that the Association’s claim for breach of contract was

baseless, as the Association was unable to show any damages.

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[T]he elements of the tort of malicious prosecution are: (1) the
commencement or continuance of an original criminal or civil judicial
proceeding; (2) its legal causation by the present defendant in the
original proceeding; (3) its bona fide termination in favor of the
present plaintiff; (4) the absence of probable cause for such
proceeding; (5) the presence of malice therein; and (6) damage
conforming to legal standards resulting to plaintiff.

Lemoine v. Wolfe, 2014-1546, p. 8 (La. 3/17/15), 168 So.3d 362, 367. Initially, this

Court will note that, while the Association may have been informed that

Trautenberg’s permit had been “red flagged”, this does not necessarily equate to a

lack of probable cause to seek an injunction, particularly given the City’s

inconsistent position on the matter and Trautenberg’s November 13, 2020, letter in

which he stated that his balcony had been “approved by all the necessary and

sufficient parties.”

However, determination of the Association’s probable cause is unnecessary

in this case, as a claim for malicious prosecution also requires a “bona fide

termination [of the defendant’s suit] in favor of the present plaintiff.” Id. While the

Association’s request for a temporary restraining order, and preliminary injunctive

relief were dismissed by the trial court, those dismissals resulted from

Trautenberg’s dilatory exception, and were without prejudice. The Supreme Court

has stated that a bona fide termination requires that “the underlying litigation … be

brought to a conclusion on the merits,” as opposed to “a procedural dismissal of

the charges without prejudice.” Lemoine v. Wolfe, 2014-1546, p. 16 (La. 3/17/15),

168 So.3d 362, 372 (emphasis added). Regarding the Association’s breach of

contract claim, that claim had not been dismissed at all at the time Trautenberg

asserted a claim for malicious prosecution, but rather occurred in the Judgment

here under review. Thus, we find no error in the trial court’s judgment dismissing

Trautenberg’s claim for malicious prosecution.

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CONCLUSION

In light of the foregoing, we find no error in the trial court’s June 30, 2022,

judgment, and accordingly it is hereby affirmed.

AFFIRMED

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