Terence Cooper & Vanessa Cooper v. English Turn Property Owners Association, Inc.

TERENCE COOPER & * NO. 2022-CA-0748
VANESSA COOPER
*
VERSUS COURT OF APPEAL
*
ENGLISH TURN PROPERTY FOURTH CIRCUIT
OWNERS ASSOCIATION, INC. *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-09712, DIVISION “N-8”
Honorable Ethel Simms Julien, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Paula A. Brown, Judge Dale
N. Atkins)

Kyle Salvador Sclafani
Ryan Michael Scafidel
THE LAW OFFICE OF KYLE S. SCLAFANI
4130 Canal Street, Suite A
New Orleans, LA 70119

Jack Edward Morris
JACK E. MORRIS, ATTORNEY AT LAW, LLC
4051 Veterans Memorial Boulevard
Suite 208
Metairie, LA 70002

COUNSEL FOR PLAINTIFFS/APPELLANTS

Kim M. Boyle
Allen C. Miller, Sr.
James H. Gilbert
PHELPS DUNBAR LLP
365 Canal Street
Suite 2000
New Orleans, LA 70130-6534

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
April 25, 2023

TFL
This matter involves a dispute between Terrence and Vanessa Cooper (“the
PAB
Coopers”), purchasers of property (“Lot 86”) within the English Turn Subdivision
DNA
(“the Subdivision”), and the English Turn Property Owners Association

(“ETPOA”). The dispute centers on whether the Coopers have a right of passage

to access their property without being subject to the fees assessed on the

Subdivision’s property owners under the terms of the Subdivision’s Declarations

of Covenants, Conditions, and Restrictions (“DCCR”).

The Coopers retained contractors to begin construction work on a house for

Lot 86. The ETPOA, which privately maintains and owns the Subdivision’s

Common Areas, denied the contractors’ entry to the Subdivision and issued a stop

work order pending the Coopers’ ratification of the DCCR. The Coopers refused to

sign the DCCR. Both parties filed summary judgment motions regarding the

Coopers’ right of passage.

On appeal, the Coopers maintain that the trial court erred in denying their

motion for partial summary judgment seeking declaratory judgment and mandatory

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injunction demanding access to Lot 86 without subjecting their property to the

DCCR payments terms. Conversely, they contend that the trial court also erred in

granting the ETPOA’s motion for summary judgment which denied the Coopers’

request for unrestricted access to the Subdivision without paying the DCCR

assessments and dismissed the Coopers’ claims with prejudice.1

We find no material issues of fact or law exist that entitle the Coopers to an

unrestricted right of passage to their property without submitting to the DCCR

assessment fees. Accordingly, we affirm the trial court’s judgment granting the

ETPOA’s motion for summary judgment and denying the Coopers’ motion for

partial summary judgment.

FACTUAL AND PROCEDURAL HISTORY

The English Turn Joint Venture LLC, which later changed its name to

English Turn Limited Partnership (“the Partnership”), created the Subdivision

through the filing of the DCCR on May 6, 1988. At the time the DCCR was

recorded, the Partnership had retained the right to subject additional properties to

the terms of the DCCR at its discretion. The Partnership also held certain

easements to access the properties across the Subdivision’s Common Areas.

The Partnership sold some of the remaining lots within the Subdivision to

English Turn Lots, L.L.C. (“English Turn Lots”) in 2013. Some of the lots

obtained by English Turn Lots were not subject to the DCCR and its amendments.

As part of the sale, English Turn Lots acquired from the Partnership “[a]ll rights

1 The ETPOA had permitted the Coopers to access Lot 86; however, denied access to the

Coopers’ guests and invitees.

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and obligations of the Sellers as the ‘Declarant’ and as an ‘Owner’ under that

certain Declaration of Covenants, Conditions, and Restrictions for English Turn

Subdivision dated May 6, 1988 . . . as amended.” These rights included the

acquisition of certain easements afforded by the DCCR in Section 3.11, which

provided, in part, the following:

There is hereby reserved in Declarant, and its successors, assigns, and
successors-in-title to the Additional Property (if said rights are granted
by Declarant to such successors, assigns, and successors-in-title), for
the benefit of and as an appurtenance to the Additional Property and
as a burden upon the Property, perpetual, non-exclusive rights and
easements for (i) pedestrian and vehicular ingress, egress, and
parking, across, within, and on all roads, sidewalks, trails and parking
facilities, from time to time located within the Common Areas . . . .

The Subdivision’s Common Areas, as defined in the DCCR, include

privately maintained community parks, recreational facilities, and streets. Access

to all lots within the Subdivision—through manned security guard gates— requires

traversal of the Common Areas. The ETPOA funds the amenities for the Common

Areas through fees assessed by the DCCR on the Subdivision’s property owners.

The Coopers purchased Lot 86 from English Turn Lots via Act of Cash sale

on March 8, 2021. The transaction did not grant the Coopers English Turn Lot’s

easement rights, such as the right to traverse the Common Areas, as outlined in

Section 3.11 of the DCCR. At the time of the sale, Lot 86 was one of the

properties not subject to the terms of the DCCR.

In October 2021, the Coopers retained contractors to begin improvements on

Lot 86 to build a house. After the ETPOA learned of these improvements, the

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ETPOA prevented the Coopers’ contractors from entering the Subdivision. The

ETPOA issued a “Stop Work Order” which stated, in pertinent part, that “Property

is not annexed into the community. Owner must sign annexation paperwork and

return to the POA office.” The “annexation paperwork” included the Coopers’

ratification of the DCCR. The Coopers declined to ratify the DCCR.

The Coopers filed a Petition for Declaratory Judgment, Mandatory

Injunction and Damages (“the Petition”) against the ETPOA. The Petition sought

a declaratory judgment finding that Lot 86 was not subject to the DCCR and a

mandatory injunction for the ETPOA to cease and desist from interfering with the

Coopers’ access to their property and disturbing the Coopers’ peaceful possession.

The Petition also sought damages caused by the ETPOA’s alleged bad faith

disturbance of the Coopers’ peaceful possession and their right to access Lot 86.

The ETPOA’s answer and affirmative defenses to the Coopers’ Petition

argued, in part, that the Coopers had no right to traverse the Common Areas and

claim the benefits of the Subdivision without paying the dues and assessments

provided for in the DCCR.

Thereafter, the Coopers filed a motion for partial summary judgment

reiterating its request for a declaratory judgment that Lot 86 was not subject to the

DCCR and a mandatory injunction ordering the ETPOA to cease and desist from

interfering with the peaceful possession of their property. In response, the ETPOA

filed its counter motion for summary judgment. The ETPOA asserted that no

provision of the DCCR or the Coopers’ Act of Sale granted the Coopers an

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unconditional right to traverse the Subdivision and that the Coopers had no claim

for damages because their property rights had not been disturbed. The ETPOA

also acknowledged that Lot 86 had not been annexed to the Subdivision pursuant

to the terms of the DCCR at the time of the Coopers’ purchase. Consequently, the

ETPOA urged that its acknowledgment meant that no justiciable controversy

existed to entitle the Coopers to declaratory judgment on that issue.

Evidence admitted at the hearing on the parties’ respective summary

judgment motions included the affidavit of Sandra Benenate, the Director of

Operations for the ETPOA, the DCCR, and the Coopers’ Act of Cash Sale. The

ETPOA re-urged its concession that Lot 86 was not subject to the DCCR. During

argument, the trial court agreed with the ETPOA’s underlying premise that it was

entitled to assess a fee, via the DCCR, for the Coopers’ right to traverse the

Common Areas in order to gain access to Lot 86. The following exchanges took

place between the trial court and counsel for the Coopers:

THE COURT:
Let me ask you this, Mr. Scalfani. It’s my understanding
that, according to the cases, that an enclosed property has
to be allowed access; however, that access is not free.

MR: SCALFANI:

I would agree, Your Honor.

....

MR. SCALFANI:

Insofar as English Turn Lots, as the predecessor in title
created this enclosed estate. And we talked about that in
our opposition. And that it is the -- as the successor in
title, the Coopers are entitled to have access.

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THE COURT:

But the access is not free.

MR. SCALFANI:

It’s a servitude of some sort, yes.

THE COURT:

And it comes as a result of this declaration. That’s [the]
way you pay for it, with the fees.

MR. SCALFANI:

I think that’s what English Turn would argue, Your
Honor. I don’t know that - -

THE COURT:

I kind of agree with them.

At the conclusion of the hearing, the trial court rendered judgment granting

the motion for summary judgment of the ETPOA and denying the Coopers’ motion

for partial summary judgment, dismissing all of the Coopers’ claims with

prejudice. The Coopers timely filed the present appeal.

SUMMARY JUDGMENT/STANDARD OF REVIEW

“The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action . . . .” La. C.C.P. art. 966 (A)(2).

“The procedure is favored and shall be construed to accomplish these ends.” Id.

“[The] 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 summary judgment as a matter of

law.” La. C.C.P. art. 966(A)(3). The mover bears the burden of proof. La. C.C.P.

art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial

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on the issue that is before the court, the mover is not required to negate all essential

elements of the adverse party’s claim, but rather point out to the court the absence

of one or more essential elements to the non-mover’s claim. See La. C.C.P. art.

966(D)(1).

Appellate courts review summary judgments under the de novo standard of

review, utilizing the same criteria employed by the trial court in determining

whether summary judgment is appropriate. See Succession of Rasch v. Dabezies,

2017-0331, p. 5 (La. App. 4 Cir. 10/18/17), 316 So.3d 1167, 1170. When the facts

are not in dispute, summary judgment is appropriate as the appellate court need

only “look solely to the legal question presented by the motion for summary

judgment.” Power Mktg. Direct, Inc. v. Foster, 2005-2023, p. 9 (La. 9/6/06), 938

So.2d 662, 669. Accordingly, this Court shall review whether there are any

genuine issues of material fact in dispute; and if not, whether the ETPOA was

entitled to summary judgment as a matter of law and/or alternatively, whether the

Coopers were properly precluded from summary judgment relief.

ASSIGNMENTS OF ERROR

The Coopers raise two assignments of error. In their first assigned error,

they maintain that the trial court improperly denied their motion for partial

summary judgment in that (i) no genuine issue of material fact exists that Lot 86

was not subject to the DCCR so as to restrict the Coopers’ use, and as such, the

Coopers are entitled to a declaratory judgment on that fact; and (ii) the Coopers are

entitled to summary judgment as a matter of law because there are no genuine

issues of material fact regarding the Coopers’ right of possession to Lot 86, their

right to access the Common Areas of the Subdivision, and their entitlement to a

permanent injunction to enjoin the ETPOA from interfering with their right to

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possession and access. The Coopers’ second assigned error contends that the trial

court erred in granting the ETPOA’s motion for summary judgment and dismissing

the Coopers’ Petition.

The question as to whether the trial court properly granted the ETPOA’s

motion for summary judgment may be dispositive as to whether the trial court

properly denied the Coopers’ motion for summary judgment. Accordingly, this

Court shall first review this alleged error.

DISCUSSION

The ETPOA’S Motion for Summary Judgment

The ETPOA alleged in its summary judgment motion that the Coopers were

not entitled to unlimited use of the privately owned amenities of the Subdivision,

including the right to traverse the Common Areas of the Subdivision, without

paying the fees for use as outlined in the DCCR. ETPOA emphasized that the

Coopers could point to no provision of law or any contractual terms within their

Act of Sale or the DCCR which would entitle them to such unlimited use. Based

on our de novo review, we agree with the ETPOA’s argument.

Legal Right to Traverse

In opposition to the ETPOA’s summary judgment motion, the Coopers posit

that they obtained a legal servitude to traverse as English Turn Lots’ successors in

interest by virtue of a servitude by “destination of the owner” and/or alternatively,

a gratuitous servitude of passage English Turn Lots acquired from its property sale

with the Partnership. The Coopers assert that these servitudes ran with the land,

and as a result, the Coopers were the beneficiaries of these servitudes when they

purchased Lot 86 from English Turn Lots. We find no merit to either of these

contentions. Moreover, we find the actual Act of Sale between the Coopers and

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English Turn Lots conferred no right of passage servitude to benefit the Coopers

without compensation.

Servitude by Destination

The Coopers argue that the sale between the Partnership and English Turn

Lot created a servitude of passage by “destination of the owner” as defined by La.

C.C. art. 741, where an apparent servitude comes into existence as a matter of right

when the estates no longer belong to the same owner. La. C.C. art. 741

specifically states the following:

Destination of the owner is a relationship established between two
estates owned by the same owner that would be a predial servitude if
the estates belonged to different owners.

When the two estates cease to belong to the same owner, unless there
is express provision to the contrary, an apparent servitude comes into
existence of right and a nonapparent servitude comes into existence if
the owner has previously filed for registry in the conveyance records
of the parish in which the immovable is located a formal declaration
establishing the destination.

According to the Coopers, this servitude by destination of the owner was allegedly

created when the Partnership sold additional properties to English Turn Lots, and

they succeeded to the servitude upon English Turn Lots’ sale of Lot 86 to the

Coopers.

Our review of the undisputed facts of this case do not support that the

aforementioned sales created a servitude by destination of the owner. Rather, the

facts show that at the time of the Partnership’s sale to English Turn Lots, the

ETPOA owned the Common Areas over which the Coopers now attempt to gain

access and that Lot 86 was owned by the Partnership. Moreover, the undisputed

facts demonstrate that Lot 86 and the other additional properties sold by the

Partnership to English Turn Lots were within the confines of the Subdivision and

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passage required traversal through the Common Areas. Additionally, as previously

referenced and more fully discussed herein below, the Partnership and English

Turn Lots entered into a written contract which provided English Turn Lots with

certain easement rights. Hence, because the relationship between the properties

owned by the Partnership to those properties acquired by English Turn Lots

engendered a contractual rather than an apparent servitude, and the Common Areas

and Lot 86 did not have the same owner, the principles regarding the creation of a

servitude by destination of the owner do not apply to the present matter. See Davis

v. Provost, 2007-1519, p. 6 (La. App. 3 Cir. 4/2/08), 980 So.2d 821, 826 (where

the appellate court determined the neighbor did not acquire an apparent servitude

over landowners’ property by destination of the owner where the landowners never

owned the neighbor’s property).

Gratuitous Servitude

Next, the Coopers claim that a gratuitous servitude of passage acquired by

English Turn Lots inured to their benefit under La. C.C. art. 694. La. C.C. art. 694

provides the following:

When in the case of partition, or a voluntary alienation of an estate or
of a part thereof, property alienated or partitioned becomes enclosed,
passage shall be furnished gratuitously by the owner of the land on
which the passage was previously exercised, even if it is not the
shortest route to the public road or utility, and even if the act of
alienation or partition does not mention a servitude of passage.

The Coopers allege that English Turn Lots obtained a gratuitous servitude of

passage from the Partnership after Lot 86 became enclosed as a result of the

Partnership’s property saTle to English Turn Lots. We disagree. Lot 86 was

clearly within the bounds of the Subdivision and access to the Subdivision required

passage through one of the manned guard gates separating the Common Areas of

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the Subdivision from the public roads at the time of sale between English Turn

Lots and the Partnership. Notwithstanding, the properties acquired by English

Turn Lots, including Lot 86, did not become “enclosed” as a result of the sale

because the contract expressly provided English Turn Lots with easements

granting a right of passage to traverse the Common Areas. Therefore, as English

Turn Lots’ right of passage resulted from a contract, rather than a gratuitous

servitude, the Coopers are not entitled to a gratuitous right of passage pursuant to

La. C.C. art. 694 based on their acquisition of Lot 86 from English Turn Lots.

Contract Between the Coopers and English Turn Lots

We also find that the express Act of Sale contract between the Coopers and

English Turn Lots did not create any servitude of passage on behalf of the Coopers.

Again, as noted by the ETPOA, the contract between the Partnership and English

Turn Lots which provided English Turn Lots with easements to access the

Subdivision permitted reservation of these easements to English Turn Lots’

successors only “if said rights are granted by [English Turn Lots] to such

successors, assigns, and successors-in-title.” “The words of a contract must be

given their generally prevailing meaning.” See La. C.C. art. 2047. Clear and

unambiguous language in a contract should be enforced as written. See Marshall

v. Air Liquide-Big Three, Inc., 2011-0990, p. 53 (La. App. 4 Cir. 9/7/12), 107

So.3d 13, 47. “A right of passage, or right-of-way, is a servitude, and when it is a

result of a contract, its extent and mode of use is regulated by that contract.” See

White v. Durrwachter, 431 So. 2d 65, 67 (La. App. 1st Cir. 1983). Thus, pursuant

to the unambiguous language in the contract between English Turn Lots and the

Partnership, in order for the Coopers to obtain the rights to the easements, English

Turn Lots had to specifically grant the easement rights to the Coopers. Here, the

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Coopers admit that English Turn Lots did not transfer the rights to these easements

to the Coopers in the Act of Sale between the two. Additionally, the record is

devoid of evidence that the Coopers attempted to negotiate for these rights as a part

of the terms of the purchase in the Act of Sale. Accordingly, we find that the

property sale between English Turn Lots and the Coopers conferred no easement

rights for the Coopers to traverse the Subdivision.

La. C.C. art. 689; Compensation for Right to Passage

The ETPOA and the Coopers acknowledge that Lot 86 was not subject to the

DCCR when it was purchased by English Turn Lots. The Coopers maintain this

acknowledgment means that the ETPOA cannot compel the Coopers to ratify the

DCCR, whereas the ETPOA argues that in the event the Coopers desire a servitude

of passage, the ETPOA can require the Coopers to ratify the DCCR. Again, we

agree with the ETPOA’s argument.

Lot 86 has become effectively enclosed as a result of the Coopers’ failure to

acquire a right of passage through the Subdivision. The mechanisms to claim a

right of passage for an enclosed estate are outlined in La. C.C. art. 689 as follows:

The owner of an estate that has no access to a public road or utility
may claim a right of passage over neighboring property to the nearest
public road or utility. He is bound to compensate his neighbor for the
right of passage acquired and to indemnify his neighbor for the
damage he may occasion.

Accordingly, well-settled jurisprudence holds that an owner of an enclosed estate

is not entitled to a right of passage until the parties agree “upon the compensation

to be first paid” for the value of the servitude. See Wemple v. Eastham, 150 La.

247, 90 So. 637 (1922). Here, the fees imposed under the DCCR are the

“compensation” requested by the ETPOA. The uncontested affidavit of Ms.

Benenate, the ETPOA’s Director of Operations, supports that the ETPOA offered

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the Coopers access to the Subdivision, provided that they subject their property to

the DCCR, and that all of the other property owners within the Subdivision pay

these DCCR fees for the right to traverse and other amenities, including the

Coopers, who are the owners of other lots.2

The parties herein do not dispute the principal, underlying facts of this

matter—namely, that the Act of Cash Sale between the Coopers and English Turn

Lots did not include a reservation of easement rights; that Lot 86 was not subject to

the DCCR at the time of sale; and that the ETPOA has offered the Coopers a right

a right of passage in exchange for compensation in the form of ratification of the

DCCR. Based on these undisputed facts, the ETPOA met its burden of proof

entitling it to summary judgment as a matter of law. Therefore, the trial court did

not err in granting the ETPOA’s summary judgment motion, finding that the

Coopers were not entitled to an unrestricted right of passage without first paying

the compensation demanded by the ETPOA under the DCCR.

The Coopers’ Motion for Partial Summary Judgment

Having determined that the trial court did not err in granting the ETPOA’s

motion for summary judgment, and as such, that the Coopers were not entitled to

the relief requested in their Petition, we pretermit discussion of the Coopers’ claim

that the trial court erred in denying their motion for partial summary judgment.

DECREE

For the above-mentioned reasons, the judgment of the trial court is affirmed.

AFFIRMED

2 Ms. Benenate’s affidavit attests that ‘[a]ll remaining lots owned by English Turn Lots have

been annexed in the subdivision” and that ‘[t]he Coopers are the owners of other lots in English
Turn.”

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