Ronald Joseph McDowell v. Primeaux Landz, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-637

RONALD JOSEPH MCDOWELL
AND ANNA MARTHA MCDOWELL

VERSUS

PRIMEAUX LANDZ[,]LLC,
HARLEY RONALD HEBERT[,] AND
DEBRA ANN BILLEDEAUX HEBERT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-3449
HONORABLE DAVID RITCHIE, DISTRICT JUDGE

************

JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and Chris J. Roy, Sr.,*
Judges.

REVERSED AND RENDERED.

Cecil R. Sanner
4830 Lake Street
Lake Charles, Louisiana 70605
(337) 478-5208
Counsel for Plaintiffs/Appellants:
Ronald Joseph McDowell and
Anna Martha McDowell

David F. Dwight
1400 Ryan Street
Lake Charles, Louisiana 70601
(337) 439-3138
Counsel for Defendants/Appellees:
Primeaux Landz, LLC,
Harley Ronald Hebert, and
Debra Ann Billedeaux Hebert
_____________________
*Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

GENOVESE, Judge.

The Plaintiffs, Ronald Joseph McDowell and Anna Martha McDowell, appeal

the trial court’s denial of their motion for summary judgment and the granting of

summary judgment in favor of the Defendants, Primeaux Landz, LLC, Harley Ronald

Hebert, and Debra Ann Billedeaux Hebert. For the following reasons, we reverse and

render.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a dispute over the effect of building restrictions in a

subdivision located on Highway 14 near Lake Charles, Louisiana, in Calcasieu

Parish. The area now comprising the subdivision was at one time owned, in its

entirety, by Defendant, Primeaux Landz, LLC (Primeaux Landz). In 2004, Primeaux

Landz divided the acreage into eleven individual lots, naming the development Creole

Key Subdivision. On January 23, 2004, Primeaux Landz filed a document entitled

the Creole Key Subdivision Restrictive Covenants1 into the conveyance records of

Calcasieu Parish. The building restrictions provided, in relevant part: “All lots must

be used for the construction of one (no more than one) single-family dwelling for

residential purposes only. . . . No commercial activities will be permitted. . . .”2 It

also provided for supplement to or amendment of the building restrictions by either

“the architectural control committee composed of the undersigned subdivision

developers or written approval of 51% of the lot owners in the subdivision.” On

October 27, 2004, Mr. and Mrs. McDowell purchased lot nine in Creole Key

1
Throughout this opinion, the Creole Key Subdivision Restrictive Covenants will be referred
to as “building restrictions.”
2
The building restrictions contained a single exception to the prohibition against commercial
activity: “These Creole Key Subdivision Restrictive Covenants do not apply to lot (11) eleven,
which is a [c]ommercial lot at the [e]ast end of the subdivision (on plat, bordering Highway 14).”

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Subdivision from Primeaux Landz.

On August 1, 2005, Primeaux Landz filed another set of building restrictions

affecting Creole Key Subdivision into the conveyance records of Calcasieu Parish.

This set of building restrictions did not contain a provision prohibiting commercial

activities on any of the lots in Creole Key Subdivision and was signed only by the

architectural control committee. On August 4, 2005, Defendants, Mr. and Mrs.

Hebert, purchased lot ten in Creole Key Subdivision from Primeaux Landz. In May

of 2006, Mr. and Mrs. Hebert began operating a beauty salon from their residence,

lot ten, in Creole Key Subdivision.

On June 15, 2007, Mr. and Mrs. McDowell filed a Petition for Permanent

Injunctive Relief, Invalidation of Restrictive Covenants, and to Terminate

Commercial Activity. Mr. and Mrs. McDowell’s petition prayed for a judgment

invalidating the building restrictions which were recorded by Primeaux Landz on

August 1, 2005. Mr. and Mrs. McDowell asserted that the building restrictions filed

on January 23, 2004 did not contain “express language . . . which authorized the

termination of the commercial activity provision[;]” therefore, citing La.Civ.Code art.

780, Mr. and Mrs. McDowell urged that the filing of the building restrictions on

August 1, 2005 by Primeaux Landz, which excluded a prohibition against commercial

activity in Creole Key Subdivision, was an improper termination of the building

restrictions filed on January 23, 2004. Mr. and Mrs. McDowells’ petition prayed for

a judgment invalidating the building restrictions filed on August 1, 2005, reinstating

the original building restrictions filed on January 23, 2004, and enjoining Mr. and

Mrs. Hebert from operating a beauty salon on their property in Creole Key

Subdivision.

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On July 17, 2007, the Defendants answered Mr. and Mrs. McDowell’s suit

denying the allegation that the building restrictions filed on August 1, 2005

terminated the prohibition against commercial activities. Additionally, in the

alternative, the Defendants’ answer asserted that they had:

recently filed an amendment[3] to the original restrictive covenants . . . .
The amendment provides for one single dwelling, for residential
purposes only, to be constructed on one lot but provides for a provision
for the owners of lot [ten] to have a beauty shop located in their home
by the land/home owner and are not allowed to have any employees of
the business besides the land/home owner.

The Defendants filed a Motion for Summary Judgment on September 25, 2007,

wherein they acknowledged that “Primeaux Lands, LLC did in fact change the

building restrictions in August of 2005 without consulting with an attorney.

Primeaux Landz, LLC without knowledge of the laws on building restrictions deleted

the portion of the original covenants which prohibited commercial activity on the

property.” However, the Defendants asserted that, after becoming aware of the

lawsuit filed by Mr. and Mrs. McDowell, they “remedied the plaintiff’s [sic] sole

cause of action.” The Defendants asserted that the Second Amendment to Creole Key

Subdivision Restrictive Covenants, filed on July 16, 2007, and executed by the

architectural committee and fifty-one percent of the lot owners, complied with the

covenants in the original building restrictions and La.Civ.Code art. 780. According

to the Defendants, the building restrictions filed on July 16, 2007, simply amended

the original building restrictions filed on January 23, 2004, and, thus, the Defendants

had corrected any error resultant from the filing of the building restrictions filed on

3
The recent amendment to which the Defendants refer is a document entitled Second
Amendment to Creole Key Subdivision Restrictive Covenants which was filed into the conveyance
records of Calcasieu Parish on July 16, 2007, and which was signed by the architectural control
committee and the owners of lots two, three, four, six, seven, and ten in Creole Key Subdivision.

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August 1, 2005. Therefore, Defendants moved for summary judgment asserting that

they were entitled to judgment dismissing Mr. and Mrs. McDowell’s suit.

Mr. and Mrs. McDowell also filed a Motion for Summary Judgment on

November 27, 2007. Mr. and Mrs. McDowell asserted that they purchased lot nine

on October 27, 2004, in Creole Key Subdivision with the understanding that, except

for lot eleven which was owned by Primeaux Landz and on which commercial

activity was allowed, there was to be no other lot in Creole Key Subdivision on which

commercial activity would be allowed. According to Mr. and Mrs. McDowell, the

Defendants improperly terminated the subdivision’s restriction against commercial

activity through both the second version of the building restrictions filed on August

1, 2005, and the third version of the building restrictions filed on July 16, 2007.

A hearing on the parties’ cross-motions for summary judgment was held on

January 4, 2008, after which the trial court ruled that “it [found] this to be an

amendment and not a termination, especially because it is so narrowly drawn to just

allow for a beauty shop by the homeowner because this is a home based business.”

A formal judgment was signed by the trial court on March 6, 2008, granting the

Motion for Summary Judgment filed by the Defendants and denying the Motion for

Summary Judgment filed by Mr. and Mrs. McDowell. Mr. and Mrs. McDowell

appeal.

ASSIGNMENTS OF ERROR

Mr. and Mrs. McDowell contend that:

1. The [t]rial [c]ourt erred in granting the Motion for
Summary Judgment in favor of the Defendants;

2. The [t]rial [c]ourt erred in not granting the Motion for
Summary Judgment in favor of the Plaintiffs; and

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3. Alternatively, the [t]rial [c]ourt should have denied both
Motion for Summary Judgment and ordered this matter for
trial in an ordinary proceeding.

STANDARD OF REVIEW

The governing jurisprudence relative to a motion for summary judgment and

our appellate standard of review thereof have recently been reiterated by our supreme

court as follows:

A motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of the relief
prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363[,] p. 3
(La.11/29/06), 950 So.2d 544, 546, see [La.Code Civ.P.] art. 966.4 A

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[Louisiana Code of Civil Procedure Article] 966 provides:

A. (1) The plaintiff or defendant in the principal or any incidental action, with
or without supporting affidavits, may move for a summary judgment in his favor for
all or part of the relief for which he has prayed. The plaintiff’s motion may be made
at any time after the answer has been filed. The defendant’s motion may be made at
any time.

(2) The summary judgment procedure is designed to secure the just, speedy,
and inexpensive determination of every action, except those disallowed by Article
969. The procedure is favored and shall be construed to accomplish these ends.

B. The motion for summary judgment and supporting affidavits shall be
served at least fifteen days before the time specified for the hearing. For good cause,
the court shall give the adverse party additional time to file a response, including
opposing affidavits or depositions. The adverse party may serve opposing affidavits,
and if such opposing affidavits are served, the opposing affidavits and any
memorandum in support thereof shall be served pursuant to Article 1313 at least
eight days prior to the date of the hearing unless the Rules for Louisiana District
Courts provide to the contrary. The judgment sought 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 mover is entitled to judgment as a matter of law.

C. (1) After adequate discovery or after a case is set for trial, a motion which
shows that there is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law shall be granted.

(2) The burden of proof remains with the movant. However, if the movant
will not bear the burden of proof at trial on the matter that is before the court on the
motion for summary judgment, the movant’s 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 that there is an absence of factual support for one
or more elements essential to the adverse party’s claim, action, or defense.
Thereafter, if the adverse party fails to produce factual support sufficient to establish
that he will be able to satisfy his evidentiary burden of proof at trial, there is no

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summary judgment is reviewed on appeal de novo, with the appellate
court using the same criteria that govern the trial court’s determination
of whether summary judgment is appropriate; i.e. whether there is any
genuine issue of material fact, and whether the movant is entitled to
judgment as a matter of law. Wright v. Louisiana Power & Light,
2006-1181[,] p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King v. Parish
National Bank, 2004-0337[,] p. 7 (La.10/19/04), 885 So.2d 540, 545;
Jones v. Estate of Santiago, 2003-1424[,] p. 5 (La.4/14/04), 870 So.2d
1002, 1006.

Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83.

DISCUSSION

Louisiana Civil Code Article 780 provides (emphasis added):

Building restrictions may be amended, whether such amendment
lessens or increases a restriction, or may terminate or be terminated, as
provided in the act that establishes them. In the absence of such
provision, building restrictions may be amended or terminated for the
whole or a part of the restricted area by agreement of owners
representing more than one-half of the land area affected by the
restrictions, excluding streets and street rights-of-way, if the restrictions
have been in effect for at least fifteen years, or by agreement of both
owners representing two-thirds of the land area affected and two-thirds
of the owners of the land affected by the restrictions, excluding streets
and street rights-of-way, if the restrictions have been in effect for more
than ten years.

As stated by the trial court at the hearing on the parties’ motions for summary

judgment, “[t]he issue is termination versus amendments.” If the allowance of

commercial activity on lot ten, owned by Mr. and Mrs. Hebert, is considered to be a

termination of the building restrictions filed on January 23, 2004, then the subsequent

building restrictions filed on August 1, 2005 and July 16, 2007 do, in fact, violate

genuine issue of material fact.

D. The court shall hear and render judgment on the motion for summary
judgment within a reasonable time, but in any event judgment on the motion shall be
rendered at least ten days prior to trial.

E. A summary judgment may be rendered dispositive of a particular issue,
theory of recovery, cause of action, or defense, in favor of one or more parties, even
though the granting of the summary judgment does not dispose of the entire case.

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La.Civ.Code art. 870. Conversely, if said allowance is considered to have simply

been an amendment to the original building restrictions, then the subsequent building

restrictions are proper.

In their appellate brief, Mr. and Mrs. McDowell argue that the original building

restrictions did not authorize Primeaux Landz to terminate the prohibition against

commercial activity which, they contend, is exactly what occurred when said

prohibition was removed in order to allow Mr. and Mrs. Hebert to operate a beauty

salon on their lot in Creole Key Subdivision. Mr. and Mrs. McDowell further assert

that the trial court erred in concluding that the removal of said prohibition equated to

an amendment of the building restrictions rather than a termination of the original

building restrictions.

Mr. and Mrs. McDowell cite Woodward v. Cutrer, 02-423 (La.App. 3 Cir.

2/5/03), 838 So.2d 180, writ denied, 03-650 (La. 5/2/03), 842 So.2d 1106, in support

of their position. In Woodward, the developer of a subdivision brought suit to enjoin

the Cutrers after they began construction of a pier and boathouse. The building

restrictions mandated that the Cutrers obtain the developer’s permission prior to any

new construction. The Cutrers, along with a majority of the subdivision’s property

owners, attempted to amend the building restrictions, removing that portion of the

building restrictions requiring the developer’s prior approval of new construction

plans. Similar to the case sub judice, in Woodward, the building restrictions did not

contain a provision for termination of the subdivision’s building restrictions, only for

their modification or amendment. As in the case at bar, the issue in Woodward was

whether the removal of the prior approval of the developer requirement equated to an

amendment to or a termination of the building restrictions. This court held that the

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provision concerning amendments to restrictions did not apply to termination of

building restrictions. Quoting Mackey v. Armstrong, 30,054, p. 2 (La.App. 2 Cir.

12/30/97), 705 So.2d 1198, 1199, this court declared “[t]ermination and amendment

of building restrictions are generally different and distinct matters.” Woodward, 838

So.2d at 185.

The Defendants, in brief, assert that Woodward is neither supportive of the

arguments furthered by Mr. and Mrs. McDowell nor analogous to the case at bar. We

disagree. Were the Defendants allowed to amend the subdivision’s building

restrictions once, the Defendants could do so again and again until commercial

activity was allowed on all of the lots in Creole Key Subdivision. In fact, the trial

court recognized this possibility and posed that very question; however, the trial court

ruled against Mr. and Mrs. McDowell and ruled in favor of the Defendants.

Based on our de novo review, we find the trial court’s determination that the

changes made to the building restrictions were, in essence, amendments and not a

termination of said building restrictions to be erroneous. When Mr. and Mrs.

McDowell purchased their property, no commercial activity was allowed in the

subdivision except for lot eleven which was excluded from the original building

restrictions. Defendants’ alleged “amendment” allowing commercial activity

constituted a change in the overall plan of the subdivision. It is undisputed that the

operation of a beauty shop by Mr. and Mrs. Hebert constituted commercial activity

which was prohibited by the original building restrictions. Allowing the amendment,

which would permit Mr. and Mrs. Hebert to conduct commercial activity on their

premises, is tantamount to a termination of the prohibition in the building restrictions

against commercial activity on the property in question. Changing the status of

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subdivision property from residential to commercial is the termination of a building

restriction, not an amendment. Therefore, we find that the trial court incorrectly

granted the motion for summary judgment filed by the Defendants and incorrectly

denied the motion for summary judgment filed by Mr. and Mrs. McDowell.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. The

Motion for Summary Judgment filed by the Plaintiffs/Appellants, Ronald Joseph

McDowell and Anna Martha McDowell is granted; the Motion for Summary

Judgment filed by the Defendants/Appellees, Primeaux Landz, LLC, Harley Ronald

Hebert, and Debra Ann Billedeaux Hebert, is denied. All costs of this appeal are

assessed against the Defendants/Appellees, Primeaux Landz, LLC, Harley Ronald

Hebert, and Debra Ann Billedeaux Hebert.

REVERSED AND RENDERED.

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