Fouad Hijazi and Rimi Elsabeh Hijazi v. Anne Schaefer Dentler

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-268

FOUAD HIJAZI AND RIMI ELSABETH HIJAZI

VERSUS

ANNE SCHAEFER DENTLER, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-5348, DIVISION E
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and John E.
Conery, Judges.

AFFIRMED.

Winfield Earl Little, Jr.
Attorney at Law
Post Office Box 3759
Lake Charles, Louisiana 70602
(337) 430-0907
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Fouad Hijazi
Rimi Elsabeth Hijazi

Merrick J. (Rick) Norman, Jr.
Norman Business Law Center
145 East Street
Lake Charles, Louisiana 70601
(337) 436-7787
COUNSEL FOR DEFENDANTS/APPELLEES:
Anne Schaefer Dentler
Bradley Nelson
Karen Nelson
Worth Scott Moffett, III
Timothy O’Dowd

Timothy O’Dowd
Attorney at Law
921 Ryan Street, Suite D
Lake Charles, Louisiana 70601
(337) 310-2304
COUNSEL FOR DEFENDANT/APPELLEE:
Maria O’Dowd

CONERY, Judge.

Fouad Hijazi and Rimi Elsabeth Hijazi (“Hijazis”), owners of two one-acre

lots in a ten one-acre lot development in Lake Charles, Louisiana, filed suit on

November 6, 2009, for declaratory judgment against the owners of the remaining

eight one-acre lots. The Hijazis sought to dissolve the building restrictions

contained in the deeds to the one-acre lots. The restrictions prevented the Hijazis

from constructing twelve patio homes on their two one-acre lots. The Hijazis, in

paragraphs one and nineteen of their petition for declaratory judgment, admitted

the building restrictions encumbered their lots.

Some of the owners of the remaining eight one-acre lots named in the

Hijazis‟ declaratory judgment, Anne Schaefer Dentler, Bradley Nelson, Karen

Nelson, Timothy O‟Dowd and Maria O‟Dowd (“neighborhood owners”),

reconvened seeking first a permanent injunction to enjoin the Hijazis from

violating the building restrictions, and second a declaratory judgment as to both the

validity and enforceability of the building restrictions for the ten one-acre lots.

Warren Moffett, III, the developer of the ten acre tract, intervened as a party in

interest to enforce the deed restrictions.

The trial court initially granted a preliminary injunction in favor of the

neighborhood owners. The preliminary injunction enjoined the Hijazis from

dividing their two lots into twelve lots in order to build the twelve patio homes

they contemplated. The trial court subsequently denied the Hijazis‟ motion to

dissolve the preliminary injunction and ultimately found in favor of the

neighborhood owners at trial on the merits and issued a permanent injunction.

Finally, the trial court denied the Hijazis‟ motion for new trial. The Hijazis appeal

the ruling of the trial court finding that the building restrictions on the ten one acre-

lot development at issue were valid and enforceable and have not been abandoned

by the actions of any of the neighborhood owners. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

History of the Ten One-Acre Lot Development

In 1996, Worth Scott Moffett, III, a real estate developer and agent, deed-

restricted ten, identical, contiguous, one-acre lots on West Sale Road in Lake

Charles, Louisiana. Mr. Moffett developed the ten one-acre lots under a general

plan and recorded a plat of the “proposed” subdivision in the conveyance records

of the Calcasieu Parish Clerks Office. Mr. Moffett never filed a final subdivision

plat, but instead developed the ten lots in the same manner as the other forty

properties he had developed in that he did not provide the infrastructure, such as

roads, sidewalks, etc. He did, however, provide the drainage required by the City

of Lake Charles.

The same nineteen reciprocal building restrictions were placed into the

original deeds of all ten one-acre lots and are attached to the deeds and identified

as “EXHIBIT „A‟ RESTRICTIVE COVENANTS.” The extensive list of

restrictive covenants supports Mr. Moffett‟s testimony in his affidavit introduced

in evidence:

The building restrictions that I incorporated into each of the deeds of
the ten, one-acre lots of the development fronting West Sale Road
were identical and were recorded in furtherance of maintaining
standards and uniformity in the entire ten-lot development. I wanted
big homesteads with large front yards, among other specifications. I
wanted the owners of these lots to maintain the standards[] and
uniformity specified in the deed restrictions in perpetuity.

The development also contained four ten-acre lots that were not part of the

ten one-acre lot development. These four ten-acre lots were designated to be and

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eventually were developed separately from the ten one-acre lots and, thus, did not

contain the same deed restrictions.

The restrictive covenants applicable to this case state in pertinent part:

1. All tracts shall be used for single family residential purposes only.
No structure shall be erected, altered, placed or permitted to remain on
any tract which exceeds 2 ½ stories in height. Each residence shall
have attached a minimum two-car garage or carport.

2. The front of a building shall be erected, on any tract, no closer than
175 feet nor farther than 215 feet, from the front property line, nor
shall a building be built closer than 12-1/2 feet to any property line
except the tract bordering on Weaver Road on which the residence
shall be no closer than 15 feet from the right of way of the road.

3. No residence shall be constructed with a living area of less than
2,500 sq. feet, exclusive of attics, porches, garages, carports, unheated
storage rooms, or other similar areas.

4. The minimum square footage of any first floor area in a multiple
story dwelling shall be 1,500 sq. feet of enclosed livable area,
exclusive of garages, carports, overhangs, decks patios, unheated
storage rooms, or other similar areas. Garage apartments which are
included as part of the residence and are occupied by the owners[‟]
servants or family members are permitted.

....

17. These restrictions shall be effective upon the filing of this
instrument in the conveyance records of Calcasieu Parish, Louisiana,
shall apply to and run in favor of all tracts[,] shall be binding on all
persons, and shall remain in full force and effect for a term of for a
term of twenty-five (25) years. At the end of the initial twenty-five
(25) year term thereafter, these restrictions shall renew and extend
automatically for a term of twenty-five (25) years without any action
or documentation.

18. These restrictive covenants can be amended in whole or in part
by the owners of 8 or more tracts which are conveyed out of the
following described property. . . .

Sales History of the Ten One-Acre Lots

The Hijazis purchased lot one on October 7, 1999, from John Moffett, and

purchased lot two on December 3, 1999, from Louise Somers. The original

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petition filed by the Hijazis for declaratory judgment clearly states the Hijazis were

aware of the restrictive covenants not only at the time of purchase, but at the time

of filing their November 6, 2009 petition for declaratory judgment.

The Hijazis were aware that in order to “amend in whole or in part” the

restrictive covenants, a vote of eight out of ten of the one-acre lot owners was

required. They failed to obtain the necessary votes, and in February 2009, the

Hijazis attempted to unilaterally abandon the restrictions on lots one and two.

They stated in their affidavit of abandonment, filed on February 17, 2009, “the

general plan for which the restrictions were created was abandoned and never

developed or pursued as originally intended.”

Prior to the Hajazis‟ “Act of Abandonment” and more than ten years ago,

the neighborhood owners, in reliance on the restrictive covenants, purchased their

one-acre lots and built their residences in compliance with the restrictive covenants.

Ms. Dentler purchased lots three, four, five, and six in September 1999, and

subsequently built and continues to reside in an approximately 13,000 square foot

home on those lots. Mr. and Mrs. O‟Dowd purchased lot eight in May 1996 and

continue to reside in the home they built. Mr. and Mrs. Nelson bought lot ten in

December 2000 and also built and reside in their home.

ASSIGNMENTS OF ERROR

The assignments of errors urged by the Hijazis are stated verbatim below:

ERROR ONE: The Trial Court mistakenly held that there were valid
subdivision building restrictions in place applicable to
Appellant‟s/plaintiff‟s two (2) tracts. [sic]

ERROR TWO: The Trial Court mistakenly held that the alleged
subdivision building restrictions were still valid and enforceable even
though clearly the owner of four of the ten tracts had continuously

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violated the restrictions for a period in excess of three years causing
them to be abandoned.

LAW AND ANALYSIS

Standard of Review

The proper standard of review is whether the trial court committed an error

of law or made a factual finding that was manifestly erroneous or clearly wrong.

Gibson v. State, 99-1730 (La. 4/11/00), 758 So.2d 782, cert. denied, 531 U.S. 1052,

121 S.Ct. 656 (2000). The reviewing court must review the record in its entirety to

make this determination. Stobart v. State, DOTD, 617 So.2d 880 (La.1993). “Even

though an appellate court may feel its own evaluations and inferences are more

reasonable than the factfinder‟s, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review where conflict

exists in the testimony. Id. at 882. “Where two permissible views of the evidence

exist, the factfinder‟s choice between them cannot be manifestly erroneous or

clearly wrong.” Id.at 883.

However, statutory interpretations are a question of law. Shell v. Wal-Mart

Stores, Inc., 00-997 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, writ denied, 01-

1149 (La. 6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial

court‟s reasonable decision on a question or matter properly within the trial court‟s

discretion, if the trial court‟s decision is based on an erroneous interpretation or

application of the law, such an incorrect decision is not entitled to deference. Kem

Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

The Validity of the Building Restrictions

The Hijazis argue the trial court erred in finding the recorded building

restrictions were in full force and effect. The trial court in its Ruling of April 19,

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2012, after a trial on the merits on February 22, 2012, gave an overview of the

basic facts of the case and stated:

[T]he basic facts of this case are that there are 10 lots on Sale Road,
lot 1 and lot 2. Lot 1 is at the corner of Sale and Weaver Road and it
goes north toward Nelson Road. Those lots go in consecutive order
from Weaver toward Nelson Road. There are 10 lots.

There are building restrictions that were placed on the lots at
the time those lots were sold. They were filed into the public record.
The Hijazis bought lots 1 and 2. There were no improvements on
them and they wanted to build some townhomes or patio homes that
are similar to the ones that are across the street on Weaver Road. The
deed restrictions prevented them from doing so. That‟s what brought
this matter into court, and the Hijazis argued that there was never a
general plan and that they are not valid, and alternatively they argued
that there was an abandonment of the plan based on the actions of Ms.
Dentler in having an art studio. I‟m just going to cite just a few of the
applicable standards or the law that‟s related to these issues.

The trial court relied on La.Civ.Code arts.775 and 776 in its determination

that the building restrictions on the ten one-acre lots were valid and enforceable as

against the Hijazis with respect to lots one and two.

Louisiana Civil Code Article 775 provides, “Building restrictions are

charges imposed by the owner of an immovable in pursuance of a general plan

governing building standards, specified uses, and improvements. The plan must be

feasible and capable of being preserved.”

Louisiana Civil Code Article 776 provides that building restrictions

referenced in Article 775 can only be created by a juridical act and states,

“Building restrictions may be established only by juridical act executed by the

owner of an immovable or by all owners of the affected immovables. Once

established, building restrictions may be amended or terminated as provided in this

Title.”

The trial court found that the building restrictions governing the ten one-acre

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lots at issue comported with the requirements of La.Civ.Code art. 775 and did have

a “general plan.” In its ruling the trial court stated:

Building restrictions may be created only by juritical [sic] act under
Civil Code article 776. That article does not require any particular
form for the establishment of the building restrictions. It is sufficient
that the document establishing the restrictions be filed in the registry
in some form at the time the developer conveyed the property. The
fact that no subdivision plat was of record when the building
restriction was created does not affect the validity of the restrictions.
That‟s a particular case that stood for that proposition, but in this case
the proposed subdivision plat was filed in the conveyance records.
The plat was of record when the 10 identical lots were deed restricted
with the same restrictions. The fact that the subdivision was never
formally adopted or formally approved does not affect the validity of
the restrictions, and the restrictions show a general plan to maintain
the character of the neighborhood. As far as there being a general
plan, I do find that there was a general plan with regard to those
restrictions.

The record supports the trial court‟s findings that the plat of the ten one-acre

lots developed by Mr. Moffett was filed in 1996 in the conveyance records in the

registry of court, and all of the original deeds to the ten one-acre lots contained the

same identical building restrictions. These restrictions provide a general plan that

envisioned, as stated in Mr. Moffett‟s affidavit, “big homesteads with large front

yards, among other specifications. I wanted the owners of these lots to maintain

the standards[] and uniformity specified in the deed restrictions in perpetuity.”

Thus, we find no error of law in the trial court‟s determination that a general

plan, pursuant to La.Civ.Code art. 775, was in place at the time of the original

filing of the Hijazis‟ declaratory judgment.

The building restrictions are binding on subsequent owners whether or not

they are contained in the act of transfer. La.Civ.Code art. 776, comment (c),

Fitzwater v. Walker, 281 So.2d 790 (La.App. 3 Cir. 1973). At the time of their

purchase of lot one and two in 1999, the Hijazis were, by virtue of the public

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records doctrine, charged with constructive notice of the building restrictions. Thus,

the Hijazis‟ assignment of error one is without merit.

Abandonment of Deed Restrictions

The Hijazis‟ second assignment of error focuses on Ms. Dentler, the owner of

four lots, numbers three through six, which are contiguous to the Hijazis‟ lots one

and two. The Hijazis contend Ms. Dentler has “continuously violated the

restrictions for a period in excess of three years causing them to be abandoned.”

Abandonment of the general plan usually requires a large number of

violations of all or most restrictions, which leaves the affected area free of all

restrictions. La.Civ.Code art. 782; Guyton v. Yancey, 240 So.2d 794 (La.App. 2 Cir.

1960). The trial court correctly concluded, “So the only thing that really would

allow the Hijazis to build the patio homes that they want to build would be if all

the restrictions were abandoned[,] and I don‟t find that the entire plan was

abandoned.”

In order for the Hijazis to construct patio homes that are less than the 2,500

square foot minimum and to place those homes less than the 175 foot mandatory

setback from the front of the property, only violations on property subject to the

same restrictions are considered in determining the question of abandonment.

Edwards v. Wiseman, 3 So.2d 655 (La.App. 2 Cir. 1941). Thus, even a change of

the neighborhood from residential to commercial would not affect restrictions that

relate to a setback from property lines or the required minimum size of the

dwelling on the property. Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 (1942).

However the trial court took great care in addressing the issues of abandonment.

The trial court in its original ruling on the permanent injunction brought by

the neighborhood owners, as well as its ruling denying the motion for new trial by

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the Hijazis, cited both La.Civ.Code art. 782, and Gwatney v. Miller, 371 So.2d

1355 (La.App. 3 Cir. 1979). The trial court found both the code article and case

law controlled a determination of the abandonment of building restrictions and,

more particularly, the determination of whether by conducting a commercial

business from her single family home, Ms. Dentler violated building restriction one.

Louisiana Civil Code Article 782 provides:

Building restrictions terminate by abandonment of the whole
plan or by a general abandonment of a particular restriction. When
the entire plan is abandoned the affected area is freed of all
restrictions; when a particular restriction is abandoned, the affected
area is freed of that restriction only.

The trial court also cited Gwatney for the proposition that, “It is not every

violation of a building restriction which will constitute its abandonment.

Insubstantial, technical or infrequent violations which do not manifest an intent to

subvert the original plan or scheme of development will not constitute an

abandonment of the restrictions.” Gwatney, 371 So.2d at 1361. In Ritter v.

Fabacher, 517 So.2d 914, 916 (La.App. 3 Cir. 1987), quoting Gwatney, the court

held that whether there has been acquiescence in a violation of a building

restriction “sufficient to defeat its enforcement[,] depends on the circumstances of

the case, including particularly the character, materiality and number of the alleged

violations.”

In this case the trial court stated, “It appears that the intent of the single

family, residential-only provision, of these restrictions was to minimize

neighborhood traffic and to encourage conformity.” The Hijazis contend that Ms.

Dentler‟s work as an artist has violated the building restrictions to such an extent

that all the building restrictions should be abandoned. We do not agree.

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The record reflects Ms. Dentler is a local artist with a home art studio in her

approximately 13,000 square foot home in which she paints and also illustrates

children‟s books. In addition, she owns the Gallery by the Lake, located at 106

Pryce Street, Lake Charles, Louisiana. The gallery opened in 1991 and is an

approximately 8,000 square foot space in downtown Lake Charles. The gallery is

in the Charlestown Cultural District, and any sales of original art from the gallery

are sales tax free. Ms. Dentler is a widow, so due to security issues and the tax

exemption enjoyed by the gallery, she sells and stores her paintings in her

downtown gallery only.

Testimony at trial on the merits and in the motion for new trial indicated that

Ms. Dentler does have an internet site that lists her home address and phone

number. However, she encourages potential customers to visit her in the gallery.

Almost all of the sales via the internet are to out of state buyers requiring no

personal contact, as the art works are shipped directly to the purchaser.

Ms. Dentler did testify that she might have three or four potential buyers at

her home in the period of a year, but there was no testimony at trial that any of her

neighbors ever observed any commercial activities at Ms. Dentler home. With the

small number of potential buyers, it would seem impossible for any neighbor to

distinguish a potential buyer from a family member or friend.

In addition, although the Hijazis urge the presence of a “No Parking” sign in

Ms. Dentler‟s driveway was due to the large amount of traffic at her home, the

record contains no testimony to support this contention. In fact, the sign on her

driveway reads: “Private Property No Trespassing No Parking[,]” and is hardly an

invitation to shop at a commercial enterprise or to put any of the neighbors on

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notice that Ms. Dentler might have been violating a building restriction by

operating a commercial enterprise.

The record reflects that the majority of the February 22, 2012 hearing on the

merits of the permanent injunction was devoted to the commercial activities of Ms.

Dentler. The trial court, in its original ruling granting the permanent injunction,

classified Ms. Dentler‟s business activities as a “hobby.” However, in its ruling

denying the Hijazis‟ motion for new trial, the trial court determined that there was

“a business that‟s clearly being run out of Ms. Dentler‟s home.” The trial court, in

relying on Gwatney, further stated, “I don‟t find that this rises to the level of a

violation that would under the law be considered that the other property owners

have demonstrated an intent to abandon this provision[,]” i.e., a single family

residential development.

The trial court in its ruling on the Hijazis‟ motion for new trial quoted

extensively from Gwatney. In Gwatney, one of the residents was attempting to

store various pieces of “street fair” equipment on a lot in a residential

neighborhood. The other neighbors objected, and a panel of this circuit found that

despite commercial activity in the neighborhood, which included the selling of real

estate, shrimp, and tomato plants, the advertising of a concrete business with a

home phone number, and the presence of a school bus on one property, these few

violations did not manifest an intention to abandon the plan of development,

considering the sales were periodic, and none of the parties relied on these sporadic

sales for a living.

In comparing Gwatney to the case at issue, the trial court also focused on

the sporadic nature of the sales of artwork by Ms. Dentler and her testimony that

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she did not rely on the sale of her artwork for her livelihood. In addition, the trial

court also found:

It‟s clearly a business run out of her home, but I think the
outward manifestation is the key from what I can tell under this
Gwatney case. There has to be some outward manifestation of this
business or the nonresidential activities taking place on theses lots.

And because I don‟t find there is any appreciable outward
manifestation of nonresidential activities taking place[,] I‟m going to
deny the Motion For New Trial.

The Hijazis‟ second assignment of error, based on the commercial business

activities of Ms. Dentler, is without merit.

The Garage Apartments

The Hijazis also urge in their second assignment of error that Ms. Dentler‟s

art studio somehow violates the building restrictions. They argue that it somehow

violates either restriction number one, requiring the homes constitute a single

family residence, or restriction four, which allows garage apartments over the

required minimum two car garage, with either family members or servants allowed

to occupy the apartments. The neighborhood owners urge that this issue was

raised for the first time on appeal and object.

It appears from the trial court‟s rulings that it, too, was unsure whether the

issue of a garage apartment above the artist studio instead of over the four car

garage was before the court. The trial court in its original ruling found that Ms.

Dentler indeed did have two garage apartments occupied by her “hired help,” as

allowed by building restriction number four. In addition, the trial court correctly

found the “living quarters or servant[‟s] quarters” were exempted from the single

family requirement.

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In the ruling on the motion for new trial, the trial court addressed the

apartment issue in further detail:

The only other restriction that appeared to this Court that may
have been violated, based on Ms. Dentler‟s testimony, that no one has
really argued to speak of, is that the building restrictions indicate that
it‟s supposed to be a single family residential, except it makes an
exception for garage apartments where you can have servant quarters
or family members living there.

Ms. Dentler testified she has, apparently, two apartments. One
above the garage and then one above the art studio where she has her
servant‟s quarters.

And because there has not been any definitive testimony as far
as where the location of the art studio in relation to the garage,
whether the one above the art studio could be considered a garage
apartment or not--which would violate the single family residence
provision.

....

And I don‟t find that there is enough evidence with regard to
the multifamily use with regard to the garage apartment issue and
whether the apartment over her art studio would be considered another
violation. I don‟t think there is enough evidence on that to really
make a determination whether that‟s a violation.

The trial court correctly found the record did not contain the necessary

testimony for a determination of the issue of whether the apartment over the art

studio was in a different location than the garage apartment. Restriction four does

use the term “garage apartments,” plural, thus contemplating more than one

apartment. The Hijazis‟ assignment of error on this issue is without merit.

DISPOSITION

For the forgoing reasons, we affirm the judgment of the trial court finding

the recorded building restrictions to be in full force and effect, enforceable, and not

abandoned. We affirm the trial court judgment making permanent the preliminary

injunction issued on April 21, 2012, in favor of the defendants/plaintiffs-in-

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reconvention, Anne Schaefer Dentler, Bradley Nelson, Karen Nelson, Timothy

O‟Dowd and Maria O‟Dowd and intervenor Worth Scott Moffett, requiring

defendants-in-reconvention Fouad Hijazi and Rimi Elsabeth Hijazi to cease

activities in contravention of such building restrictions and to remove any

construction violating the building restrictions. All costs of this appeal are

assessed against plaintiffs/defendants-in-reconvention, Fouad Hijazi and Rimi

Elsabeth Hijazi.

AFFIRMED.

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