JOHNATHAN WHATLEY AND v. VERSUS

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-593

JOHNATHAN WHATLEY AND
KATHERINE NICOLE WHATLEY

VERSUS

DENNIS RAY BEAUGH AND
TERESITA DIANE BACHMEYER ROSAMOND BEAUGH

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2019-3564
HONORABLE SHARON D. WILSON, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of John D. Saunders, Candyce G. Perret, and Jonathan W. Perry,
Judges.

Saunders, J., dissents and assigns written reasons.

AFFIRMED.

Skipper Maurice Drost
Drost Law Firm, LLC
411 Clarence Street
Lake Charles, LA 70601
(337) 436-4546
COUNSEL FOR DEFENDANTS/APPELLANTS:
Dennis Ray Beaugh
Teresita Diane Bachmeyer Rosamond Beaugh

Maurice L. Tynes
Maurice L. Tynes & Associates, PLC
4839 Ihles Rd
Lake Charles, LA 70605
(337) 479-1173
COUNSEL FOR PLAINTIFFS/APPELLEES:
Johnathan Whatley
Katherine Nicole Whatley

PERRET, Judge.

Appellants (“the Beaughs”) appeal the trial court’s determination that they

violated the Restrictive Covenants and Conditions of their subdivision by

constructing or planning to construct a driveway on their west property line instead

of their east property line, entitling their neighbors, Appellees (“the Whatleys”), to

injunctive relief. The Beaughs submit they validly amended the Restrictive

Covenants and Conditions, deleting the driveway location requirement and, thus,

the trial court’s judgment should be reversed. For the following reasons, we affirm

the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND:

The Holbrook Court South Subdivision, from which this dispute arises, is

comprised of five lots. All lots have northern fronts on Holbrook Road. Lots 1

through 4 are rectangular in shape, approximately 5 acres each, and lie adjacent to

one another. Lot 5 is adjacent to Lot 4’s east boundary. Lot 5 is approximately

21.52 acres and forms an irregular L-shape, adjacent to the east property line of

Lot 4, but continues south and west, so that it also forms the southern boundaries

of Lots 1 through 4.

The developer of Holbrook Court South Subdivision, Harry Shaheen

Development, LLC, created “Restrictive Covenants and Conditions” for the

subdivision and recorded those restrictions on November 13, 2017, at File

#3296942, Conveyance Book 4336, Page 682. Pertinent to this case, those

restrictions stated:

Appearer desires to establish certain restrictive covenants and
conditions to apply to all of the lots contained in said Holbrook Court[]
South, such Restrictive Conditions and Covenants to inure to the
property and to bind each and every successive owner of lots, and,
accordingly, Appearer does hereby create and establish the following

restrictive conditions and covenants running with the land for a period
of twenty-five (25) years and for successive ten (10) year periods as
provided in paragraph number 12 hereinafter, to apply in common to
all of Holbrook Court[] South:

....

12) 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 lots in the subdivision, shall be
binding on all persons and shall remain in force and effect for a term
of 25 years. At the end of the initial 25 year term, and at the end of
each successive 10 year term thereafter, unless revoked during the
initial 25 year or successive 10 years by agreement of the owners
representing a majority of the land area affected by these restrictions,
excluding streets and street rights of way, these restrictions shall
renew and extend automatically for a term of 10 years without any
action or documentation whatever provided that at any time during the
initial term, or the successive 10 year terms, the restrictions may be
amended or terminated for the whole for any part of the restricted area
by agreement of the owners representing a majority of the land are
[sic] affected by these restrictions excluding streets and street right of
ways.

13) In addition to all other remedies, these restrictions may
be enforced by mandatory and prohibitory injunctions by any owner
whose land is affected by these restrictions.

....

22) All driveways must be hard surfaced with a minimum of
an aggregate material. All driveways must be along the East property
line of each lot. All driveways shall have a constructed turnaround “T”
shaped driveway, which will allow all vehicles to exit each lot driving
face forward. No vehicle exiting any lot along Holbrook Park Rd[.]
will be allowed to back onto Hollbrook Park Rd.

On April 20, 2018, the Whatleys purchased property from Harry Shaheen

Development, LLC, in the Holbrook Court South Subdivision. The property is

described in the Cash Warranty Deed as follows:

Lot Four (4) of HOLBROOK COURT SOUTH SUBDIVISION, a
subdivision as per plat recorded in Plat Book 53, Page 21 of the
records of Calcasieu Parish, Louisiana, together with all buildings
improvements situated thereon.

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The Whatleys developed a home on Lot 4 and complied with the requirement that

their driveway be constructed on the East property line of their lot.

Approximately one year later, on April 23, 2019, the Beaughs also

purchased property from Harry Shaheen Development, LLC, in the same

subdivision. The Beaughs purchased Lot 5, which is situated to the East of, and

adjacent to, the Whatleys’ property. Evidently, the Beaughs have planned to

construct or have constructed their driveway along the west property line of Lot 5.

Thus, the location or planned location of the Beaughs’ driveway led the

Whatleys to file a petition on July 29, 2019, seeking preliminary and permanent

injunctions prohibiting the Beaughs from constructing their driveway on their west

property line and mandating the driveway be located on the east property line.

Asserting the above stated facts, the Whatleys argued that the location or planned

location of the Beaughs’ driveway violates the Restrictive Covenants and

Conditions of the subdivision.

Prior to answering the suit, on August 26, 2019, the Beaughs filed an

amendment to the Restrictive Covenants and Conditions in the Conveyance

Records that revoked the requirement that all driveways be constructed on the east

property line of each lot. Therefore, in answering the Whatleys’ petition, the

Beaughs argued that they were not in violation of the Restrictive Covenants and

Conditions. The Beaughs further claimed that, pursuant to paragraph 12 of the

restrictions, they had the power to amend the restrictions as owners of a majority of

the land affected by the restrictions.

A hearing on the preliminary injunction was set for September 23, 2019, but

was continued until November 19, 2019. At the hearing, the Whatleys argued that

the Beaughs could not amend the restrictions because whether the Beaughs were

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the majority landowners with power to amend the restrictions was indeterminable

based on the plats and deeds. Specifically, the Whatleys pointed to a plus or minus

symbol after the acreage listed for each lot on the plat. Consequently, the original

restrictions are still controlling, and driveways are required to be constructed on

the east side of the property line.

The trial court heard testimony from three witnesses: Mr. Whatley on behalf

of Plaintiffs, and Mrs. Beaugh and Mr. Harry Shaheen on behalf of Defendants.

Mr. Whatley testified that he was aware of the subdivision restrictions prior to

purchasing Lot 4, and those restrictions, particularly the driveway location

requirement, were one of the reasons he and his wife committed to buying the lot.

Mr. Whatley also testified that the driveways of Lots 1-4 are all located on the east

property lines, whereas the Beaughs have constructed a driveway and culverts on

their west property line.

Mrs. Beaugh testified that she was unaware of the subdivision restrictions at

the time she and her husband purchased the property. After becoming aware of the

restrictions, Mrs. Beaugh stated they amended the restrictions to permit the

construction of their driveway on their west property line.

Mr. Shaheen was called to testify by the Beaughs and asked to interpret

Paragraph 12 of the restrictions regarding amendments. Mr. Shaheen stated that

the restrictions were “boilerplate language that we use in our development and I

really don’t want to be the one to interpret what this actually means.” He also

agreed that the acreage designations for each lot are approximate, but pretty

accurate, and that it “seems” Lot 5 comprises a majority of the land in the

subdivision. The parties also submitted deeds, plats, a surveyor description, google

images, the restrictions, and the amended restrictions into evidence.

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After consideration of the evidence and argument, the trial court granted the

Whatleys a permanent injunction and stated it would “sign a judgment upon

presentation.” The trial court signed a written judgment granting injunctive relief

to the Whatleys on January 6, 2020. Before a written judgment was signed, the

Beaughs filed a motion for new trial on December 10, 2019. The motion for new

trial was heard and denied on February 10, 2020, with the trial court again stating it

would “sign a judgment upon presentation.” The judgment denying the motion for

new trial was signed on February 11, 2020, and notice mailed on March 9, 2020.

On March 5, 2020, the Beaughs filed a Motion and Order for Suspensive

Appeal, which was granted, setting a return date of March 10, 2020, and requiring

the Beaughs to furnish a $1,000.00 bond. On appeal, the Beaughs assign one

assignment of error: the trial court erred in granting the judgment in favor of the

Whatleys.1

DISCUSSION:

Our law distinguishes between prohibitory injunctions and mandatory

injunctions; the former restrains conduct while the later “commands the doing of

some action[.]” Concerned Citizens for Proper Planning, LLC v. Par. of

Tangipahoa, 04-270, p. 7 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664; see also

City of New Orleans v. Bd. of Directors of La. State Museum, 98-1170 (La. 3/2/99),

739 So.2d 748. The injunction sought determines the level of proof required. A

prohibitory injunction only requires a prima facie showing; however, a mandatory

injunction “has the same basic effect as a permanent injunction” and requires a

1
In their opposition, the Whatleys assert in their Statement of the Case and as an Issue
For Review, that this appeal was filed untimely and that the bond was untimely. Appellees do
not expand on these allegations in their Argument but suggest that this court should dismiss the
appeal summarily. We decline do to so, finding nothing in the record to support a finding that
the appeal is untimely.

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showing “by a preponderance of the evidence at an evidentiary hearing that [the

party] is entitled to the preliminary injunction.” Meredith v. I am Music, LLC, 18-

659, pp. 5-6 (La.App. 4 Cir. 2/13/19), 265 So.3d 1143, 1146 (quoting Denta-Max v.

Maxicare La., Inc., 95-2128, p. 3 (La.App. 4 Cir. 3/14/96), 671 So.2d 995, 997).

The Whatleys sought both a permanent and preliminary injunction in their

petition and requested an Order to show cause why the Beaughs “should not be

preliminarily enjoined from constructing a driveway on Lot 5’s west property line,

and mandating construction of a driveway on Lot 5’s east property line.” After the

preliminary injunction hearing, the trial court issued a judgment granting an

injunction in favor of the Whatleys and “prohibiting and enjoining Defendants

from locating or constructing a driveway at any location” other than the east

property line. Additionally, the judgment mandated the removal of any driveway,

or portion thereof, constructed on the west property line of Lot 5. Thus, the

injunction sought was both prohibitory and mandatory, requiring an evidentiary

hearing.

Regarding the standard of review for injunctive relief, this court has said:

A trial court has broad discretion in its decision to grant or deny a
preliminary injunction and that decision will not be disturbed on
review absent an abuse of that discretion. Yokum v. Pat O’Brien’s Bar,
Inc., 12-217 (La.App. 4 Cir. 8/15/12), 99 So.3d 74. “That broad
standard is, of course, based upon a conclusion that the trial court
committed no error of law and was not manifestly erroneous or
clearly wrong in making a factual finding that was necessary to the
proper exercise of its discretion.” Id. at 80.

Deshotels Plantation, LLC v. Torrent Gulf Coast, LLC, 19-750, pp. 3-4 (La.App. 3

Cir. 4/22/20), 297 So.3d 1034, 1037 (emphasis added).

In rendering judgment in this case, the trial court stated the following

reasons for ruling at the hearing:

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And, it’s clear to the Court that the Defendants concede that at
the time this [(the original restriction regarding placement of
driveways on the east property lines)] was a valid restriction, there
would be no need to amend it if they did not feel the restriction was
applicable to them.

So, if the amendment is not valid, the ruling for the Court is
easy. The amendment is not valid. Mr. Whatley should be granted
the relief that he seeks.

So, what’s offered to the Court is the affirmative defense from
the defendants that the restrictions have been amended validly so, thus,
the Beaughs are free to place their driveway in whichever position
they wish to place it because that restriction would no longer apply to
them because of a valid amendment.

I do want to say, just so that the record is clear, I do believe the
testimony of Mr. Whatley that this restriction was important to him
and that was what he bargained for in purchasing the lot that he
purchased in this subdivision and that that was a feature that he did
like.

I also so believe Mr. Shaheen when he said that this was just
some boilerplate language that he put together for there to be a
restriction. And, I’m sure that’s what he did. But it’s still is what
people bargained for when they are purchasing to be in his
neighborhood.

All right. So, what the defendants are relying on is Subsection
12. . . .

....

So, the question for the Court is, and what’s been argued by
both sides, whether or not that is a valid cancellation of the Restriction
22, that’s being relied on by Mr. Whatley?

What’s been argued is a few things, that the Beaughs are single
owners and the plural word owner should mean something.

The Court does not find that argument persuasive because I
think the Beaughs are two people and they are a married couple, but
they are still two people owning community property. So they are
owners in the plural.

The question becomes for this Court whether or not they have a
majority of the land, are they owners representing a majority of the
land affected by these restrictions? And that’s why I asked Mr. Drost
what did he see the plus or minus to mean?

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Because each of the other owners in this subdivision of Lots 1,
2, 3, and 4, have bargained for these restrictions. And, according to
this map, all of them own 5 acres, plus or minus, and the Beaughs
own 21.53 (sic) acres, plus or minus.

When I look at the transferring agreement from the previous
owner to Mr. Shaheen, we’re still not quite at the total.

So, whose burden is it? Whose burden is it to prove to me that
the Beaughs have a majority of ownership? And, what does a plus or
minus mean?

I think that burden falls with the Beaughs to show me that they
have the ability to change these restrictions.

And, if I - - if the minus means something it means that they
don’t have a clear majority because I’m not sure if we’re not 50/50.
And if I’m not sure, that’s not enough for the - - for them to say that
they have met their burden to prove to me that they can make this
change. And if they can’t make the change, then the restriction,
which Mr. Whatley is filing this lawsuit on, is a valid restriction. And
I cannot find that it has been properly changed.

With that finding, I cannot rule that it’s been changed.

On appeal, the Beaughs argue that allegations that the lot acreages are

inconclusive were outside of the scope of the pleadings and should have been

excluded as the Beaughs did not have the opportunity to properly defend the

allegations. We find no merit to this claim. First, the Beaughs raised the issue of

who is a majority landowner in their answer to the petition by alleging that, as

majority landowners, they could amend the restrictions and delete the requirement

that all driveways be located on the east property line. Second, the Beaughs did

not object to the exhibits being admitted as evidence. The exhibits indicate the

acreage of each lot was “plus or minus.” Therefore, we find no error in the trial

court’s consideration of whether the total acreage of each lot was inconclusive.

Additionally, the Beaughs assert on appeal that the allegation that the total

acreage of each lot was inconclusive was purely speculative and based on the

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argument of counsel, not evidence. As to whether the trial court erred in its

determination that the Beaughs did not have a clear majority allowing them to

amend the original restrictions, we consider the exhibits. The evidence suggests

that the acreage comprising a lot is “more or less” the number stated on the plat.

For instance, Plaintiff 1—Subdivision Plat, states in the legal description: “All that

certain tract or parcel of land, containing 41.53 acres, more or less[.]” Exhibit A to

Plaintiff 6—Surveyor description, which includes the deed transferring title to

Harry Shaheen Development, LLC from Crown Pine Timber, also describes the

property as “All that certain tract or parcel of land, containing 41.53 acres, more or

less[.]” Furthermore, Plaintiff 5—Plat, contains the acreage of each lot in the

subdivision. After each lot’s acreage, the plat contains a plus and minus symbol.

As the plat shows, Lots 1 through 4 all contain five acres, plus or minus, for a total

of twenty acres, plus or minus. Lot 5 contains 21.52 acres, plus or minus. Not

only does 21.52 (Lot 5’s approximate acreage) plus 20 (Lots 1 through 4’s

approximate acreage) not add up to 41.53 (the approximate total acreage of the

subdivision), but only a very slight variation in the lot sizes would be needed to tip

the majority out of the hands of the Beaughs. No other evidence or testimony was

introduced to determine with certainty the size of each lot. Based on the record

and evidence presented, we cannot say that the trial court was manifestly erroneous

in determining that the lot acreages were ambiguous.

Accordingly, the trial court was not manifestly erroneous in determining that

the Beaughs did not own a clear majority of the land in the Holbrook Court South

Subdivision and, therefore, did not have the authority to amend the Restrictive

Covenants and Conditions. The trial court properly determined that the original

Restrictive Covenants and Conditions was valid and enforceable, requiring all

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driveways to be constructed on the east property line. We affirm the trial court’s

judgment, granting injunctive relief to the Whatleys. Costs of this appeal are

assessed to Appellants, the Beaughs.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

20-593

JOHNATHAN WHATLEY AND KATHERINE NICOLE WHATLEY
v.
DENNIS RAY BEAUGH AND TERESITA DIANE BACHMEYER
ROSEMOND BEAUGH

Saunders, J., dissents and assigns written reasons.
I respectfully dissent. While I recognize that the burden of proof is on the

Beaughs in this matter, that burden is to show more likely than not that they own a

majority of the acreage in the subdivision. Here, the survey of the subdivision

divides the land into five (5) lots. It shows that four (4) of the five (5) lots contain 5

acres “more or less” and that one lot, Lot 5 owned by the Beaughs, contains 21.52

acres “more or less.”

The only direct evidence on whether Lot 5 contains a majority of the acreage

of the subdivision is the testimony of Mr. Harry Shaheen who, according to the

proposed majority opinion “agreed that the acreage designation for each lot are

approximate, but pretty accurate, and that it ‘seems’ Lot 5 comprises a majority of

the land in the subdivision.” The record is devoid of any evidence contradicting Mr.

Shaheen’s view and devoid of any evidence suggesting that Lot 5 does not constitute

a majority of the land in the subdivision.

In my view, the “more or less” disclaimer on each property description cuts

both ways, and, under the evidence in the record before us, the only conclusion is

that Lot 5 does contain a majority of the acreage in the subdivision. As such, I would

find that the Beaughs did carry their burden of proof and would reverse.

JDS

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