Hidden Grove, LLC v. Richard A. Brauns and Leslie Brauns

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-548

HIDDEN GROVE, LLC

VERSUS

RICHARD A. BRAUNS AND LESLIE BRAUNS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20134910
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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J. LARRY VIDRINE
JUDGE

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Court composed of Shannon J. Gremillion, Candyce G. Perret, and J. Larry Vidrine‫٭‬,
Judges.

REVERSED, REQUEST DENIED.

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‫٭‬Honorable J. Larry Vidrine participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Patrick J. Briney
Brandon M. Verret
Kathryn T. Love
Scott M. Richard
Michael P. Corry, Sr.
Briney, Foret and Corry
413 Travis Street, Suite 200
Post Office Drawer 51367
Lafayette, LA 70505-1367
(337) 237-4070
COUNSEL FOR DEFENDANTS/APPELLANTS:
Leslie Brauns
Richard A. Brauns

Gerald C. DeLaunay
Perrin, Landry and DeLaunay
P. O. Box 53597
Lafayette, LA 70505-2594
(337) 237-8500
COUNSEL FOR PLAINTIFFS/APPELLEES:
Hidden Grove, LLC
Gerald Millard Gossen, Jr.
Jeffrey Mark Gossen

James L. Bullen
Lauren L. Gardner
Bullen & Plauche, LLC
130 South Audubon Boulevard, Suite 102
Lafayette, LA 70501
(337) 237-5900
COUNSEL FOR DEFENDANTS/APPELLANTS:
Leslie Brauns
Richard A. Brauns

VIDRINE, Judge Pro Tempore.

This is a case where a developer of a subdivision filed suit against the

purchasers of a lot, who also acquired a right of first refusal on two adjacent lots.

The developer requests specific performance by the purchasers for their breach of

contract. Alternatively, the developer alleges damages due to the purchasers’

trespass on the adjacent lots and/or unjust enrichment for the purchasers’ excavation

of the soil from the adjacent lots. After finding no basis for the developer’s breach

of contract or trespass claims, the trial court awarded the developer damages under

the theory of unjust enrichment. The purchasers appeal.

FACTS AND PROCEDURAL HISTORY:

This case arises out of the excavation of lots located in The Grove

Subdivision in Lafayette, Louisiana, by Richard and Lisa Brauns (the Braunses).

The Braunses constructed their family home on Lot 14 of The Grove Subdivision.

They purchased Lot 14 from a third party not involved in this litigation on August

30, 2011.

On August 31, 2011, the Braunses purchased Lot 15 from Hidden Grove,

L.L.C. (Hidden Grove), the developer of the subdivision, and were given a right of

first refusal on Lots 16 and 17. The surface elevations of Lots 16 and 17 were

substantially higher than that of Lot 14, where their family home was to be located.

Because the Braunses intended to construct a swimming pool on Lot 15, they sought

to lower the elevation of Lots 16 and 17 to match the elevations of the lots they

purchased due to privacy concerns.

Hidden Grove agreed the Braunses could excavate Lots 16 and 17 to protect

their privacy, but that the Braunses would have to pay for the excavation. Prior to

any written agreement between the parties, excavation began on January 28, 2013,

with permission, given orally, by Hidden Grove.

After the excavation was near completion, disputes arose between the parties.

One dispute was whether the Braunses provided any engineering plans to Hidden

Grove. Another was whether those engineering plans called for the Braunses to

construct a retaining wall on Lots 16 and 17.

According to the Braunses, in July 2013, a member of Hidden Grove told Mr.

Brauns to get off Lot 16 when that member discovered that the Braunses had no

intent to construct a retaining wall on Lots 16 and 17. At this point the Braunses

ceased the excavation. Thereafter, on September 25, 2013, Hidden Grove filed suit

against the Braunses alleging breach of contract and requesting the specific

performance of concluding the excavation and construction of a retaining wall on

Lots 16 and 17. The suit was then amended with Hidden Grove alleging,

alternatively, that it was entitled to recovery under the theory of trespass and/or

unjust enrichment.

After the matter was before this court on three other occasions, a trial was held

beginning on January 21, 2021. After evidence was submitted, the trial court denied

Hidden Grove recovery for breach of contract or trespass. However, the trial court

did find that Hidden Grove successfully proved its entitlement to recovery under

unjust enrichment and rendered judgment in favor of Hidden Grove on that claim.

The Braunses appeal assigning four errors. Hidden Grove answered the

appeal and, in the event this court reverses or modifies the trial court’s judgment

regarding unjust enrichment, that this court grant judgment under breach of contract

or trespass.

ASSIGNMENTS OF ERROR:

1. The trial court erred as a matter of law in holding Hidden Grove
was entitled to the remedy of unjust enrichment because it could
not prove its breach of contract or trespass claims, the fifth
essential element of an unjust enrichment claim.

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2. The trial court erred as a matter of law in failing to recognize
Hidden Grove failed to prove the fourth essential element of a
cause of action for unjust enrichment.

3. The trial court committed manifest error in holding Hidden
Grove “did not agree nor approve that engineering modification
of lot 16.”

4. The trial court committed manifest error in holding Hidden
Grove had been impoverished and the Braunses enriched.

ASSIGNMENT OF ERROR NUMBER ONE:

The Braunses assert, in their first assignment of error, that the trial court erred

as a matter of law in holding that Hidden Grove was entitled to the remedy of unjust

enrichment because it could not prove its breach of contract or trespass claims, the

fifth essential element of an unjust enrichment claim. We agree that the trial court

erred in finding that Hidden Grove proved an essential element to an unjust

enrichment claim, “no other remedy available at law,” but not for the reasoning put

forth by the Braunses.

In Jim Walter Homes, Inc. v. Jessen, 98-1685, pp. 4-5 (La.App. 3 Cir.

3/31/99), 732 So.2d 699, 702, this court stated:

Our Supreme Court has recently reiterated the standard of review
on appeal in Syrie v. Schilhab, 96-1027, p. 4 (La.5/20/97); 693 So.2d
1173, 1176 (citations omitted) as follows:

A court of appeal may not set aside a trial court’s finding
of fact in the absence of “manifest error” or unless it is
“clearly wrong.” This court has announced a two-part test
for the reversal of the factfinder’s determinations: (1) the
appellate court must find from the record that a reasonable
factual basis does not exist for the finding of the trial court,
and (2) the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous). The issue to be resolved by the
reviewing court is not whether the trier of fact is right or
wrong but whether the factfinder’s conclusion was a
reasonable one. . . . The reviewing court must always keep
in mind that if the trial court’s findings are reasonable in
light of the record reviewed in its entirety, the court of
appeal may not reverse, even if convinced that had it been

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sitting as trier of fact, it would have weighed the evidence
differently.

In the present case, [Appellant] urges that another standard of
review is applicable in this case wherein its assignments of error assert
that the trial court made reversible errors of law. Appellate review of a
question of law is simply a decision as to whether the lower court’s
decision is legally correct or incorrect. Ducote v. City of Alexandria,
95-1269 (La.App. 3 Cir. 7/17/96); 677 So.2d 1118. If the trial court’s
decision was based on its erroneous application of law, rather than on a
valid exercise of discretion, the trial court’s decision is not entitled to
deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434
So.2d 1067 (La.1983). In fact, when an appellate court finds that a
reversible error of law or manifest error of material fact was made in
the lower court, it must redetermine the facts de novo from the entire
record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d
840 (La.1989); Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

Louisiana Civil Code article 2298 states:

A person who has been enriched without cause at the expense of
another person is bound to compensate that person. The term “without
cause” is used in this context to exclude cases in which the enrichment
results from a valid juridical act or the law. The remedy declared here
is subsidiary and shall not be available if the law provides another
remedy for the impoverishment or declares a contrary rule.

The amount of compensation due is measured by the extent to
which one has been enriched or the other has been impoverished,
whichever is less.

The extent of the enrichment or impoverishment is measured as
of the time the suit is brought or, according to the circumstances, as of
the time the judgment is rendered.

This court, in Moroux v. Toce, 06-831, 06-832, p. 15 (La.App. 3 Cir 11/2/06),

943 So.2d 1263, 1273, writ denied, 07-117 (La. 3/16/07), 952 So.2d 698, iterated

the five elements of an unjust enrichment claim as follows:

A party seeking to recover pursuant to the theory of unjust
enrichment bears the burden of proving five elements: (1) an
enrichment of the defendant; (2) an impoverishment of the plaintiff;
(3) causation between the enrichment and the impoverishment; (4) an
absence of justification or cause for either the enrichment or the
impoverishment; and (5) no other remedy available at law.

About the fifth element of an unjust enrichment claim, our supreme court states,

“The mere fact that a plaintiff does not successfully pursue another available remedy
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does not give the plaintiff the right to recover under the theory of unjust enrichment.”

Walters v. MedSouth Record Mgmt., LLC, 10-353, p. 2 (La. 6/4/10), 38 So.3d 243,

244.

Here, the Braunses argue the trial court erred as a matter of law in finding

Hidden Grove entitled to unjust enrichment because the trial court found Hidden

Grove could not prove its breach of contract or trespass claims and thus, Hidden

Grove had “no other remedy available at law.” Id. Hidden Grove counters that no

contract remedy existed because the trial court found no contract between the parties

due to no meeting of the minds and no trespass remedy existed because the trial court

found the Braunses were given consent to be on Lots 16 and 17. Therefore,

according to Hidden Grove, the trial court correctly found that it met the fifth criteria

for unjust enrichment, “no other remedy available at law,” not simply because the

two other proposed theories failed, but because the two other theories of recovery

never existed.

First, the Braunses are incorrect that a party alleging entitlement to recovery

based on something other than unjust enrichment necessitates a finding that the same

party’s claim for unjust enrichment must fail. Hidden Grove is correct in that

entitlement to unjust enrichment is dependent on the existence of a remedy in law,

and not precluded because a plaintiff alleges a different remedy in law. Jim Walter

Homes, Inc., 732 So.2d 699. However, the Braunses are correct that the trial court

erroneously found that Hidden Grove met its burden to prove the final element of

unjust enrichment, “no other remedy available at law.”

Louisiana Civil Code Article 2298 provides, “the remedy of unjust enrichment

is subsidiary in nature, and ‘shall not be available if the law provides another

remedy.’” Walters v. MedSouth Record Mgmt., LLC., 10-351, p. 2 (La. 6/4/10), 38

So.3d 245, 246 (quoting Carriere v. Bank of Louisiana, 95-3058, p. 17
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(La.12/13/96), 702 So.2d 648, 671 (emphasis added). This language is such that a

remedy under unjust enrichment is based in equity as a last resort to fill a lacuna or

gap in the law, i.e., a general factual situation where no applicable law exists.

Therefore, merely because no remedy exists under applicable law for a specific

plaintiff against a specific defendant under the specific facts of a case does not

dictate that the fifth element of unjust enrichment is met. Consideration of the

reasonable actions or inactions of the specific parties in a case is relevant to whether

one proves “no other remedy available at law.” The question is not whether there is

a gap in remedy available under the law as applied to these parties under these facts.

Rather, the question is whether a gap exists because there is no remedy under the

law had the parties acted reasonably and prudently.

Few concepts are as firmly rooted in our statutory law and
jurisprudence as the principle that agreements as to immovable
property must be in writing. To allow litigants to avoid this principle
merely by framing their cause of action in terms of a tort would be
jurisprudentially eradicating a concept as old as the Civil Code itself.
We are aware that this policy may sometimes result in harsh
consequences. However, these consequences were as apparent to the
redactors of the Civil Code as they are to modern legislators.
Nevertheless, the Louisiana legislature has consistently chosen to have
interest in immovable property protected by a steadfast rule of law
rather than the vagaries of an equitable case by case approach.

Ogden v. Ogden, 93-1413, p. 5 (La.App. 3 Cir. 9/21/94), 643 So.2d 245, 248, writ

denied, 94-2539 (La.1/13/95), 648 So.2d 1339.

The trial court found the Braunses were enriched by a reduction of the price

they paid for Lot 15 due to being allowed to change the elevation of Lots 16 and 17.

This finding invokes obligations affecting immovable property, and the law, with

specific requirements that such obligations be reduced to writing, are present to

protect the parties and clearly delineate obligations affecting real property. Hidden

Grove and the Braunses both failed to invoke that protection. Accordingly, allowing

Hidden Grove a remedy in unjust enrichment against the Braunses after its failure to
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use protections available to it in the law is tantamount to circumventing the

applicable law that affords protection to parties by having agreements affecting real

property be reduced to writing. Here, Hidden Grove, as a subdivision developer, is

sophisticated in dealing with immovable property. It knew or should have known to

protect itself by exercising rights demanded of it under applicable law, i.e.,

demanding each parties’ obligations be reduced into writing prior to the excavation

commencing on its immovable property detailing a structure must be constructed on

that property. Their failure to do so creates the fact that it has no remedy available

at law but does not constitute a gap in the law for prudent parties such that equity

demands a remedy.

This situation is analogous to a party whose claim is perempted. Peremption

destroys a claim. La.Civ.Code art. 3458. Thus, it is as if that claim no longer exists.

The party’s failure to protect the existence of that claim cannot be undone by

invoking unjust enrichment. Here, to protect its claim, a party need follow laws that

exist to protect it, i.e., put a contract affecting immovable property in writing. Its

failure to do so does not dictate that unjust enrichment can be used to remedy that

failure.

Accordingly, we find Hidden Grove had a remedy against the Braunses were

it to have acted prudently and properly by following the applicable law. Therefore,

we find that Hidden Grove failed to show the fifth element of entitlement to unjust

enrichment, and we reverse the trial court’s finding that unjust enrichment is

applicable to the case before us.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE AND FOUR:

We find in ASSIGNMENT OF ERROR NUMBER ONE that the trial court

erred in finding Hidden Grove was entitled to unjust enrichment damages against

the Braunses because Hidden Grove failed to prove it had “no other remedy available
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at law,” an essential element of an unjust enrichment claim. This finding pretermits

the remaining assignments of error raised by the Braunses as they all request the

remedy of reversing the trial court’s finding that Hidden Grove was entitled to

damages from them for unjust enrichment.

ANCILLARY MATTER:

Hidden Grove answered the appeal and, in brief, requests that this court grant

it judgment against the Braunses under breach of contract or trespass in the event we

reverse or modify the trial court’s judgment regarding unjust enrichment. We deny

this request.

One essential element of a breach of contract claim is the existence of a

contract. Franklin v. Fountain Group Adjusters, L.L.C., 17-724 (La.App. 3 Cir.

6/6/18), 249 So.3d 84, writ denied, 18-1490 (La. 11/20/18), 256 So.3d 989. Here,

there is no evidence in the record that Hidden Grove produced a contract regarding

a retaining wall on Lots 16 and 17, and Hidden Grove has a burden of proving such

a contract exists.

Further, the trial court found, as fact, that no meeting of the minds occurred

between Hidden Grove and the Braunses regarding the retaining wall. This finding

is supported by the conflicting testimonies of the parties on this issue. Thus, we find

no error by the trial court in denying Hidden Grove’s breach of contract claim based

on a lack of contract in existence.

Additionally, we find no error that Hidden Grove failed to prove entitlement

to damages for trespass from the Braunses. A trespass is an unlawful physical

invasion of the property or possession of another. Gaspard v. St. Martin Parish

Sewerage Dist. # 1, 569 So.2d 1083 (La.App. 3 Cir.1990). A trespasser is “one who

goes upon the property of another without the other’s consent.” Pepper v. Triplet,

03-619 (La.1/21/04), 864 So.2d 181, 197 (quoting Williams v. J. B. Levert Land Co.,
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Inc., 162 So.2d 53, 58 (La.App. 1 Cir.), writ refused, 245 La. 1081, 162 Sp/2d 574

(1964)(emphasis added).

Here, the trial court found the Braunses were given consent to be on Lots 16

and 17. This finding of fact is supported by a multitude of testimonies in the record

and by the fact that the excavation on Lots 16 and 17 was open, obvious, and allowed

by Hidden Grove to near completion prior to Hidden Grove raising issues related to

that excavation. Thus, we find no manifest error by the trial court in denying Hidden

Grove’s claim for trespass.

Given the above, we deny Hidden Grove’s request for judgment against the

Braunses for breach of contract or trespass. The trial court committed no error in

denying Hidden Grove recovery under these two theories.

CONCLUSION:

Richard and Lisa Brauns raise four assignments of error asserting the trial

court erred in granting judgment in favor of Hidden Grove, L.L.C. for unjust

enrichment. Hidden Grove, L.L.C. answers the appeal and requests, in the event this

court reverses or modifies the trial court’s judgment regarding unjust enrichment,

that this court grant judgment under breach of contract or trespass.

We find merit to Richard and Lisa Brauns’ assigned error that the trial court

erred in finding Hidden Grove, L.L.C. met its burden to prove no other remedy

available at law,” an essential element to its claim for unjust enrichment.

As such, we reverse the trial court’s judgment finding Hidden Grove, L.L.C.

entitled to an award for unjust enrichment. Further, we deny Hidden Grove, L.L.C.’s

request for judgment against Richard and Lisa Brauns for breach of contract or

trespass, thereby affirming the trial court’s denial of same. We assess all costs of

this appeal to Hidden Grove, L.L.C.

REVERSED, REQUEST DENIED.
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