Mark and Jennifer McKay v. Bennett Fontenot

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-690

MARK AND JENNIFER MCKAY, ET AL.

VERSUS

BENNETT FONTENOT

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20220615
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

**********

JONATHAN W. PERRY
JUDGE

**********

Court composed of Shannon J. Gremillion, Jonathan W. Perry, and Gary J. Ortego,
Judges.

REVERSED AND REMANDED.

Lawrence C. Billeaud
706 West University Avenue
Lafayette, Louisiana 70506
(337) 266-2055
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Mark and Jennifer McKay, et al.

Emile Joseph, Jr.
Robert A. Robertson
Allen & Gooch, A Law Corporation
Post Office Box 81129
Lafayette, Louisiana 70508
(337) 291-1310
COUNSEL FOR DEFENDANTS/APPELLEES:
Bennett and Alden Fontenot

PERRY, Judge.

Do residents of a subdivision in Lafayette, Louisiana, have the right to

institute a suit against neighbors for allegedly violating subdivision covenants,

municipal flood ordinances, and state law? Plaintiffs appeal the dismissal of their

claims on a peremptory exception of no right of action. After conducting a de novo

review, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On February 7, 2022, twenty-two residents (“Plaintiffs”)1 of Whittington Oaks

Subdivision filed a Petition for Injunction and Damages against Bennett and Alden

Fontenot (“Defendants”), the owners of Lot 403 in the aforesaid subdivision.

Plaintiffs’ petition declared Defendants’ deposited “hundreds of dump truck loads

of dirt” onto their property such that it “raise[d] the level of their respective lot over

six feet above the pre-existing and historic level of the lot, to a maximum of ten feet

above the pre-existing and historic level of the sloping lot.” Plaintiffs alleged the

“deposit of dirt” onto Defendants’ property “constitutes a nuisance per se under

Louisiana law[,]” which will effectively “divert the historic flow of water across this

lot and will push or divert water onto [Defendants’] neighbor’s property in violation

of Louisiana law relative to the diversion of water onto a neighbor’s property and

relative to prohibitions of blocking the natural flow of water.” Plaintiffs contend

Defendants violated neighborhood covenants which prohibit the creation of a

nuisance. Plaintiffs further alleged that “the raising of this lot is in direct violation

of . . . Lafayette’s ‘Zero Net Fill’ Ordinance” and that said violation “serves as

further legal reason to order that the lot be returned to its original condition and

elevation above sea level.”

1
Plaintiffs’ petition states Mark and Jennifer McKay reside at 209 Thibodeaux Drive,
which is adjacent to Defendants’ property at 213 Thibodeaux Drive, and the remaining plaintiffs
own lots within Whittington Oaks Subdivision.

Defendants filed Peremptory Exceptions of No Right of Action and No Cause

of Action, and a Dilatory Exception of Prematurity. Defendants contended that

Plaintiffs failed to allege they have incurred actual damages, which is required

before a party has a right to seek and obtain injunctive relief in accordance with

La.Civ.Code art. 667 and La.Code Civ.P. art. 3601. Defendants also asserted that

because Plaintiffs have not incurred actual damages that would qualify as irreparable

injuries, Plaintiffs’ claims for injunctive relief are premature.

The trial court held a hearing on the exceptions and, after taking the matter

under advisement, issued a judgment on July 28, 2022, sustaining Defendants’

exception of no right of action.2 On August 17, 2022, a second judgment was issued

clarifying that Plaintiffs’ claims were dismissed without prejudice.

APPELLANTS’ ASSIGNMENTS OF ERROR

Plaintiffs appeal asserting five assignments of error:

1. Plaintiffs have a right of action to seek an injunction for the
violation of LCG Flood Control Ordinances, for violation of state
law and/or for violation of subdivision covenants.

2. Defendants’ deposit of approximately 200 dump truck loads of
dirt onto a lot within a special flood hazard area after November
1, 2017, is a violation of LCG’s zero net fill ordinances.

3. Defendants’ deposit of approximately 200 dump truck loads of
dirt onto a subdivision lot constitutes a nuisance in violation of
the Whittington Oaks Subdivision Covenants.

4. The trial court committed manifest error in throwing out
Plaintiffs[’] lawsuit.

5. The factual findings and legal analysis of the district court are
manifestly erroneous.

2
In view of its ruling, the trial court did not address the remaining exceptions of no cause
of action and prematurity. In its judgment dated July 28, 2022, the trial court declared,
“Considering the ruling on the Exception of No Right of Action, this court does not find it
necessary to address the remaining Exceptions of No Cause of Action and Prematurity.” The trial
court’s judgment dated August 17, 2022, also declared, in pertinent part, “the Peremptory
Exception of No Right of Action filed by Defendants is sustained; and, as a result, all other
exceptions are moot[.]”

2

APPELLANTS’ ARGUMENTS

Plaintiffs contend the trial court erred in sustaining Defendants’ peremptory

exception of no right of action. They assert their petition clearly reflects that they

all live in Whittington Oaks Subdivision and presumably all drive on Thibodeaux

Drive. Thus, each plaintiff has the right to seek judicial review of conduct they

believe has the effect of blocking a natural servitude, flooding their nearby street

and/or causing a nuisance due to the deposit of dirt in what is historically the natural

servitude at the bottom of the hill between Thibodeaux Drive and the Vermilion

River.

APPELLEES’ POSITION

Defendants contend the trial court did not err in sustaining their peremptory

exception of no right of action because Plaintiffs’ petition seeks does not seek

injunctive relief through summary proceeding and does not include a prayer to

recover actual and real damages. Defendants allege Plaintiffs waived their claims

for injunctive relief before the trial court and failed to preserve for appeal the specific

claim that Plaintiffs have a right to seek injunctive relief against Defendants. They

further argue Plaintiffs clearly do not have a right of action to seek damages because

Plaintiffs have not incurred actual damages.

DISCUSSION

The peremptory exception of no right of action, La.Code Civ.P. art.

927(A)(6), is based on La.Code Civ.P. art. 681, which provides that “an action can

be brought only by a person having a real or actual interest which he asserts.” “The

function of an exception of no right of action is a determination of whether plaintiff

belongs to the class of persons to whom the law grants the cause of action asserted

in the petition.” Badeaux v. Southwest Computer Bureau, Inc., 05-612, p. 6

(La. 3/17/06), 929 So.2d 1211, 1217. The exception questions “whether the plaintiff

3

in the particular case is a member of the class of persons that has a legal interest in

the subject matter of the litigation.” Id.

Appellate review of a trial court’s decision on an exception of no right of

action is de novo because it presents legal questions—the determination of whether

a plaintiff has a right of action is a question of law. Guidry v. Ave Maria Rosary &

Cenacle, Inc., 21-507 (La.App. 3 Cir. 6/1/22), 341 So.3d 779. “When evidence is

introduced in support of or in opposition to the exception, however, a trial court’s

findings of fact are subject to the manifest error-clearly wrong standard of review.”

Id. at 797 (quoting Rain CII Carbon, LLC v. Turner Indus. Grp., LLC, 19-403

(La.App. 3 Cir. 3/18/20), 297 So.3d 797, writ denied, 20-774 (La. 10/20/20), 303

So.3d 319). Furthermore, though evidence could be considered in determining an

exception of no right of action, whether the defendant may be able to defeat the

plaintiff’s cause of action is immaterial to the determination of an exception of no

right of action. Any evidence admitted which does not relate to the plaintiff’s right

of action must be referred to the merits of the case. See Madisonville State Bank v.

Glick, 05-1372 (La.App. 3 Cir. 5/3/06), 930 So.2d 263.

We first address Defendants’ allegation, and the trial court’s understanding,

that Plaintiffs’ claims for injunctive relief were waived during the hearing on

Defendants’ exceptions. In its judgment, the trial court stated, in part:

It is undisputed that Defendants, Bennett and Alden Fontenot,
purchased Lot 403 in Whittington Oaks Subdivision. At the beginning
of the project, Defendants retained an engineering firm and architect to
design their home. Subsequently a plat was approved and filed in July
2021 regarding a boundary line adjustment which addressed and
contained a zero net fill limitation. In accordance with the Lafayette
City-Parish Consolidated Government ordinances, Defendants
properly obtained and complied with all said ordinances and permits in
connection with the construction of the home. Subsequently, Plaintiffs
filed suit captioned “Petition for Injunction and Damages”.

At the hearing, evidence and testimony were presented
concerning the issue raised by the Exception of No Right of Action.

4

The testimony and evidence presented[] clearly demonstrate the zero
net fill ordinance is not applicable to Defendants[’] property as the lot
was originally platted prior to November 1, 2017. Plaintiffs’ additional
allegations of other unspecified ordinances were neither identified nor
addressed at the hearing. Plaintiffs do not allege to have sustained any
damages or injuries as of the hearing date. Furthermore, Plaintiffs’
counsel by his own admission conceded Plaintiffs are not seeking
injunctive relief which is contrary to the “Petition for Injunction and
Damages”. For the reasons stated above, the Exception of No Right of
Action is hereby granted.

Our review of the record reveals counsel for Plaintiffs stated that a temporary

restraining order via summary process was not being sought, rather, Plaintiffs were

seeking an injunction through ordinary process for Defendants’ alleged violations of

municipal flood ordinances and subdivision covenants. This assertion was repeated

in Plaintiffs’ Post Trial Memorandum in Opposition to Defendants’ Exception.

Thus, we find no merit to Defendants’ allegation that Plaintiffs’ action for injunctive

relief was waived.

Our review of the record further reveals Plaintiffs’ ability to prevail on the

merits was considered rather the question of whether or not Plaintiffs belong to a

particular class for which the law grants a remedy. We find Plaintiffs have

established a right of action in their suit. They clearly belong to the class of persons

that has a legal interest in the subject matter of the litigation at issue. Therefore, the

exception of no right of action should have been overruled.

DECREE

The judgment of the trial court is reversed, Plaintiffs’ claims are reinstated,

and this matter is remanded for further proceedings. All costs of this appeal are

assessed against Defendants/Appellees, Bennett and Alden Fontenot.

REVERSED AND REMANDED.

5