NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CA 0909

LAFITTE HILL NEIGHBORHOOD; PRESERVATION ASSOCIATION, AN

UNINCORPORATED ASSOCIATION

VERSUS

TUPAC DE LA CRUZ IN HIS INDIVIDUAL CAPACITY, AS WELL AS HIS

OFFICIAL CAPACITY AS THE MEMBER MANAGER OF HVACR

SYSTEMS, LLC AND MICHAEL DAVIS, AND THE PLANNING

COMMISSION THROUGH THE PRESIDENT OF THE PLANNING

COMMISSION, ROSSIE WASHINGTON, JR. IN HIS OFFICIAL CAPACITY

AS PRESIDENT OF THE PLANNING COMMISSION AND THE PLANNING

DIRECTOR RYAN HOLCOMB IN HIS OFFICIAL CAPACITY AS PLANNING

DIRECTOR

c/w

2021 CA 0910

MAD1 U BHUSHAN

VERSUS

HVACR SYSTEMS, LLC

Judgment rendered PR 2 7 2022

On Appeal from the

19TH Judicial District Court

East Baton Rouge Parish

State of Louisiana

No. C696482 c/w C697687

Judge Trudy M. White, Presiding

Brett P. Furr Attorneys for Appellants/Plaintiffs

William H. Patrick, IV Sandra Bergeron and Madhu

Baton Rouge, Louisiana Bhushan
Charles A. Schutte, Jr. 

Baton Rouge, Louisiana

Attorney for Appellees/Defendants

Tupac de la Cruz in his individual

capacity, as well as his official

capacity as the member manager of

HVACR Systems, L.L.C. 

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, M. 

PA
HOLDRIDGE, J. 

Petitioners, Sandra Bergeron and Madhu Bhushan, appeal a judgment

granting partial summary judgment in favor of HVACR Systems, LLC (HVACR) 

and denying their motion for summary judgment. For the following reasons, we

reverse the grant of partial summary judgment, deny the motion for summary

judgment, and remand to the trial court for further proceedings. 

BACKGROUND

On March 16, 2020, HVACR acquired Lot 52- A in Lafitte Hills

Subdivision, located in East Baton Rouge Parish. It is undisputed that at the time

of the acquisition, Lot 52- A was subject to written property restrictions for the

subdivision executed on September 3, 1977. The 1977 Property Restrictions were

recorded in the East Baton Rouge Parish public records on October 3, 1977. The

1977 Property Restrictions prohibited the resubdivison of any lot in Lafitte Hills

Subdivision without the written approval of the Architectural Control Committee

ACC). 

On April 7, 2020, HVACR filed its application and a proposed

Resubdivision Map subdividing Lot 52- A into five lots with the Planning

Commission of East Baton Rouge ( Commission). The Commission approved the

resubdivision of Lot 52-A, and the Resubdivision Map was recorded in the East

Baton Rouge Parish public records on May 13, 2020. 

Two lawsuits were filed by homeowners of Lafitte Hills Subdivision seeking

to prevent HVACR from resubdividing Lot 52- A. On May 19, 2020, Lafitte Hills

Neighborhood Preservation Association filed the first lawsuit against HVACR and

a number of other defendants' seeking a declaratory judgment, a temporary

restraining order, preliminary and permanent injunctive relief, and damages for

All defendants except HVACR were dismissed from the litigation. (See p. 27 1) 

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alleged bad faith breach of contract. Sandra Bergeron, a property owner in the

subdivision, was substituted as a plaintiff in that lawsuit on August 5, 2020. 

On July 6, 2020, Madhu Bhushan, also a resident of the subdivision, filed a

petition for a declaratory judgment seeking to declare the Property Restrictions

valid and binding against Lot 52-A and a judgment decreeing that HVACR is

prohibited from resubdividing Lot 52-A without complying with the Property

Restrictions. Mrs. Bergeron later filed an amended petition adopting the allegations

contained in Mrs. Bhushan' s petition, and both lawsuits against HVACR were

consolidated by the trial court on August 31, 2020.2

Petitioners urged that the 1977 Property Restrictions expressly prohibited

resubdivision of Lot 52-A. Specifically, they relied on Article 3 of the Property

Restrictions, which provides as follows: 

These restrictions prohibit a resubdivision of any lots from the

dimensions other than those shown on the official recorded plat

of LAFITTE HILL SUBDIVISION, lots one ( 1) through fiftytwo ( 52), inclusive, without the written consent of the

Architectural Control Committee. 

It is undisputed that HVACR did not seek approval of the ACC prior to attempting

to resubdivide Lot 52-A. 

On March 8, 2021, HVACR filed a motion for partial summary judgment

seeking a judgment in its favor declaring that it did not violate the Property

Restrictions by resubdividing Lot 52-A into five lots. Therein, HVACR insisted

that it did not need the approval of the ACC to resubdivide Lot 52- A because at the

time it acquired and sought to subdivide Lot 52-A, there was no ACC in existence

or functioning as contemplated by the 1977 Property Restrictions. HVACR relied

on Article 12 of the 1977 Property Restrictions which states: 

2 HVACR filed a reconventional demand against Mrs. Bergeron, seeking to recover damages

based on her alleged defamatory statements and violations of HVACR' s property rights. This

reconventional demand is pending in the trial court and is not at issue in this appeal. 

4
The Architectural Committee is composed of: 

a. Dr. Nathan Shlechter

b. Richard D. Shaffett

c. Keith D. Jones

A majority of the committee may designate a representative to act for

it. In the event of the death or resignation of any member of the

committee, the remaining members shall have full authority to

designate a successor. Neither the members of the committee, nor its

designative representative shall be entitled to any compensation for

services performed pursuant to this covenant. At any time the then

recorded owners of a majority of the lots shall have the power through

a duly recorded written instrument, to change the membership of the

committee or restore it to any of its powers and duties. 

In its motion for summary judgment, HVACR insisted that in order to prove

the existence of any obligation on its part to obtain approval of the ACC to

subdivide Lot 52-A under Article 3 of the Property Restrictions, petitioners had the

burden of demonstrating that the ACC existed and was functioning in 2020 when

HVCAR purchased its lot and sought to subdivide it. However, HVACR

maintained, petitioners could not meet this burden. HVACR urged that the use of

the ACC to regulate the development of the property from 1977- 2000 was

abandoned many years ago when the original members resigned and the owners of

the lots in the subdivisions failed to appoint successor members to the ACC to

maintain its existence and operation. Further, HVACR argued that the Property

Restrictions required an instrument be executed in proper form by a majority of the

owners and recorded in the public records appointing ACC members to maintain

the ACC; however, no such instrument was executed or recorded. Thus, HVACR

maintained, the need for written approval of the ACC no longer applied as a matter

of law, entitling it to a judgment declaring that the Property Restrictions did not

prohibit it from resubdividing Lot 52-A. 

In support of its motion, HVACR submitted the following documents: ( 1) 

the Act of Sale by which it acquired Lot 52-A; ( 2) HVACR' s application to the

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Planning Committee seeking permission to subdivide the 1. 716 acre lot into five

lots or less; ( 3) the 1977 Property Restrictions; ( 4) a 1982 instrument recorded in

the East Baton Rouge Parish public records; ( 5) petitioners' answers to

interrogatories; ( 6) and the affidavit of Tupac de la Cruz. 

On April 7, 2021, petitioners filed a motion for summary judgment, in which

they asserted that they are entitled to judgment as a matter of law: ( 1) recognizing

the validity of the provision of the Property Restrictions prohibiting resubdivision; 

2) declaring that the Property Restriction prohibiting resubdivision is binding on

HVACR; ( 3) declaring the purported resubdivision of Lot 52-A invalid, null and

void, and of no effect whatsoever; and ( 4) dismissing HVACR' s reconventional

demand against Bergeron, with prejudice, at HVACR' s expense. 

In support of their motion, petitioners submitted the following

documentation: ( 1) HVACR' s discovery responses; ( 2) the 1977 Property

Restrictions; ( 3) HVACR' s application for resubdivision and the resubdivision

map; ( 4) minutes of the August 1, 2017 meeting of the subdivision; ( 5) a

partnership agreement of the subdivision; 6) the affidavits of Joseph F. Accardo, 

William Bergeron, and Mrs. Bhushan, and ( 7) certified copies of an April 24, 2020

letter sent to Mr. de la Cruz and various acts of sale. 

Petitioners argued that Article 3 of the Property Restrictions clearly and

expressly prohibit resubdivision of lots in Lafitte Hill without the written consent

of the ACC. Petitioners pointed out that HVACR admitted that the Property

Restrictions were on file when it purchased Lot 52-A and that it did not seek

approval to resubdivide the lot from ACC. Accordingly, petitioners submitted, 

HVACR' s attempt to resubdivide Lot 52-A is a clear violation of the explicit

language of the Property Restrictions, and there is no genuine issue of material fact

on this question, entitling petitioners to judgment as a matter of law. 
Secondly, petitioners insisted that the existence or the nonexistence of the

ACC is immaterial to the enforceability of the Property Restrictions. Petitioners

relied on case law establishing that once a violation of property restriction is

established, the burden of proof is on the defendant to prove the termination or

abandonment of a restriction. Petitioners maintained that there is no factual

support for any argument that Article 3 had been abandoned, and posited that even

if the members of the ACC were improperly appointed, which they denied, the

Property Restrictions remain valid in spite of that technical violation. Thus, 

petitioners urged that HVACR could not meet its burden of proving that Article 3

had been abandoned, and at a minimum, there existed a disputed factual issue

regarding the existence of the ACC, precluding summary judgment in favor of

HVACR. 

In opposition to HVACR' s motion for summary judgment, petitioners

adopted and incorporated by reference all of their arguments, memoranda, 

attachments and exhibits in their motion for summary judgment and all exhibits

attached to HVACR' s motion for summary judgment. In opposition to petitioners' 

motion, HVACR relied on the evidence it submitted in support of its motion along

with an additional affidavit. 

During a hearing on the motions for summary judgment, the trial court

opined that a duly recorded written instrument authorizing the ACC to act is

required by Article 12 of the Property Restrictions. The court acknowledged that

certain members may have been acting as members of the ACC; however, there

was no written instrument duly recorded in the public records. The court

concluded therefore that HVACR did not violate the Property Restrictions by

resubdividing Lot 52-A and granted summary judgment in its favor. For the same

reason, the trial court denied petitioners' motion for summary judgment. 

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On May 26, 2021, the trial court signed a written judgment in accordance

with those rulings. Specifically, the trial court declared that HVACR did not

violate the Property Restrictions by subdividing Lot 52- A into five lots and

dismissed petitioners' petition for declaratory judgment, injunctive relief, damages, 

and breach of contract. The court also denied petitioners' motion for summary

judgment and reserved HVACR' s rights to proceed against Mrs. Bergeron in its

reconventional demand. The trial court certified the judgment as a final judgment

for immediate appeal in accordance with La. C. C.P. art. 1915B, determining that

there was no just reason for the delay of the appeal.' 

Petitioners appealed the granting of the motion for summary judgment in

favor of HVACR. In connection with this appeal, they also challenge the trial

court' s denial of their motion for summary judgment. 

DISCUSSION

Summary Judgment

After an opportunity for adequate discovery, summary judgment shall be

granted if the motion, memorandum, and supporting documents show that there is

no genuine issue of material fact and that the mover is entitled to judgment as a

matter of law. La. C. C.P. art. 966A(3). Appellate courts review summary

judgments de novo, using the same criteria that govern the trial court' s

consideration of whether summary judgment is appropriate. A genuine issue is one

as to which reasonable persons could disagree; if reasonable persons could reach

only one conclusion, summary judgment is appropriate. Collins v. Franciscan

Missionaries of Our Lady Health System, Inc., 2019-0577 ( La. App. 1St Cir. 

Certification of the partial summary judgment pursuant to La. C. C. P. art. 1915B was not necessary, as the

judgment granting HVACR' s motion for summary judgment and dismissing all of petitioners' claims and causes of

action was final and immediately appealable under La. C. C.P. art. 1915A( 1) and ( 3). The interlocutory ruling

denying petitioners' motion for summary judgement is also reviewable on appeal in connection with the review of

the appealable judgment. See Bourg v. Safeway Insurance Company of Louisiana, 2019-0270 ( La. App. I" Cir, 

3/ 5/ 20), 300 So.3d 881, 887. 

g
2/ 21/ 20), 298 So.3d 191, 194- 95, writ denied, 2020- 00480 ( La. 6/ 22/ 20), 297

So. 3d 773. A fact is " material" when its existence or non- existence may be

essential to plaintiff' s cause of action under the applicable theory of recovery. A

material fact is one that would matter at a trial on the merits. Any doubt as to a

dispute regarding a material issue of fact must be resolved against granting the

motion and in favor of trial on the merits. Collins, 298 So. 3d at 195. 

The Code of Civil Procedure places the burden of proof on the party filing

the motion for summary judgment. La. C.C.P. art. 9661)( 1). The mover can meet

this burden by filing supporting documentary evidence, and the mover' s supporting

documents must prove the essential facts to carry the mover' s burden. Thus, in

deciding a motion for summary judgment, it must first be determined whether the

supporting documents presented by the mover are sufficient to resolve all material

factual issues. Jenkins v. Hernandez, 2019- 0874 ( La. App. 1St Cir. 6/ 3/ 20), 305

So. 3d 365, 370- 71, writ denied, 2020-00835 ( La. 10/ 20/ 20), 303 So.3d 315. 

Once the mover demonstrates the absence of factual support for one or more

elements essential to the adverse party' s claim, the burden shifts to the non-moving

party to produce factual support, through the use of proper documentary evidence

attached to its opposition, which establishes the existence of a genuine issue of

material fact or that the mover is not entitled to judgment as a matter of law. 

Jenkins, 305 So. 3d at 371. If the non-moving party fails to prove the existence of

a genuine issue of material fact, La. C. C.P. art. 966D( 1) mandates the granting of

the motion for summary judgment. Jenkins, 305 So.3d at 371. 

Evidence on the Motion for Summary Judgment

Documentary evidence submitted by HVACR in support of its motion for

summary judgment included petitioners' answers to interrogatories, in which they

identified the owners of subdivision lots in 2020 and set forth the history regarding

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the ACC membership from 1977 through August 1, 2017, along with

documentation supporting the membership changes. According to the evidence, the

original members of the ACC served from 1977 through 1982. On March 15, 

1982, a majority of the members of the existing property owners of the subdivision

executed a written document dismissing the existing members of the ACC as per

Section 12 of the Property Restrictions. This document, which was recorded in the

East Baton Rouge Parish public records, states that Gordon P. Boutwell, Jr. and

John W. Mundinger, Jr. were appointed to act as members of the ACC until a

meeting of the property owners was held. In 1983, three additional individuals

were appointed as members of the ACC; in 1986, two members resigned from the

ACC and another person joined the ACC; in 1992, 1997, and 2008, three members

resigned or died, and from 2008 to 2017, three persons served on the ACC until a

meeting was held by a majority of the property owners on August 1, 2017, electing

Joseph Accardo, Aaron Bass, and Thomas Vince to the ACC; later that year, Mr. 

Vince resigned and John Thomas " Pete" David was appointed to the ACC. 

In his affidavit, Mr. de la Cruz attested that at no time prior to or after the

closing of the purchase of Lot 52-A has HVACR been provided with an instrument

signed by a majority of owners of lots in the subdivision and recorded in the public

records amending the Property Restrictions to appoint members to the ACC to

serve during the calendar year 2020 or any other year. He further attested that

HVACR could not locate any person duly appointed in accordance with the

Restrictions serving on the ACC during 2020 in order to obtain written consent

prior to seeking to subdivide Lot 52- A. Mr. de la Cruz also stated that HVACR' s

subdivision application dividing Lot 52-A into five lots was approved by the

Planning Commission and the Resubdivision Map signed by the Planning

Commission was recorded in the public records. Lastly, Mr. de la Cruz attested

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that he could not secure written consent of the ACC to subdivide Lot 52-A because

the ACC had no duly appointed members and was not functioning at any time in

2020. 

In a second affidavit offered by HVACR in opposition to the petitioners' 

motion for summary judgment, Mr. de la Cruz made various attestations regarding

HVACR' s intent to comply with the Property Restrictions regarding construction

of the five planned residences and its intent to exercise its right to build the houses

on the subdivided lots complying with those restrictions. 

In opposition to HVACR' s motion and in support of its motion for summary

judgment, petitioners submitted the affidavit of Mr. Accardo, one of the owners of

a lot in Lafitte Hill Subdivision, who made the following attestations regarding the

history of the ACC: On August 1, 2017, he, Mr. Vince, and Mr. Bass were

appointed to the ACC at a meeting of the majority of the property owners of the

subdivision, including prior members of the ACC. On September 17, 2017, Mr. 

Vince resigned from the ACC and Mr. David was appointed to replace him. In

early 2020, the ACC became aware that Lot 52-A had been purchased by HVACR

and that HVACR had applied to the Planning Commission to resubdivide that lot

into five lots. HVACR did not provide notice to the owners of the subdivision nor

did it seek approval of the ACC prior to submitting its application. The ACC

contacted Mr. de la Cruz to inform him that the proposed resubdivision was a

violation of the Property Restrictions and one of the property owners, William

Bergeron, sent Mr. de la Cruz a certified letter informing him of the violation. 

Notwithstanding communications from both the ACC and residents of the

subdivision, HVACR proceeded to have lot 52- A subdivided. Mr. Bergeron

submitted an affidavit identifying the certified letter he sent to Mr. de la Cruz

informing him ofthe violation ofthe Property Restrictions. 

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Minutes of an August 1, 2017 meeting of the Lafitte Hill Subdivision

owners reflect that there was a recommendation for the election of three new

members of the ACC, nominations were taken, and of those nominated, three were

chosen by written ballot: Mr. Accardo, Mr. Bass, and Mr. Vince. Mrs. Bergeron

attested that she took minutes at the August 1, 2017 meeting, whereupon the

members of the ACC were appointed. She attested that two members who were on

the ACC prior to that meeting attended the August 1, 2017 meeting. 

In its discovery responses, HVACR admitted that the Property Restrictions

were on file in the public records when it purchased Lot 52-A, but insisted it did

not have to obtain approval of the ACC for its proposed resubidivision of that lot

because the ACC did not exist and was not functioning at the time HVACR

acquired and sought to resubdivide that lot. When questioned whether HVACR

admitted that no party cancelled or waived the Property Restrictions, HVACR

admitted that the Property Restrictions were not formally cancelled, revoked, or

waived as a matter of the public records. However, HVACR maintained that the

property owners of the subdivision abandoned the use of the ACC to regulate the

development of the lots in the subdivisions many years prior to HVACR' s

acquisition of Lot 52- A. 

Having examined all of the evidence on the motion for summary judgment, 

we reject petitioners' claim that the existence of the ACC is immaterial to the issue

of whether HVACR violated the Property Restrictions. Petitioners are relying on

Section 3 of those restrictions as the basis for prohibiting HVACR' s attempted

resubdivision of Lot 52-A. Section 3 does not contain a blanket prohibition on

resubdivision of any lot in Lafitte Hills; rather, it only prohibits resubdivision

without the written consent of the ACC. In order to decide whether HVACR' s

purported resubdivision of Lot 52- A violated Section 3, the court must first

12
determine whether HVACR was required to obtain the written consent of the ACC. 

There are genuine disputed factual issues as to whether the ACC was in existence

and was functioning as the body contemplated by Articles 3 and 12 of the Property

Restrictions at the time HVACR sought to resubdivide Lot 52-A. Further, if the

ACC was not formally in existence, there are factual and legal issues as to what

actions HVACR was required to take in order to subdivide Lot 52- A. Because

there are disputed issues which must be resolved before the court can determine

whether HVACR' s attempt to resubdivide lot 52-A violated the Property

Restrictions, the trial court erred in concluding that HVACR was entitled to

judgment decreeing that it did not violate the Property Restrictions and that the

subdivision of Lot 52- A was proper and legal. 

In the same vein, because of the factual disputes regarding the existence and

composition of the ACC and whether HVACR was required to seek the approval

of the ACC to subdivide its lot, petitioners are not entitled to a judgment decreeing

that HVACR violated the Property Restrictions as a matter of law. Therefore, 

petitioners' motion for summary judgment was properly denied. 

CONCLUSION

For the foregoing reasons, the trial court' s May 25, 2021 judgment granting

summary judgment in favor of HVACR is reversed. The May 25, 2021 judgment

denying petitioners' motion for summary judgment is affirmed. All costs of this

appeal are assessed equally between appellants and appellees. The case is

remanded to the trial court for proceedings consistent with this opinion. 

REVERSED IN PART; AFFIRMED IN PART; REMANDED. 

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