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 CAPACITYAS 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 BhushanCharles A. Schutte, Jr.

Baton Rouge, Louisiana Attorney forAppellees/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. PAHOLDRIDGE, J. Petitioners, Sandra Bergeron and Madhu Bhushan, appeal a judgment granting partial summaryjudgment 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 furtherproceedings. 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 ofthe 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 lawsuitswerefiled byhomeowners ofLafitte 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. 271) 3alleged 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 ofthe 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 laterfiled an amendedpetition adoptingtheallegations 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 ofthe 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. 

## ItisundisputedthatHVACRdidnotseekapproval oftheACCpriortoattempting 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 itdid notneedthe approval ofthe ACC to resubdivide Lot 52-Abecause atthe time it acquired and sought to subdivide Lot 52-A,there was no ACC in existence 

### orfunctioning as contemplated bythe 1977 Property Restrictions. HVACR relied 

### on Article 12 ofthe 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. 4The Architectural Committee is composed of:

a. Dr. Nathan Shlechter b. Richard D. Shaffett

c. Keith D. Jones A majority ofthe 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 ofthe 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 ofa majority ofthe lots shall have the power through 

### a duly recorded written instrument, to change the membership ofthe committee or restore it to any of its powers and duties. 

### In its motion for summaryjudgment, HVACR insisted that in orderto prove the existence of any obligation on its part to obtain approval of the ACC to 

### subdivide Lot 52-A underArticle 3 ofthe Property Restrictions, petitioners had the 

### burden ofdemonstrating thatthe 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 instrumentbe executed in properform byamajorityofthe 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 ofthe ACC no longer applied as a matter 

### of law, entitling it to ajudgment 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 E

### 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 ofTupac de la Cruz. 

### On April 7, 2021, petitioners filed amotion forsummaryjudgment, inwhich they asserted that they are entitled tojudgment as a matter of law: ( 1) recognizing 

### the validity ofthe provision ofthe Property Restrictions prohibiting resubdivision; 2) 

## declaring thatthe 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 ofthe subdivision; 6) the affidavits ofJoseph F. Accardo, 

### William Bergeron,and Mrs. Bhushan, and (7) certified copies ofanApril 24, 2020 letter sentto Mr.de la Cruz and various acts ofsale. 

## 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 ofthe Property Restrictions, and there is no genuine issue ofmaterial fact

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



### ACC is immaterial to the enforceability ofthe 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 ofproving 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 summaryjudgment and all exhibits 

### attached to HVACR's motion for summaryjudgment. In opposition to petitioners' 

### motion, HVACR relied onthe evidence it submitted in support ofits 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 ofthe 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 summaryjudgment in its favor. For the same 

### reason,the trial court denied petitioners' motion for summaryjudgment.
7On 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 declaratoryjudgment, 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 nojust reason forthe delay ofthe 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 oftheir motion forsummaryjudgment. DISCUSSION Summary Judgment 

### After an opportunity for adequate discovery, summary judgment shall be granted ifthe 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 ofwhether summaryjudgment 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 summaryjudgment and dismissing all ofpetitioners' 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 summaryjudgement is also reviewable on appeal in connection with the review of the appealablejudgment. See Bourg v. Safeway Insurance Company of Louisiana, 2019-0270 (La.App. I" Cir, 3/5/20), 300 So.3d 881, 887. g2/21/ 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 ofaction under the applicable theory ofrecovery. A material fact is one that would matter at a trial on the merits. Any doubt as to a 

### dispute regarding a material issue offact must be resolved against granting the motion and in favor oftrial on the merits. Collins, 298 So.3d at 195. 

### The Code ofCivil Procedure places the burden ofproofon the party filing the motion for summary judgment. La. C.C.P. art. 9661)( 1). The mover can meet 

## thisburden byfiling supporting documentaryevidence, andthemover's supporting documents must prove the essential facts to carry the mover' s burden. Thus, in 

### deciding a motion for summaryjudgment, 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 offactual support forone or more 

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

### party to produce factual support, through the use ofproper 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. Ifthe 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 summaryjudgment. Jenkins, 305 So.3d at 371. Evidence on the Motion for Summary Judgment 

### Documentary evidence submitted by HVACR in support of its motion for 

### summaryjudgment included petitioners' answers to interrogatories, in which they 

### identified the owners ofsubdivision lots in 2020 and setforth the history regarding Mthe ACC membership from 1977 through August 1, 2017, along with



### documentation supporting the membership changes. Accordingtothe evidence, the original members of the ACC served from 1977 through 1982. On March 15, 

### 1982, a majority ofthe members ofthe existing property owners ofthe subdivision executed a written document dismissing the existing members ofthe ACC as per Section 12 ofthe 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 ofthe ACC; in 1986, two members resigned from the 

### ACC and another personjoined 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 

### meetingwas held byamajority ofthe propertyowners 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 ofthe purchase ofLot 52-A has HVACR been provided with an instrument 

### signed by a majority ofowners oflots 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 10

### that he could not secure written consent ofthe ACC to subdivide Lot 52-Abecause



### 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 forsummaryjudgment, Mr.de laCruzmadevarious attestations regarding HVACR's intentto comply with the Property Restrictions regarding construction ofthe 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 supportofits motionforsummary judgment, petitioners submitted the affidavit ofMr.Accardo, one ofthe owners of 

## alot in Lafitte Hill Subdivision,who madethe 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 ofthe majority ofthe property owners ofthe 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 

## early2020,theACC became awarethatLot52-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 ofthe 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.
11Minutes 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 ofthe ACC, nominations were taken, and ofthose 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 ofthe ACC were appointed. She attested that two members who were on 

### the ACC priortothatmeeting attendedthe 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 ofthe ACC for its proposed resubidivision ofthat 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 ofthe subdivision abandoned the use ofthe 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 ofthe evidence on the motion forsummaryjudgment,
we reject petitioners' claim that the existence ofthe ACC is immaterial to the issue ofwhether HVACR violated the Property Restrictions. Petitioners are relying on 

### Section 3 ofthose 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 HVACRwas required to obtainthe written consent oftheACC.

There are genuine disputed factual issuesas to whetherthe ACC was in existence 

## andwasfunctioning asthe bodycontemplated byArticles3 and 12 ofthe 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 ofLot 52-A was proper and legal. 

### In the same vein, because ofthe factual disputes regarding the existence and composition ofthe ACC and whether HVACR was required to seek the approval 

## oftheACCtosubdivide its lot,petitionersarenotentitledtoajudgmentdecreeing that HVACR violated the Property Restrictions as a matter of law. Therefore, 

### petitioners' motion forsummaryjudgmentwas properly denied. CONCLUSION 

## Fortheforegoing reasons,thetrial court's May25, 2021 judgmentgranting summaryjudgment 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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