Arbor Walk Property Owners Association, Inc. VS Victorine Battaglia Woodsum

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 0980 ARBOR WALK PROPERTY OWNERS ASSOCIATION INC VERSUS VICTORINE BATTAGLIA WOODSUM Judgment rendered December 21 2007 Appealed from the 22nd Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 2006 15112 The Honorable Patricia T JZjy Hedges LELAND R GALLASPY ATTORNEY FOR COVINGTON PLAINTIFF APPELLANT LA ARBOR WALK PROPERTY OWNERS ASSOCIATION INC VICTORINE BATTAGLIA WOODSUM DEFENDANT APPELLEE MADISONVILLE IN PROPER PERSON LA BEFORE CARTER C l PETTIGREW AND WELCH ll PEITIGREW J Plaintiff Arbor Walk a trial court judgment denying its request for We affirm in and costs Property Owners Association Inc the Association reverse in part a appeals preliminary injunction attorney s fees part and remand BACKGROUND Victorine Battaglia Woodsum Walk Subdivision in St Review Committee fence her on subdivision Ms Tammany Parish the Committee restrictive covenants In June 2006 the Association discovered that Ms Woodsum was in Arbor Architectural s constructing After the Committee notified her of the applied for approval of the construction to build a wooden fence its property a property without the prior approval of the Committee in violation of the Woodsum sought give s is the owner of certain immovable approval along the because such fences Ms Woodsum as property line the Committee refused rear were However problem in violation of the subdivision s to restrictive covenants Despite the Committee construction of the fence her fence was not in refusal to filed fence from the Ms Woodsum refused to property within was sent to Ms remove and permanent damages injunctions ordering the removal court costs and The issue of the at which as Ms or a The trial court denied the s request for attorney s fees and followed 2 Woodsum came second notice on July 12 2006 Therefore for by the the Association seeking preliminary on a court order Ms January 4 This as 2006 Woodsum to were other 2007 the trial court preliminary injunction costs well December 18 request indicating that there On as restrictive covenants hearing requested that the trial judgment denying the request for Association completed A modification of the fence landowners in the subdivision with wooden fences signed Woodsum week Woodsum authorized preliminary injunction time the Association the fence remove attorney s fees a the fence petition for injunction and damages against a Ms July 3 2006 the Committee notified Ms Woodsum that demanding the removal of the fence nevertheless consent give its compliance with the restrictive covenants and demanded that she the wooden remove On s as well as the appeal by the Association DISCUSSION appeal may be taken An preliminary to a aggrieved by to an final or matter of as a La injunction judgment either granting a 96 0898 However appellate review of The issuance of a 2 p n l a La been shown 1117 v writ denied 117 S Ct 963 Generally a that he will suffer denying preliminary injunction party will prevail 136 L a 36128 art Cir 2 14 97 ruling s Thus a party is entitled 2d Ed review unless on 96 0176 La 9 20 96 848 p 5 La 691 So 2d 142 144 v n 1 preliminary injunction is limited on a to the sound discretion of the clear abuse of discretion has a 1 Cir 5 10 96 App 679 So 2d 435 673 So 2d 1997 party seeking the issuance of a sought This must be done by the merits of the Proper Planning LLC case La 906 So 2d 660 664 a 519 s U must show not issue and must show prima facie showing that the Code Civ Parish of v denied cert preliminary injunction irreparable injury if the injunction does on 1 Cir 3 24 05 1 trial court Daniels 96 1463 entitlement to the relief App judgment relating P preliminary injunction addresses itself Lassalle Citizens for or Code Civ or App trial court and will not be disturbed 708 order an Country Club of Louisiana Property Owners Association Inc appeal Dornier 704 right from P art 3601 Concerned Tangipahoa 2004 0270 p 6 La However pursuant to La Civ Code art 779 building restrictions may be enforced by mandatory and prohibitory injunctions without regard the to the limitations of Article 3601 original subdivider or or damage 4 14 98 to the landowner 710 So 2d 1054 After a summary status quo a Jones v light of the above principles is essentially an brought by necessity of 97 2413 p 8 a preliminary injunction trial of the issues on 3 s we La find that the trial request for a preliminary interlocutory order issued to the main demand for generally held that pending Inc denying the Association preliminary injunction proceedings incidental The courts have action may be injunctive relief i e proof of irreparable injury Brier Lake review of the record in A injunctive 1058 court did not abuse its discretion in injunction to an in the subdivision without the by landowners showing the ordinary prerequisites loss Thus in permanent injunctive relief is the merits of the designed case to preserve the Silliman Private School Corp Shareholder v 789 So 2d 20 23 construction of the injunction would remove a fence serve no the fence status quo of writ denied prior Group 2000 0065 pp 5 6 La App 1 Cir 2 16 01 2001 0594 was La 3 30 01 already completed Furthermore purpose to a full trial on the merits thus the and order an a In this prohibitory preliminary requiring Ms Woodsum court permanent injunction Association and s should entitlement to not have issue is question of whether still before to only addressed the issuance a permanent mandatory injunction should issue is still before the lower court and has not been decided the case clearly would not merely preserve the pending trial The hearing before the trial preliminary injunction 788 So 2d 1194 the trial court the issue Since of the attorney s fees and damages is still before the trial court been decided in the summary proceeding addressing the preliminary injunction Accordingly reverse we affirm the denial of the the denial of the Association to the trial court for further permanent injunction s claim for proceedings All costs of this preliminary injunction by the trial court attorney s fees and remand this matter at the trial appeal on are the merits of the assessed equally Property Owners Association Inc and Victorine Battaglia Woodsum AFFIRMED IN PART REVERSED IN PART AND REMANDED 4 request for a to Arbor Walk

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