Greenleaves Master Association VS Greenleaves Utility Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 1946 GREENLEAVES MASTER ASSOCIATION VERSUS GREENLEAVES UTILITY COMPANY Judgment rendered JUN 1 9 2009 Appealed from the 22nd Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 2006 12806 Honorable Reginald T Badeaux III Judge STEPHEN K CONROY ATTORNEYS FOR CHRISTINE W MARKS PLAINTIFF APPELLEE TOM D SNYDER JR GREENLEAVES MASTER METAIRIE ASSOCIATION WILliAM J LA CRAIN ATTORNEY FOR DEFENDANT APPELLANT COVINGTON LA GREENLEAVES UTIliTY COMPANY BEFORE PETTIGREW McDONALD AND HUGHES JJ PETTIGREW J This matter arises in connection with dues The defendant Greenleaves Utility is the designated sewer Greenleaves Master Association and water s covenants restrictions Restrictions and Covenants as totaling 11 175 59 covenants restrictions summary is a in Louisiana non in the Act of two Louisiana The plaintiff profit corporation including assessing performing the duties relegated to it by the Creating Master Deed by Greenleaves Development Corporation for the Subdivision against the Utility in 2006 seeking collection of allegedly owed by the Utility to the Association pursuant to the The Utility and the Association originally filed judgment in 2007 however both motions Thereafter in Mandeville to the Subdivision set forth The Association filed the instant suit dues owner provider for the Subdivision the Association members for the costs and expenses of is the Utility the Subdivision organized to perform certain activities relative Subdivision the Utility Company parcels of land in Greenleaves Subdivision The alleged past due homeowner association January 2008 the Association filed a were cross motions for denied by the trial court pleading entitled Application 1 For Injunctive Relief Or Alternatively Motion For Reconsideration Or Motion For Summary Judgment On Behalf Of The Association liable for the dues The re urging its contention that the Utility was Utility likewise filed another motion for summary judgment arguing that based upon language contained in the Subdivision s covenants restrictions it is not liable for the dues Both motions under advisement the Association s were heard on March 11 On December 23 motion for summary 2008 2008 the trial court rendered Utility and that the Utility is required to pay 1 appealed judgment granting judgment and denying the Utility s motion trial court found that the Association had the power to has and the trial court took the matter same 2 The levy homeowner s dues against the It is from this judgment that the Utility seeking review of the judgment to the extent that it granted the was denied on the merits while the Utility s motion was untimely 2 The original judgment in this case was rendered on April 29 2008 but did not include appropriate decretal language By interim order of this court dated December 19 2008 the matter was remanded to the trial court for the limited purpose of the trial court issuing a new judgment which it did on December 23 2008 According dismissed to the record the Association s motion as 2 Association motion for summary s it that finding was member a covenants restrictions to judgment of 3 The the Utility argues the trial and Association require that it pay dues in court erred in interpreting the to the Association SUMMARY JUDGMENT A motion for summary judgment is trial when there is University 2 8 08 no answers to interrogatories and admissions under the is an judgment a His response of Louisiana State by affidavits a 2 Thomas if Robles Exxonmobile appropriate file v App 1 Cir La together with affidavits mover is entitled to Summary judgment is Fina Oil and Chemical Co 845 So 2d 498 v 501 502 s In determining novo determination of whether summary Four Corners Volunteer Fire Dept 2008 0354 994 sO 2d 696 699 or as judgment is made and supported on the otherwise mere will be rendered 2002 0854 p allegations or 4 If he does not against him La La as provided by denials of his provided by law must genuine issue for trial judgment 8 appropriate appellate courts review evidence de party may not rest showing that there is v is motion for summary adverse full scale just speedy and inexpensive determination of art 966 A Lewis App 1 Cir 9 26 08 When the App 1 Cir 2 14 03 appropriate on art 966 8 criteria that govern the trial court same judgment La Code Civ P La secure La Code Civ P whether summary law to designed 2002 0338 pp 4 5 La rs genuine issue of material fact and the no matter of law as a favored and is p 4 Sup a Summary judgment is properly granted if the pleadings 79 if any show that there is every action Board of genuine factual dispute 984 sO 2d 72 judgment procedural device used to avoid Louisiana Agr Finance Authority 2007 0107 p v depositions a set forth so pleading specific facts respond summary Code Civ App lOr 3 28 03 P art 967 844 sO 2d 339 341 3 The Utility also filed a timely writ application seeking review of the denial of its motion for summary judgment We address the merits of the writ application in a separate opinion decided this same date see Greenleaves Master Association v Greenleaves Utility Company 2008 1328 La App 1 Cir 1 unpublished opinion 3 After instant case considering the evidence and the applicable law determined that the required to pay dues The In its Utility reasons Louisiana was a the trial court in the member of the Association and for judgment the trial court noted Homeowners Association follows as Act LHAA La Rev stat Ann 9 1141 1 et seq governs the application of building restrictions in residential planned communities Among the definitions of a building restriction is imposition of an affirmative duty including the duty to pay monthly or periodic dues or fees or assessments for a or particular expense capital improvement that are reasonable for the maintenance improvement or safety or any combination thereof of the planned community the affirmative La Rev statAnn t he provides that existence validity or extent of a building restriction affecting any association property shall be liberally construed to give effect to its 9 1141 5 6 1141 4 Section purpose and intent contends that The Association in the Subdivision and therefore a the Utility is of an owner property member of the Association who must pay dues The Utility Subdivision counters that it is not to assessments made As this a by Court although it owns member of the Association the earlier the Covenant the power to levy assessments on members three definitions of member put forth in the Covenant Association are interest here the owner s been subdivided for sale to the subject Association noted has property in and cannot be of any Parcel of the multiple Property grants the While there only one is of which has not owners The Association argues that this language in no way implies that the property must be subdivided for sale simple ownership of an undivided parcel makes one a member of the Association and as owner of undivided parcels is then a member and liable for dues The Utility phrase which however contends that has not been subdivided demands that this category apply only to subdivision use in the Covenant of the for sale to to owners multiple owners of property which is to hold otherwise it avers would mean that Since its properties have been set aside for susceptible this phrase is superfluous specific uses and cannot be subdivided it is Covenant and cannot be assessed dues by the under the Association logic the Utility s argument is flawed Nothing prevents the language as it stands from applying both to owners of property which may be subdivided as well as to owners of property which cannot be subdivided Rather than being burdened with a superfluous phrase the wording as it stands is clear and concise The Utility is a As a matter of not a member member of the Association 4 was Moreover under the LHAA the Association Utility That statute clearly definitions of building restriction is the duty to pay the assessment for a particular expense which is reasonable for certain benefits to the planned community Among the benefits enumerated in the LHAA is safety and the Utility receives the benefits of the security services provided by the Association The LHAA requires that language in the Covenant pertaining to t he existence validity or extent of a building restriction must be Such a liberally construed to give effect to its purpose and intent of the Covenant shows that the Association s imposition of reading assessments on the Association members to pay for security for the Subdivision is a valid building restriction assessments the has the power to levy provides that one of the on Accordingly the Association has the power to levy assessments against the Utility which the latter is required to pay Accordingly the Association s Motion for Summary Judgment is granted and the Utility s Motion for Summary Judgment is denied Emphasis in original Footnotes omitted We have thoroughly reviewed the jurisprudence and agree with the trial court as they apply to the instant case s evidence in the record and relevant interpretation of the covenants restrictions The relevant provisions are clear and unambiguous Reviewing the plain language of the covenants restrictions it is clear that the Utility is member of the Association members of the Association these issues evidence are that 4 and is subject The without merit there were to assessment arguments made by the Utility The affirm the trial court Rule 2 16 1B s on as are other appeal concerning Utility failed to bear its burden of producing genuine issues of material Accordingly summary judgment in favor of the Association we of dues a fact was remaining for trial Therefore appropriate judgment in accordance with Uniform Rules Courts of Appeal All costs associated with this appeal are property in assessed against Greenleaves Utility Company AFFIRMED 4 We also note that the Utility s acquisition covenants restrictions set forth in the Act Development Corporation argument that it should of the Creating for the Subdivision now question was made Master Deed Restrictions and Covenants subject by There is no evidence in the record to support the be relieved of the obligation to pay the assessments as required covenants restrictions 5 to the Greenleaves Utility s by the
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