Dominion Homeowner's Association Board of Directors and Dominion Architectural Control Committee VS Mr. Leo Caillier, III and Mrs. Naydja Larkins Caillier
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 1858 DOMINION BOARD OF DIRECTORS AND DOMINION ARCHITECTURAL CONTROL COMMITTEE VERSUS MR LEO CAILLIER III AND MRS NAYDJA LARKINS CAILLIER AS OWNERS OF REAL PROPERTY AT 241 EMPRESS COURT LOT 29 PHASE II DOMINION SUBDIVISION MADISONVILLE LA 70447 Judgment Rendered May 7 2010 Appealed from the TwentySecond Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 200815749 Honorable Reginald T Badeaux Judge Clint L Pierson Jr Covington LA Attorney for Plaintiffs Appellees Dominion Board of Directors and Dominion Architectural Control Committee Anthony L Glorioso Metairie LA Attorney for Defendants Appellants Mr Leo Caillier III and Mrs Naydja Larkins Caillier as Owners of Real Property BEFORE WHIPPLE HUGHES AND WELCH JJ WELCH J Leo Caillier III and Naydja Larkins Caillier appeal a judgment of the district court confirming an arbitration award against them and in favor of Dominion Board of Directors DACC DBD and Dominion Architectural Control Committee and awarding DBD and DACC additional sums For reasons that follow we amend the judgment and as amended the judgment is affirmed I FACTUAL AND PROCEDURAL HISTORY Dominion is a residential subdivision located in St Tammany Parish It was developed by Fairway Development Group L By authentic act dated January C 28 2004 and recorded in the public records for St Tammany Parish certain restrictive covenants for Dominion were created Those restrictive covenants were later amended by authentic act dated May 24 2005 and recorded in the public records The owners of property located in Dominion belong to Dominion Subdivision Homeowner Association s DSHA which is governed by DBD DACC administers the various rules and regulations regarding construction and use of a property located within Dominion By act of cash sale dated December 24 2006 the Cailliers acquired a lot in Dominion and moved into a home located on the property The act of cash sale specifically provided that the property was subject to the restrictive covenants of Dominion Shortly thereafter the Cailliers began to store a boat and trailer in their yard and a dispute between the Cailliers and DACC arose Relevant to this dispute the restrictive covenants for Dominion provide in pertinent part It PROHIBITED ACTIVITIES 4 No structure of a temporary character such as a trailer camper camp truck house trailer mobile home or other prefabricated trailer house trailer or recreational vehicle or other vehicle having once been designed to be moved on wheels no tents shacks barns or other outbuilding shall be used on any lot at any time 2 as a residence either temporarily or permanently Further no such trailer camper camp truck junk vehicle recreational vehicle motorcycle boat and boat trailer shall be kept on any lot or in the or street adjoining any lot in the subdivision It is provided however that this restriction shall not apply to such vehicles motorcycles boats andor trailers or machinery or equipment enclosed and kept within a garage or behind a fenced or landscaped enclosure approved by DACC but not in the front yard the front yard being measured from the front of the house to the front property line or the side yard of a corner lot the side yard being measured from the side of the house to the side property line adjoining the street right of way Emphasis added DBD and DACC had several communications with the Cailliers concerning the lack of an enclosure approved by DACC for their boat and trailer In response the Cailliers submitted plans to DACC for a landscaped enclosure of the boat by the use of shrubs DACC rejected the plans for the proposed landscaped enclosure and instead informed the Cailliers that they would have to erect a sixfoot wood fenced enclosure as DACC had required with all other property owners in the subdivision When the Cailliers refused in accordance with the bylaws of DSHA DBD and DACC initiated arbitration proceedings against the Cailliers seeking their compliance with the restrictive covenants regarding boat and trailer storage on the property and with DACC decision with regard to the appropriate enclosure s for the boat An arbitration hearing was conducted on October 1 2008 The Cailliers did not attend the arbitration hearing however the arbitrator considered the photographs claims and information submitted by the Cailliers prior to the hearing On October 1 2008 the arbitrator made an award finding that the DSHA and DACC had proven their case and giving the Cailliers ten days from the date of the award to either submit plans for approval to DSHA and DACC for the installation of a sixfoot wood fence on their property or remove the boat and trailer from their property until they complied with the requirements of DSHA and DACC Additionally the arbitrator assessed the costs of the arbitration totaling 3 30 048 2 against the Cailliers On October 29 2008 DBD and DACC commenced these proceedings in district court seeking to confirm the arbitration award and to have judgment entered in accordance with the arbitration award In response the Cailliers sought to modify andor correct the arbitration award so as to allow them the option to submit a plan for a landscaped enclosure as provided by the restrictive covenants On April 23 2009 the district court rendered judgment confirming the October 9 2008 award of the arbitrator and making the award a judgment of the district court Additionally the judgment rendered by the district court provided that in addition to the total fees and expenses assessed by the a namely rbitrator 30 048 2 judgment is hereby rendered against the Cailliers in the sum of 50 360 4 plus legal interest on all amounts due from date of judicial demand until paid and for all court costs of these proceedings From this judgment the Cailliers have appealed On appeal the Cailliers contend that the district court erred in 1 confirming the arbitration award because the arbitration award did not contain an option allowing the Cailliers to submit a plan for a landscaped enclosure and 2 awarding arbitration and court costs and attorney fees II LAW AND DISCUSSION Louisiana Revised Statutes 9 provides that upon a timely motion for 4209 an order confirming an arbitration award a district court shall grant the order unless the arbitration award is vacated modified or corrected as provided by La S 4210 R 9 and 9 Louisiana Revised Statutes 9provides 4211 4210 In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration A Where the award was procured by corruption fraud or undue means M B Where there was evident partiality or corruption on the part of the arbitrators or any of them C Where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other misbehavior by which the rights of any party have been prejudiced D Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual final and definite award upon the subject matter submitted was not made Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may in its discretion direct a rehearing by the arbitrators Additionally La R 9 provides S 4211 In any of the following cases the court in and for the parish wherein the award was made shall issue an order modifying or correcting the award upon the application of any party to the arbitration A Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person thing or property referred to in the award B Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted C Where the award is imperfect in matter of form not affecting the merits of the controversy The order shall modify and correct the award so as to effect the intent thereof and promote justice between the parties Essentially the Cailliers contend that because the restrictive covenants provide that a boat and trailer may be stored behind a fenced or landscaped enclosure approved by the DACC the arbitrator sfailure to allow the Cailliers the option to construct a landscaped enclosure was in manifest disregard of the law and therefore should be modified or vacated We find no merit to the Cailliers contention in this regard Although the restrictive covenants suggest that a boat or and trailer may be kept on the property if it is enclosed behind either a fenced or landscaped enclosure the restrictions are clear that the enclosure must be approved 5 by DACC DACC did not approve the Cailliers proposed landscaped enclosure and instead informed them that they would need to construct a sixfoot wooden fenced enclosure as DACC had required of other residents of Dominion Accordingly the arbitrator determined that the Cailliers would have to either construct a sixfoot wooden enclosure approved by DACC or remove their boat until they complied Considering the restrictive covenants and the arbitrator s ruling we can find no basis in the record to vacate or modify this award Therefore the April 23 2009 judgment of the district court confirming the arbitration award in favor of DBD and DACC and making the arbitration award a judgment of the district court is affirmed With regard to the award of fees and expenses in favor of DBD and DACC the bylaws of DSHA provide in pertinent part as follows ARTICLE 8 ARBITRATION With the exception of dues assessments and collection of dues and assessments which are excluded from arbitration any dispute between or among the property owners arising out of the administration of the subdivision property shall be resolved by the Association acting through its Board of Directors Should any owner contest the decision reached by the Association then the Association through its Directors shall select an arbitrator and the matter or matters in dispute shall be submitted to the arbitrator for arbitration in accordance with the rules adopted by the American Arbitration Association The decision of the arbitrator shall be binding on all lot owners and the Association All costs of any such arbitration shall be borne equally by the lot owners involved on a prorata basis unless the award ofthe arbitrators is entirely against one lot owner in which case said lot owner shall be solely responsible for all costs of said arbitration Emphasis added In accordance with this provision of the bylaws the arbitrator cast the Cailliers with the costs of arbitration which totaled 2 1 for the fees and 30 00 048 600 expenses of the arbitrator and 448 for the cost of the transcript of the 30 arbitration hearing Considering the above provision in the bylaws we find no C9 error in the district court judgment confirming the arbitrator award in this s s regard However the district court judgment further provided that in addition to s the total fees and expenses assessed by the a namely 2 rbitrator 30 048 judgment is hereby rendered against the Cailliers in the sum of 4 plus 50 360 legal interest on all amounts due from date of judicial demand until paid and for all court costs of these proceedings This additional sum of 4awarded in favor of DBD and DACC was 50 360 derived from a statement for services rendered by counsel for DBD and DACC and was itemized as follows 2 for professional services rendered iattorney 00 800 e fees 33 for travel to and from the Cailliers deposition 812 for costs for 00 50 the depositions of the Cailliers and 715 in clerk of court charges While we 00 find no error in the district court confirmation of the assessment of arbitration s costs made by the arbitratator or in the district court determination that the s Cailliers should be assessed with costs or legal interest it is well settled that attorney fees are not recoverable unless expressly authorized by statute or by a contract between the parties See Huddleston v Bossier Bank and Trust Co 475 So 1082 1085 La 1985 Tassin v Golden Rule Ins Co 940362 p 14 2d La App I Cir 12 649 So 1050 1058 94 22 2d In this case there is no applicable statutory provision for the award of attorney fees and neither the bylaws for DSHA nor the restrictive covenants for Dominion contain a provision allowing for attorney fees Therefore to the extent that the district court award of 4 in favor of DBD and DACC included s 50 360 an award of 2 in attorney fees the court erred Therefore we amend the 00 800 judgment of the district court that awarded DBD and DACC the additional sum of 50 560 360 360 4to 14minus 2in attorney fees 50 50 00 800 See La C art 1920 or 1921 P III CONCLUSION For all of the above and foregoing reasons the judgment of the district court is hereby amended and as amended is affirmed Each party is to bear their own costs of this appeal AMENDED AND AS AMENDED AFFIRMED
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