David J. Robichaux, Jr. and Leona Gaudet Robichaux VS Leon J. Lanoux, Nora S. Lanoux and Countryplace Mortgage, Ltd.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2181 DAVID J ROBICHAUX JR AND LEONA GAUDET ROBICHAUX VERSUS LEON J LANOUX AND NORA S LANOUX AND COUNTRYPLACE MORTGAGE LTD Judgment Rendered June 11 2010 7 x x x Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket Number 109 169 Honorable Ashly Bruce Simpson Judge David H Ogwyn Baton Rouge LA Stephen G Peltier Thibodaux LA Counsel for E Scott Hackenberg Counsel for Baton Rouge LA Appellant Defendant CountryPlace Mortgage Ltd PlaintiffsAppel lees David J Robichaux Jr and Leona Gaudet Robichaux BEFORE CARTER C GUIDRY AND PETTIGREW J J Affirmative Defenses In its second assignment of error CountryPlace contends that the trial court erred in finding that the Robichauxes were not estopped from enforcing the set back restrictions and in not finding that the Lanouxes detrimentally relied upon or representations or omissions made by Mr Robichaux and not finding that the or Robichauxes failed to mitigate their damages The Robichauxes however contend that the Lanouxes affirmative defenses are not properly before this court because they were not pled in their answer to the Robichauxes petition A defendant is required to affirmatively set forth in his answer any matter constituting an affirmative defense upon which he will rely La C art 1005 P The purpose of the requirement that certain defenses be affirmatively pled is to give the plaintiff fair and adequate notice of the nature of the defense and thereby prevent last minute surprise to the plaintiff Hebert v Anco Insulation Inc 00 1929 p 12 La App 1st Cir 7 835 So 2d 483 492 writs denied 02 02 31 2956 02 2959 La 2 837 So 2d 629 03 21 In their answer the Lanouxes asserted all affirmative defenses available to them and in its answer CountryPlace adopted all defenses available to the Lanouxes The Lanouxes however did not specifically plead detrimental reliance or estoppel as required by La C art 1005 nor did they affirmatively plead P mitigation of damages See The Cadle Company v Dumesnil 610 So 2d 1063 La App 3rd Cir 1992 writ denied 613 So 2d 992 La 1993 Therefore arguably these defenses were not properly raised However because evidence on detrimental reliance or estoppel and mitigation of damages was admitted at trial without objection we will address these issues on appeal See Sonnier Boudreaux 95 pp 6 7 La App Ist Cir 5 673 So 2d 713 717 2127 96 10 7 v GUIDRY J CountryPlace Mortgage Ltd Appellant appeals a final judgment enjoining Leon J Lanoux and Nora S Lanoux the Lanouxes from placing their mobile home within one hundred feet of the servitude of Burma Road in compliance with the Act of Sale entered into with David J Robichaux and Leona Gaudet Robichaux the Robichauxes For the reasons that follow we affirm the trial court s judgment FACTS AND PROCEDURAL HISTORY This suit arises out of the sale of immovable property the Robichauxes On April 17 1995 executed an Act of Sale whereby they sold a tract of land situated in Lafourche Parish to the Lanouxes The sale was recorded in the conveyance records in Lafourche Parish on April 26 1995 A document entitled Exhibit A was attached to the Act of Sale Exhibit A contained a description of the property and listed certain set back restrictions The restriction at issue in the present case prohibited the Lanouxes from placing a mobile home within one hundred feet of either Burma Road or St Charles ByPass Road In June of 2007 the Lanouxes purchased a new mobile home and placed it within one hundred feet of Burma Road in violation of said restrictions Prior to purchasing the mobile home on March 31 2007 the Lanouxes employed R T Sewer Systems to install a sewer system on the property and on April 16 2007 the Lanouxes employed Leblanc Brothers ReadyMix Inc to lay a foundation on the property On May 2 2007 Mr Robichaux sent a certified letter to Mr Lanoux requesting that he comply with all the restrictions and he attached a copy of the Act of Sale and the restrictions to the letter The record does not disclose exactly 1 Leona Gaudet Robichaux was not present at the sale She gave her husband power of attorney and he executed the Act of Sale on her behalf 2 when Mr Robichaux discovered that the Lanouxes were making improvements on the property The Lanouxes failed to comply with Mr Robichaux request s Thereafter on April 28 2008 the Robichauxes filed suit against the Lanouxes and CountryPlace the company that mortgaged the Lanouxes mobile home seeking to enjoin the Lanouxes from placing the mobile home within the restricted area After a trial on the merits the trial court rendered judgment in favor of the Robichauxes enjoining the Lanouxes from placing their mobile home within one hundred feet of the servitude of Burma Road CountryPlace has appealed the trial court sjudgment ASSIGNMENTS OF ERROR On appeal CountryPlace raises two assignments of error CountryPlace contends 1 The trial court abused its discretion under the facts of this case by ordering injunctive relief 2 The trial court erred in finding that plaintiff failed to mitigate his damages and the trial court erred in finding that the plaintiff was or not estopped from enforcing the set back restriction and that the or Lanouxes detrimentally relied upon various representations or omissions by Mr Robichaux STANDARD OF REVIEW The issuance of a permanent injunction is reviewable under the manifest error standard City of Baton RougeParish of East Baton Rouge v 200 Government Street LLC 08 0510 p 5 La App 1st Cir 9995 So 2d 32 08 23 36 writ denied 08 2554 La 1 998 So 2d 726 The manifest error standard 09 9 of review applies to all factual findings including a finding relating to the factual as opposed to legal sufficiency of the evidence to warrant application of a legal theory or doctrine This standard of review also applies to mixed questions of law and fact such as the issue of whether the facts found by the trier of fact trigger CountryPlace acknowledges that it was properly brought into the suit 3 application of a particular legal standard Barnett v Saizon 08 0336 p 6 La App 1 st Cir 9994 So 2d 668 672 08 23 In order to reverse a factual determination by the trier of fact the appellate court must apply a two part test 1 the appellate court must find that a reasonable factual basis does not exist in the record for the finding and 2 the appellate court must further determine that the record establishes that the finding is clearly wrong manifestly erroneous Further when factual findings are based upon determinations regarding the credibility of the witnesses the manifest error standard demands great deference to the trier of fact findings Barnett 08 0336 s at p 6 994 So 2d at 672 DISCUSSION Injunctive relief In its first assignment of error CountryPlace argues that the trial court abused its discretion by ordering injunctive relief To support its argument CountryPlace relies on Weingarten Inc v Northgate Mall Inc 404 So 2d 896 897 La 1981 wherein the court held In view of the great disparity between the cost of specific relief and the damages caused by the contractual breach the magnitude of the economic and energy waste that would result from the building s destruction the substantial hardship which would be imposed on individuals who are not parties to the contract or to this litigation and the potential negative effect upon the community the circumstances and nature of this case do not permit specific performance In Weingarten Inc the defendant erected a four million dollar building that encroached on property leased to plaintiff by the defendant breaching the lease agreement between it and plaintiff Plaintiff responded to the defendant breach s by filing suit seeking preliminary and permanent injunctive relief The Louisiana Supreme Court found that although specific performance is the preferred remedy for breach of a contract it may be withheld by the court when specific relief is S impossible when the inconvenience or cost of performing is greatly disproportionate to the damages caused when the obligee has no real interest in receiving performance or when the latter would have a substantial negative effect on the interests of third parties Weingarten Inc 404 So 2d at 897 In Weingarten Inc the court nevertheless underscored that unless exceptional conditions prevail anything which has been done in violation of a contract may be undone including the destruction of a building Weingarten Inc 04 So 2d at 902 In the present case CountryPlace contends that the expenses incurred by the Lanouxes to install a sewer system lay the foundation and to lift and reinstall the mobile home will equal if not exceed the cost of purchasing the tract of land from the Robichauxes CountryPlace also contends that it is questionable as to whether Mr Robichaux still has an interest in the set back restrictions Additionally CountryPlace urges that the Lanouxes may be sued by Palm Harbor Homes the seller of the mobile home for not terminating the installation of the mobile home upon receiving the letter from Mr Robichaux Based on these facts CountryPlace insists that injunctive relief is inappropriate We disagree Upon an obligor failure to perform an obligation to do the granting of s specific performance is at the discretion of the court See La C art Under 1986 s Louisiana civil law system specific performance is the preferred remedy for breach of contract An obligee enjoys the right to demand insofar as is practicable the specific performance of the obligation An obligee has a right to specific performance for breach of contract except when it is impossible greatly disproportionate in cost to the actual damage caused no longer in the creditor s 3 The Lanouxes purchased the tract of land from Mr and Mrs Robichaux for 9 It cost 00 300 the Lanouxes 4 to lay the concrete slab and 2 to install the sewer system The 73 019 00 250 record does not reveal the cost to lift and reinstall the mobile home 5 interest or of substantial negative effect upon the interests of third parties The remedy of specific performance may under some circumstances be enforced by injunction The petitioner must have a substantive right to specifically enforce an obligation in order for an injunction to be used as a procedural remedy to enforce the obligation Charter School of Pine Grove Inc v St Helena Parish School Bd 07 2238 p 14 La App 1st Cir 29 So 3d 209 222 09 19 The evidence presented by CountryPlace does not show a great disparity between the cost of specific relief and the damages caused by the contractual breach CountryPlace has not shown that substantial hardship will be imposed on individuals who are not parties to the contract or to this litigation CountryPlace has not shown that removing the mobile home is impossible or impractical under the circumstances Finally CountryPlace has not shown that exceptional conditions prevail so as to necessitate denying injunctive relief See Weiri Inc 404 So 2d at 897 and Charter School of Pine Grove Inc 07 2238 at p 14 9 So 3d at 222 Furthermore the trial court found that the Act of Sale was a valid and enforceable contract A contract is the law between the parties Thibodaux v Arthur Rutenberg Homes Inc 041500 p 4 La App 1st Cir 12 928 So 05 22 2d 80 84 The trial court also found that the Lanouxes breached the contract by placing the mobile home within one hundred feet of Burma Road Mr Robichuax testified that his interest in the restrictions is to ensure that the main entrance where the Lanouxes property is located is not impaired by any type of construction Evidently the trial court felt that Mr Robichaux interest in the s restrictions was valid Accordingly the trial court decision to grant the s Robichauxes injunctive relief is not manifestly erroneous 0 Affirmative Defenses In its second assignment of error CountryPlace contends that the trial court erred in finding that the Robichauxes were not estopped from enforcing the set back restrictions and in not finding that the Lanouxes detrimentally relied upon or representations or omissions made by Mr Robichaux and not finding that the or Robichauxes failed to mitigate their damages The Robichauxes however contend that the Lanouxes affirmative defenses are not properly before this court because they were not pled in their answer to the Robichauxes petition A defendant is required to affirmatively set forth in his answer any matter constituting an affirmative defense upon which he will rely La C art 1005 P The purpose of the requirement that certain defenses be affirmatively pled is to give the plaintiff fair and adequate notice of the nature of the defense and thereby prevent last minute surprise to the plaintiff Hebert v Anco Insulation Inc 00 1929 p 12 La App 1st Cir 7 835 So 2d 483 492 writs denied 02 02 31 2956 022959 La 2837 So 2d 629 03 21 In their answer the Lanouxes asserted all affirmative defenses available to them and in its answer CountryPlace adopted all defenses available to the Lanouxes The Lanouxes however did not specifically plead detrimental reliance or estoppel as required by La C art 1005 nor did they affirmatively plead P mitigation of damages See The Cadle Company v Dumesnil 610 So 2d 1063 La App 3rd Cir 1 writ denied 613 So 2d 992 La 1993 992 Therefore arguably these defenses were not properly raised However because evidence on detrimental reliance or estoppel and mitigation of damages was admitted at trial without objection we will address these issues on appeal See Sonnier Boudreaux 95 2127 pp 6 7 La App 1st Cir 5 673 So 2d 713 717 96 10 7 v Estoppel and Detrimental Reliance The doctrine of equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied on such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct Founded on good faith the doctrine is designed to prevent injustice by barring a party under special circumstances from taking a position contrary to his prior acts admissions representations or silence Dupont v Hebert 06 2334 p 7 La App 1st Cir 08 20 2984 So 2d 800 806 writ denied 080640 La 5980 So 2d 695 08 9 The theory of detrimental reliance also referred to as promissory or equitable estoppel is based upon La C art 1967 which provides in pertinent part that a party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts admissions representations or silence To establish detrimental reliance a party must prove three elements by a preponderance of the evidence 1 a representation by conduct or words 2 justifiable reliance and 3 a change in position to one detriment because of the reliance s It is difficult to recover under the theory of detrimental reliance because estoppel is not favored in our law Barnett 08 0336 at pp 9 10 994 So 2d at 674 To support its claims for estoppel and detrimental reliance CountryPlace relies on the Lanouxes testimony that they were not aware of the set back restrictions until they received the May 2nd letter from Mr Robichaux requesting that they comply with the restrictions attached to the Act of Sale The Lanouxes also relied on Mr Lanoux testimony that prior to the sale Mr Robichaux did not s inform him that there would be any restrictions on the property To further support its claims CountryPlace relies on Mr Robichaux stestimony that he did not place markers on the property to indicate boundaries or the restrictions prior to the sale Additionally CountryPlace argues the Lanouxes were justified in believing to their detriment that there were no restrictions CountryPlace bases this argument on the Lanouxes assertion that their copy of the Act of Sale did not contain the restrictions and the fact that they claim that Mr Robichaux did not inform them of the restrictions prior to the sale For these reasons CountryPlace insists that the Robichauxes should be estopped from seeking injunctive relief We disagree At the trial Mr Lanoux testified that Mr Robichaux did present him with a map and instructed him to place his mobile home in a certain area on the property Furthermore Mr Robichaux testified that in a conversation that preceded the sale he explained to the Lanouxes that there would be a mild set of restrictions on the property Furthermore at the trial on the merits the Robichauxes introduced into evidence the recorded copy of the Act of Sale which included the restrictions Additionally Judy Morvant the notary who notarized the sale documents testified that the restrictions were attached to the Act of Sale when the Lanouxes executed the documents To counter that evidence the Lanouxes introduced into evidence a copy of the Act of Sale without the restrictions In its reasons for judgment the trial court found that the restrictions were attached to the Act of Sale Where there are two permissible views of the evidence the fact finder choice between them s cannot be manifestly erroneous or clearly wrong Guillory v Lee 09 0075 p 15 La 6 16 So 3d 1104 1117 09 26 In light of the trial court sfindings we cannot say that Mr Robichaux failed to inform the Lanouxes that there were some restrictions on the property W Therefore CountryPlace has failed to prove by a preponderance of the evidence that Mr Robichaux represented by his conduct that no restrictions existed and the Lanouxes were justified in believing that no restrictions existed Accordingly we find that CountryPlace has failed to state a cause of action against the Robichauxes for estoppel or detrimental reliance Mitigation ofDamages It is well settled in the jurisprudence that an injured parry has a duty to take reasonable steps to mitigate damages La C art 2002 Morton Bldg Inc v Redeeming Word of Life Church 01 1837 p 12 La App 1st Cir 10 835 02 16 So 2d 685 692 writ denied 02 2733 La 1836 So 46 03 24 2d CountryPlace Lanouxes damages contends that the Robichauxes failed to mitigate the s CountryPlace contentions are based on the fact that Mr Robichaux sent the May 2nd letter requesting that the Lanouxes comply with the restrictions after the Lanouxes purchased the mobile home However the record does not reveal when Mr Robichaux learned that the Lanouxes were planning to place their mobile home in the restricted area Furthermore as previously stated in its reasons for judgment the trial court found that the restrictions were attached to the Act of Sale when the Lanouxes executed the documents Therefore CountryPlace cannot show that Mr Robichaux sfailure to send the May 2nd letter before the Lanouxes purchased the mobile home constitutes a failure to mitigate damages Accordingly CountryPlace has failed to state a cause of action for failure to mitigate damages CONCLUSION For the above reasons we affirm the trial court judgment enjoining the s Lanouxes from placing their mobile home within one hundred feet of Burma Road 10 All costs of this appeal are assessed against appellant CountryPlace Mortgage Ltd AFFIRMED 11
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