Wayne Cosby, Kari Fitzgerald, John Fitzgerald, Stan McDonald, Keith Stevens, Karen Williams, Carl Willliams and Peter Oelschlaeger VS Holcomb Trucking, Inc., Henry H. Holcomb and Joyce M. Holcomb (2003CA2423R Rehearing Decision)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2003 CA 2423R WAYNE COSBY IZARI FITZGERALD JOHN FITZGERALD STAN MCDONALD KEITH STEVENS IZAREN WILLIAMS CARL WILLIAMS AND PETER OELSCHLAEGER VERSUS HOLCOMB TRUCIZING INC HENRY H HOLCOMB AND JOYCE M HOLCOMB P PL4 1l J fu v e D c L A o ON REHEARING AUG BEFORE CARTER C J 1 2007 PARRO PETTIGREW MCDONALD AND WELCH JJ r fl RTER c J The our May the Holcombs appellants 4 2007 decision preliminary injunction limited purpose of have affirming in favor of the reviewing petitioned the trial plaintiffs whether court The rehearing of judgment granting a this comi for s rehearing is a granted for the developer William King granted the Holcombs located a valid exemption from the restrictive at 7719 Ben Fugler Road the Front covenant agreement their lot on 1 Lot DISCUSSION Charges imposed by the owner of an immovable in pursuance of plan governing building standards specified act executed by the instruments persons McHugh likened 9 2721A 94 0555 Building to parish La restrictions restriction clauses are are not real rights running restrictions are in which the immovable also current under with the land public LSA C C owners 777 art of the vendor a Blessey records by As third in the Blessey a v generis real rights real rather rights they So 2d at 119 building inure to the Once subsequent acquireI property burdened with such restrictions is bound by them See 119 general plan of development and 664 a of the against registry 3338 mi 664 So 2d 115 LSA C C called property is located immovables and sui incorporeal owners recorded in the all the In order to be effective 776 personal rights benefit of all other propeliy by are be established must or general be feasible and general plan must immovable 1 Cir 7 27 95 servitudes predial an improvements restrictions must be filed for see App of art establishing conveyance records of the former LSA R S owner LSA C C affected immovables a and Building restrictions Id capable of being preserved juridical Such LSA C C art 775 building restrictions uses a Blessey are building of immovable 664 So 2d at 119 120 In their briefs to this court the Holcombs referenced this court to several Defendant Exhibits offered into evidence contradictory hearing plaintiffs motion for a Although April 9 1985 Restrictive Covenant preliminary injunction the Holcombs are correct that the January Restrictive Covenants were Agreement and the June 30 2002 Approval of Developer and Waiver of introduced into evidence at the September 19 2002 hearing on the Holcombs peremptory exception raising the objections of prescription and no right of action The documents were filed into evidence as Holcomb 10 and 12 Holcomb mistakenly attached to other evidence and not located and identified by this court until the Holcombs filed this application for rehearing not at the 22 2003 2 on As noted argued there general plan constructive Holcomb the Louisiana by was of no dispute development knowledge that the that they 05 0470 We conclude that the Holcombs covered 1982 by the The Louisiana terminating all C C or 782 art amendment or denied there has been of the whole La 9 6 06 Civil Code 02 1470 three under 1 780 art The under LSA C C particular art occurred in 2001 and therefore the case 865 restriction finding has not that the developers restrictive or and or a not general Longue v So 2d 863 a entirety 3 876 writ argued that abandorunent Supreme provides a noticeable violation first prescribed under LSA C C mi 11 942 So 2d at 479 1982 and 1984 restrictive activities due to the existence of two the 781 mi pmiies have The Holcombs argue in the alternative that their by amending See Diefenthal review of the record in its s for Furthermore the Louisiana 782 court limited the abandonment under LSA LSA C C 869 So 2d 883 a methods 7 1 04 reasonable factual basis for the trial Cosby v II Cosby by reference incorporated 4 Cir App La 4 2 04 Comi has detennined that 781 gave Cosby 475 a part of the general development which provides peremption abandorunent of a plan filed and Restrictive Covenants two year La an 942 So 2d 471 Front Lot is termination under LSA C C 04 0366 case was prospective purchasers part of a building restriction plan 2 Vue Foundation the time this properly filed and that they were 1984 Restrictive Covenants Wedgewood Acres at building restrictions herein constituted of their contents to all Inc Trucking Supreme Court William covenants King were covenants of the Front Lot is not prohibiting commercial separate waivers granted In effect amended use or by the Holcombs argue that the telminated pursuant 3 to them to LSA C C one of existing art 780 so as to release their Front Lot from all restrictions recorded in 1984 were part of the restrictions when the building Louisiana Civil Code miicle 780 restrictions terminate Building establishes or them In absence the restrictions may be amended or in provided as such of provided the building provision terminated for the whole that act or a part of by agreement of owners representing more than one half of the land area affected by the restrictions excluding streets and street rights of way if the restrictions have been in effect for at least fifteen years or by agreement of both owners representing two the restricted area thirds of the land land affected affected and area two thirds of the by the restrictions excluding streets and owners street of the rights of way if the restrictions have been in effect for more than ten years The restrictions for the are found in Sections 1 Covenants and 7 plan of development and 16 of the 1982 that are significant Wedgewood to this case Acres Restrictive provide 1 All tracts used for none are hereby designated as residential and other than residential purposes No building be tshall hey shall be placed or permitted to remain any tract other than one single family dwelling not to exceed two and one half stories in height with the usual and appropriate out buildings enclosed barns and private garage and or carpOlis designed to house no fewer than erected altered two on automobiles 7 No house trailers kept store d way in any manner No or a maintained structure basement tent shack for or trucks shall be any lot servitude or right of which would detract from the appearance of the repaired subdivision tract buses commercial vehicles or of any other out prolonged period on building of time appearance of the subdivision unless trailer temporary character so shall be allowed as to on from detract any the approved by developer 16 building commercial activity No conducted shall stIucture or be used to operate any shall be any tract and no commercial activity lot in this subdivision unless approved on from any by developer Emphasis supplied The Holcombs offer two 1984 Restrictive Covenants documents which as proof that they incorporated 4 the 1982 bound by the Wedgewood Acres are not Restrictive Covenants executed 1 a January by William King the 9 Restrictive Covenant 1985 and 2 1985 Waiver a June 30 executed of Developer and Waiver of Restrictive Covenants Agreement 2002 Approval the by William King 2002 Waiver Holcomb testified that when he and his wife Mr Acres Wedgewood permission authentic to 1985 William operate their ttucking business and act in Subdivision specifies purchased King them gave The 1985 Waiver Lot P was in written executed by in pertinent part undersigned developer does hereby grant permISSIOn to the undersigned property owner Harry H Holcomb Jr to enter through public access and park on his premises his truck used in his profession T he Be it fmiher understood that for nonnal maintenance but Holcomb cannot maintain this truck can commercial into enter maintenance in any form Holcomb structure for the is allowed to construct and maintain housing of this truck subdivision restrictions and does not as long a permanent it is built to other as detract in any manner from the appearance of the subdivision Detraction from the general appearance of the subdivision shall be determined by the developer Emphasis supplied When Lot P in the Front Lot on Ben Wedgewood Acres Subdivision Fugler Road the Holcombs did did the Holcombs procure a new Front Lot because the 1985 Waiver does not property owner as specify a are exchanged perform a title search developers effective in to the nor Regardless regard patiicular piece specific in 1992 for to their of property undersigned namely Holcomb In response construed equally contained in the 1985 Waiver rights not written waiver from the the Holcombs argue that the 1985 Waiver is rather the was the applicable plaintiffs to submit that even the Front Lot under the 5 if the 1985 Waiver should be tenns of the Wedgewood Acres Restrictive Covenants the 1982 together established the only William King signed the Wedgewood trailers or Wedgewood 1985 Waiver maintained Shirley King did any lot on servitude or not Court there is servicing and no provision for a on detracts from the appearance of the subdivision the developer in any event and is this to release property covered the manner house the was term subject Cosby which would of Section 7 and pOliion property in not repaired by the Louisiana a manner which to the discretion of II 942 So 2d at 477 of the restrictive covenant general plan of development from only discretion2 the developers retained under Section the presence of shack or other stIucture a out the Louisiana building Supreme construction of the for Court a outbuilding Cosby plaintiffs did not exercised pursuant to s to approve However noted object II 942 So 2d at 473 developer William King was tent prolonged period ofthne the 7 trailer basement of any temporary character The Holcombs also may argue that the commercial 2 7 of the particular restriction would be invalid The by by store d kept As noted strictly prohibited Any attempt by the developers during the agreement be waiver of this maintaining commercial tlucks sign clarify Section in any right of way detract from the appearance of the subdivision Supreme not However Section 7 is clear that trucks shall or Shirley King Acres Restrictive Covenants Acres Restrictive Covenants buses commercial vehicles and King William the 1985 Waiver states its purpose is to Moreover 1982 invalid Walver IS n as to the Holcombs 2 activity on their lot was discretionary approval under plan does not specifically limit the power ofthe developer by the setting validity of the developer s actions are to be judged by whether he acts and in good faith See Cosby II 942 So 2d at 476 Reasonableness is evaluated by looking to reasonably 4626 Corp v the purpose behind imposing restrictions upon propeliy contained in the general plan The 1982 writ denied 332 So 2d 800 La 1976 Merriam 329 2d So 885 889 La App 1 Cir Wedgewood Acres Restrictive Covenants are clear All tracts are hereby designated as residential and they shall be used for none other than residential purposes To the extent the general of guidelines or standards the 6 Section 16 of the authority the 8 23 06 690 only can must be considered in the 938 So 2d 1084 Each provisions so provision LSA C C mi 2050 to approve the use 1089 in that each is 775 and Head The Holcombs offer after the present suit 41 290 Gray 06 2353 La 15 12 06 La in interpreted under Section 16 the contract developers structure for commercial one light of the lots of commercial vehicles activity filed 2002 Waiver 2 Cir 945 So 2d of the other as a whole right and to approve excepting or App retained the the keeping trucks in the altelnative that their Front Lot by the was v of the entire framework of the given the meaning suggested by the or including authority granted the developers context writ denied maintaining the restrictive covenants defined within Section 16 contract must be building developers retained light of the limitation placed in Section conducting of commercial activity from storing repairing to a As such of a art as But the be exercised in See LSA C C general plan the activity conducting of commercial activity Section 16 7 certain other to approve under Section 16 We agree that the building restrictions was freed from signed by William King four months The 2002 Waiver gave the Holcombs permission operate Holcomb Trucking from their Front Lot This document was filed in the public records of Livingston Parish on July 1 2002 William King declares pertinent pmi A B It by me and the Holcombs that the Restrictive 1985 to be Covenant Agreement we executed on January 9 applicable to the parcel now owned by Harry and Joyce Holcomb I declare the Restrictive Covenant Agreement executed on January 9 1985 to be applicable to the parcel now owned by Harry and Joyce was intended Holcomb C hereby declare that Harry and Joyce Holcomb are hereby exempted from the restrictive covenants and further that they are hereby permitted to 1 Operate Holcomb Trucking from the parcel they now own and I occupy 7 in Bring trucks and trailers owned operated by Holcomb Trucking and or Hany Holcomb onto said property for the purposes of parking cleaning and maintenance Maintain outbuildings and equipment needed in the operation of said trucking company and the trucks and trailers operated by it Park store and maintain the school bus es operated by either Hany or Joyce Holcomb 2 3 4 third party providers come to the property for the purpose of delivering parts material supplies or other items 5 Have needed for any of the above activities or to provide service for any of the vehicles operated by Holcomb Trucking and or Harry and Joyce Holcomb Engage in any other activities needed for the operation of said 6 trucks trailers and buses Emphasis supplied only William King signed As with the earlier 1985 Waiver purporting However to waive the Danon Shirley King the specifically identify adjacent to but The on Waiver 2002 covenants the provided in the not on may of period a act that of time 1977 Revision Comments 1982 to it only The termination 780 art agree upon is upon the b Wedgewood Acres Restrictive as property the residential to of restrictive which provides These all covenants are to a provision covenant for termination of an for tennination event 865 So 2d at 882 Covenants run LSA C C upon the art twenty five 25 provides binding persons claiming under them for a period of years from the date these covenants are recorded 8 780 Section 18 of the with the land and shall be parties and all use terminate all 18 on in One such mode of termination that happening Diefenthal remove it in effect seeks Front Lot establishes them or to only purports that lot contractually patiies lapse witness outside of Wedge wood Acres Subdivision agreements is provided for in LSA C C as a The 2002 Waiver also the Front Lots property affected referring requirement from the Holcombs restrictive as King and Michele King joined William King the restrictive covenants establishing fails to building restrictions Shirley King signed the affidavit after which time said covenants successive ten years periods of majority of the owners change said When the development established was the in 1982 3 in were in adopted Shirley King for Wedgewood covenants of Section 3 for to the a of the 1982 Wedgewood in 1984 and made are shall be 1984 May accordingly the restrictive expiration act as by reference provided for in the As such Section 18 covenants are binding years from the date of recordation to covenants Acres Restrictive Wedgewood exactly upon Acres Subdivision and part of this Acres Subdivision Any attempt by the developers part prior part covenants period of no less than twenty five 15 or restrictive covenants covenants adopted and restrictive exception restrictive an of the Front Lots the document referenced the restrictive by William Covenants automatically extended for unless instrument signed by the the lots have been recorded agreeing to in whole covenants restrictive stated that those With the of shall be for December terminate the restrictions in whole of that term is invalid See Diefenthal a or 865 So 2d at 883 CONCLUSION Building restrictions are monetary value of propeliy App 1 Cir means 4626 Corp writ denied 332 So 2d 800 planned developments terminate a prior to the have a that modifications to the date building v insuring Merriam La 1976 reasonable expiration of expectation provided the lasting aesthetic 329 So 2d 885 Residents choosing to La live in that the restrictions will not in the terms of the agreement and restrictions will be reasonable and maintain the essential character of the 889 and community for the benefit designed to of all residents incorporation of an earlier restrictive covenant agreement into a later agreement is a renewal ofthe terms of the original agreement in effect restarting the delay within which the restrictive covenant agreement is binding Diefenthal 865 So 2d at 883 It is unnecessary for this court to address the issue for purposes ofthis appeal At least one circuit has held that 9 The 1984 Restrictive Covenants which Acres Restrictive Covenants have failed to establish plans For the judgment on a are foregoing assessed the Holcombs Front Lot and the Holcombs valid waiver from the restrictions contained in the of the trial court appeal cover incorporate the 1982 Wedgewood reasons we maintain our granting the plaintiffs to the appellants a earlier decree affirming the preliminary injunction Holcomb Trucking general Inc 4 Costs Harry H Holcomb and Joyce M Holcomb AFFIRMED definitively disposed of after a full trial under ordinmy process even though the hearing of the summary proceedings to obtain the 1 preliminmy injunction might address issues on the merits McCurley v Burton 03 1001 La App 4 The principal demand for Cir 4 2104 879 2d So 186 a permanent injunction 189 10 can only be WAYNE COSBY FITZGERALD KARl FITZGERALD STAN MCDONALD STEVENS KAREN WILLIAMS JOHN NUMBER 2003 CA 2423R KEITH CARL WILLIAMS COURT OF APPEAL AND PETER OELSCHLAEGER FIRST CIRCUIT VERSUS STATE OF LOUISIANA HOLCOMB TRUCKING INC HOLCOMB AND JOYCE M HENRY H HOLCOMB ON REHEARING BEFORE it CARTER J C PARRO PETTIGREW MCDONALD AND WELCH JJ PETTIGREW J CONCURS IN PART AND DISSENTS IN PART AND ASSIGNS REASONS PETTIGREW J concurring in part and dissenting in part I agree with the I must reasons La reversed and App Trucking Inc a rehearing should be granted respectfully dissent from the majority s ultimate finding for the assigned 03 2423 majority that in this court s earlier 1 Cir remanded 05 0470 12 17 04 opinion Cosby unpublished v Holcomb Cosby I Trucking which by the Louisiana Supreme Court in Cosby La 9 6 06 942 So 2d 471 Cosby II decision v same Inc was Holcomb

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