Aaron R. Cathcart and Betty Leboeuf Cathcart VS David Morace and Paula Morace, Ronald Patten and Joyce Patten, Elwood Alberts, Jr. and Cynthia Alberts, John Markow and Patricia Markow, Patricia Hoppe, Keith Morgan and Theresa Morgan, Debra Brooks, Robin Joubert, Sally Ansel, Frankie Allen and Kenneth B

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NOT DESIGNATED FOR PUBILCATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 1018 AND 2008 CW 0174 AARON R CATHCART AND BETTY LEBOEUF CATHCART VERSUS DAVID MORACE AND PAULA MORACE RONALD PATTEN AND JOYCE PATTEN ELWOOD ALBERTS JR CYNTHIA ALBERTS JOHN MARKOW AND PATRICIA MARKOW PATRICIA HOPPE KEITH MORGAN AND THERESA MORGAN DEBRA BROOKS ROBIN JOUBERT SALLY ANSEL FRANKIE ALLEN KENNETH BYRD JR Judgment Rendered MAY 1 3 2009 Appealed from the Twenty Second Judicial District Court In and for the Parish of Washington State of Louisiana Suit Number 94 605 Honorable Peter Garcia Michael D Presiding Counsel for Plaintiffs Conroy K Conroy Stephen Tom Snyder Jr Appellees Betty Cathcart Aaron R Cathcart and Rebecca E Fenton Metairie LA William J Crain Covington Counsel for Defendants LA David Morace Paula Morace Ronald Patten Patten Jr Elwood Alberts Alberts Joyce Cynthia Patricia Keith Appellants Markow John Markow Patricia Morgan Debra Robin Joubert Sally Ansel Morgan Brooks Teresa Frankie Allen and Kenneth j1Cl iIJ V C ffJ6 S c lARRO GIHJiI ti sH j Byrd KUHN GUIDRY AND GAIDRY JJ c r Hoppe J M fZ 4 s Jr GUIDRY J Defendants and Kenneth summary Patten Morgan Debra Brooks Robin Joubert Sally Ansel Teresa Hoppe Keith Morgan granting Joyce Cynthia Alberts John Markow Patricia Markow Patricia Elwood Alberts Jr Frankie Allen Ronald Patten Paula Morace David Morace judgment the reasons that follow Jr Byrd appeal in favor of from the trial court judgment Betty Cathcart Aaron and plaintiffs s For and remand we reverse FACTS AND PROCEDURAL HISTORY On May 28 1999 Circle T Limited Green Land Limited August 11 Headright Parish acres MaKinley 40 and Section 28 Louisiana Washington Parish to James Circle T and the 2000 Restrictive Covenants for in Thereafter Partnership property consisting of 20 648 August to Aaron acres and 25 on the Bogue Chitto River on the property September 29 2004 Circle T sold a the eastern family hunting no or to west crosses Range A Washington records in fifty foot right of original a to these are acre acre tract to tract beginning October defendants and the related covenants Article 5 designated for private an owner and that any individual 2 411 93 way petition naming sixteen The Cathcarts asserted that parcels of its property premises instrument entitled 10 East the Cathcarts 5 32 the Cathcarts filed the lake and the lake the an portion of its property consisting of guest is allowed unless accompanied by on On Adjacent Property Parcels Situated side of the of sale omitted Article 5 of the restrictive parcels adjacent portion of its 14 2000 2006 defendants owners as from acres Cathy Magee Magees Betty Cathcart Cathcarts running from Highway On and a filed in the conveyance was On October 10 2000 Circle T sold 5 32 Circle T sold 1 South Township 411 93 purchased Magees executed Cove and This document on Circle T not provides use whether owners on 15 acts that and the lake accompanied is a subject trespasser The Cathcarts asserted that the absence of this penalties to article from the restrictive covenants give unrestricted would property through the servitude and would Cathcarts nuisance and the Cathcarts to danger create an unreasonable sought the Cathcarts Accordingly the to access declaratory judgment finding that the properties owned by the defendants burdened the by the restrictive August later to covenants 2000 document and 11 established by Circle T and the sought issuance of a are Magees in preliminary injunction a enjoining the defendants from violating the restrictive be made permanent covenants On May 2007 7 the defendants filed asserting that the restrictive to the lake properties known to adjacent only apply Cove Lake MaKinley as in and are covenants a the lake to property that is in and adjacent Because of the defendants none they urged that judgment summary granted and the Cathcarts suit should be dismissed Thereafter should be 30 2007 the Cathcarts filed judgment and also filed restrictive covenants as opposition an a cross written to motion for summary are not and recorded Therefore the defendants restrictions who according to ambiguous judgment asserting and apply of fact the covenants the property Alternatively the Cathcarts asserted that if to to the Cathcarts the restrictions subsequently acquired extrinsic evidence may be used on May the defendants motion for summary property owned by Circle T and the Magees when the question judgment motion for summary determine the intent of the the determination of which is not entirety of the were are burdened any that the executed binding with the ambiguity parties on exists and intent is appropriately decided a on a motion for summary judgment Following rendered a hearing judgment on denying both motions for summary defendants 3 motion judgment the trial for summary court judgment Additionally the trial court granted the Cathcarts motion for summary judgment finding T he entire 411 93 individual acres parcels therein designated are to Makinley as Cove and the receive the benefits of and are burdened with each and every of the Restrictive Covenants for Makinley Cove and Adjacent Property Parcels Situated in Headright 40 and Section 28 Range 10 East Washington as filed and recorded at Conveyance Book 510 Parish Louisiana folio 429 Instrument No 220674 and at Map 3 Entry 37 on August 14 2000 located in the Office of Conveyances Washington Parish finding no deemed final as After 1915 B just to 1 South Township reason for the trial delay court all issues addressed therein provided by as judgment be C CP art granting the La 1 The defendants filed an appeal from the portion Cathcarts motion for summary judgment and filed writs ordered that the to as portion of the to the panel assigned an judgment denying By order dated April 28 2008 this judgment referred the to hear defendants address the merits of both the appeal and the writ of the judgment application for supervisory their motion for summary court ordered that the writ be appeal Accordingly application in this we will opinion DISCUSSION Article 1915 B Certification The motions for additional claim for 1915 B summary a judgment does preliminary injunction not However the 1 constitute judgment express determination that there is 1915 B judgment at requests for declaratory relief and did involved summary partial a final A just reason partial judgment as a for case only address the Cathcarts not appealable judgment may be certified no issue in the instant final or partial La C C P art judgment after delay La C C P an art 1 In Louisiana J R Messinger Supreme v Court Rosenblum 04 1664 La 3 2 05 held that the 4 894 So 2d 1113 the required designation of finality or certification need not include determination that there is taken from a emphasized so no reason for 1915 B art ideally should provide such court for the reasons in order for delay under La C C P partial judgment that the trial just accompanied by explicit be nor an appeal be to However the court and if it does reasons the standard of review of its certification is whether it abused its discretion RJ 04 1664 at p Messinger court does not that there is novo no provide explicit reasons just reason for 13 14 894 So overriding inquiry designation 2d at 1122 exclusive factors that trial courts appropriate l no just should RJ In those or is required proper reason use in Messinger where the trial written for its determination court was cases RJ for delay to conduct a we as de 04 Messinger conducting this review In of whether there is whether certification is either oral delay the appellate determination of whether the 1664 at pp non 13 894 So 2d at 1122 consider the well as other making the determination of 04 1464 at p 14 894 So 2d at 1122 1123 The for reason judgment from which the defendants delay and designates the judgment However the trial court did not the de forth in R J conclude that the designation has been I our set exclusive factors we From designation give properly novo was 2 3 either oral 04 1664 at p and that the 14 or no appeal written for utilizing the 894 So jurisdiction just 2d non at 1122 of this court invoked Messinger include relationship between the adjudicated and unadjudicated claims The possibility that the need for review might or might not be mooted by future developments in the trial court The possibility that the reviewing court might be obligated to consider the same issue second time and Miscellaneous shortening RJ final for purposes of review of the record proper that there is The a 4 as states explicit reasons Messinger The non exclusive factors listed in RJ 1 any appeal Messinger factors delay economic and solvency considerations frivolity of competing claims expense and the like such the time of trial as 04 1664 at p 14 894 So 2d at 1122 5 Motion for Summary Jud2ment A motion for summary judgment is scale trial when there is 0109 4 p interrogatories and admissions there is genuine matter as a v no An La C C P art together with 966 B 99 2181 Corporation appellate file on 7 p for summary judgment de using the novo consideration of whether summary judgment is 0382 p 9 La 1 st Cir 12 28 06 App Building in the the restrictions common law and owner of an uses Magruder 06 0986 p Building restrictions servitudes 7 27 95 that are owners land that 11 are personal under Blessey a to of Company 2d 226 230 231 to or grant Lieux as they a are are deny a v motion court s Mitchell 06 La C C art rights As real 94 0555 p 8 McHugh 775 development to and Cathcart likened La to predial 1 st Cir App are v 1037 2d 1032 rights building restrictions they inure known general plan governing building immovables and real v generally charges imposed by 960 So the vendor rather general plan Fire Insurance 1st Cir 5 4 07 App Blessey 119 judgment appropriate improvements incorporeal 2d 115 not rights the benefit of all other property are real rights running with the 94 0555 at p 8 664 So 2d at 119 interpreting the restrictive building restrictions existence La La C C art 777 664 So In and is entitled to in Louisiana immovable in pursuance of specified show that criteria that govern the trial covenants occasionally termed standards to 951 So 2d 307 314 restrictive or answers 755 So decision same 03 The motion for 1143 mover La 2 29 00 s full Jones v a any affidavits Independent court reviews the district court avoid pleadings depositions issue of material fact and that the of law Sunbeam if the granted to Schwehm 872 So 2d 1140 2 23 04 should be device used procedural issue of material fact genuine App 1st Cir La judgment summary no a validity or are extent to covenant at be of the issue strictly construed we are mindful of the rule with any doubt as to the building restriction resolved in favor of the 6 unrestricted 97 691 So enforcement as Association Inc Community Inc 96 0898 at p Rogers v 9 691 parties C C La and lead to 18 5 art contract a parties 2045 is a the meanings object of the in interpreted be no interpreted contract as a interpretation parties cannot admissible Diefenthal to v or there is The document Covenants Headright Parish for a written ambiguity 40 and Section 28 Louisiana Each so in a provision that each is Emphasis be contract must be given the meaning as contract to its are susceptible provisions or and to added than the intent of the 561 So 2d 44 51 covenants at 1 South The first 7 more show the intent of the Adjacent Property Township to language employed parol evidence is issue The title of the document refers Cove contract must to establishing the restrictive MaKinley a having the meaning that best conforms Management Corporation into three main sections may be made in interpretation The words of explicit of clarify the ambiguity and Vue clear and are susceptible be ascertained from the Longue contract La C C art 2050 whole However when the terms of one as intent of the common La C C art 2047 Words light of the other provisions suggested by the a further 2046 art 869 So 2d 3 31 04 874 So 2d 158 La C C art 2048 contract and also Hidden Hills see App 3rd Cir When the words of intent La C C must at 147 determination of the given their generally prevailing meaning different 2d So 04 absurd consequences no search of the of 1st Cir interpretation to subject are 03 1447 p 4 La 986 writ denied 04 1082 La Interpretation App La Country Club of Louisiana Property Owners contracts are 9 p Apart from the rule of strict interpretation 147 2d 142 Country Club of Louisiana 96 0898 Domier v 783 art establishing building restrictions documents 984 La C C Inc Owners Association Property 14 2 of the immovable use Parcels Range 10 La 1990 can to East parties be divided Restrictive Situated in Washington paragraph of the document identifies the parties two acknowledge that they and adjacent to are the restrictive the sole covenants of property located and owners that certain lake known to Circle T and the MaKinley Cove as Magees who be to fully more Cummings and Associates dated April the attached map of John G located in shown 9 on 1999 Emphasis added Paragraph which contains the restrictive two entering into the document purpose in to as of the land and lake and for the benefit of parcels that may be the document covenants are the restrictive parties encumbering restriction number five refers for private The Cathcarts assert original 411 93 acre the covenant owned by are referring problematic and in MaKinley tract to the interpreting Cove However tract adjacent Emphasis use to the them resolve this Further In to the lake and the lake covenants to on one parcels as area language what use of that adjacent MaKinley Cove is to or to be located in showing the entire 411 93 a lake the first parcels owned by them being located 8 find we MaKinley Cove in despite the Cathcarts argument the attached The map in the that encompasses the entire 411 93 specifies to the title to the and the this document is the inconsistent geographic as the entire However them parcels owned by to apply support the Cathcarts rely paragraph inconsistency them by subjecting As stated above the covenant refers to identifies those lake establishing restrictive added that the restrictive Additionally though the document refers paragraph of owners through nine speak generally however p Jarcels to the title and then describes the acre use Additionally Emphasis added document the map attached to the restrictive covenants document and future family owners Cove parcels four and six through being designated the to assist in the safe and reasonable The document then lists nine individual restrictions covenants one MaKinley to that the states and Restrictions adjacent parties outlines the language or adjacent map does not acre tract of land and large lake attached was and filed with the restrictive to the reference in the document indicates that the map is attached property parcels in and adjacent to the lake Further though the jurisprudence of this attached to deeds become restnctIve covenants The IS MaKinley adjacent covenant as to adjacent the parties to the benefit of property or next to issue is covenant is MaKinley Cove the the lake is a apply covenant owners property adjacent to referring to to Additionally we do App 1st Cir 5 4 07 stated in dicta in a would have to reasons the entire 411 93 960 So this 2d 1032 properties adjoining it would apply to use MaKinley the lake to property adjacent acres the use to of court be read to beyond its Emphasis added adjoining we those holding property not find that the restrictive parties acres or s e to as to just those portions adjacent appropriately decided opinion the lake in Cathcart MaKinley Cove opinion on a to motion for Magruder 06 0986 La v In that was and the entire 411 93 in the covenant whether the restrictive is determinative of this issue Cove of parcels owners acres footnote that the record reflected to refer to the lake to would have encumbered their property for and the intent of the not find that or other than themselves i question of fact which is 2 convenience next their combined 411 93 ambiguous to conflict with which outlines the purpose of the restrictive paragraph Accordingly for the foregoing at a acres survey maps been extended Cove refers to the 411 93 commonly understood meaning of adjacent of event being for the benefit of owners family and future that may be Otherwise the entire 411 93 show throughout the document The phrase it is used in MaKinley in the second to is also used to times two If Cove not fully more long held that part thereof and control in the unambiguously referring the other However has state to 2 phrase adjacent used twice in necessarily in the deed this rule has description the property a not However covenants used acre case this court interchangeably tract but that for to refer to the entire 411 93 acres Cathcart 06 0986 at p 3 n l 960 So 2d at 1033 1034 n 1 This clearly falls short of a legal determination ofthis issue and we find the Cathcarts argument on this issue to be without merit 9 summary judgment Cir 6 20 97 Sanders 696 So 2d 1031 96 1751 Ashland Oil Inc v pp 6 7 La App 1st 1035 CONCLUSION F or the foregoing reasons we reverse the trial court judgment in favor of the Cathcarts and we remand this further proceedings defendants appellees writ consistent with this application Aaron and All costs opinion of this granting matter to appeal are REVERSED AND REMANDED WRIT DENIED to of summary the trial Additionally Betty Cathcart 10 s we court for deny the be borne by the NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 1018 AARON R CATHCART AND BETTY LEBOEUF CATHCART VERSUS DAVID MORACE AND PAULA MORACE RONALD PATTEN AND JOYCE PATTEN ELWOOD ALBERTS JR CYNTHIA ALBERTS JOHN MOARKPW AND PATRICIA MARKOW PATRICIA HOPPE KEITH MORGAN AND THERESA MORGAN DEBRA BROOKS ROBIN JOUBERT SALLY ANSEL FRANKIE ALLEN KENNETH BYRD JR Irk n GAIDRY J I dissenting respectfully dissent several different and burdened by the the codal articles the expressed rather than a seemingly building on Although the inconsistent ways any restrictions is properly interpretation of obligations intent of the MaKinley Cove term building restrictions factual issue and resolution of the ambiguity resolved as the property to of interpretation of ultimately dispute by used in through application In my view the is thus was a summary legal issue judgment is appropriate Applying were intended within the lake or the to apply to all MaKin ley Cove Lake MaKinley lake and all other tract appropriate See La codal parcels principles I conclude that the restrictions then owned by Circle T and the development which included the MaKinley Cove itself the property parcels immediately adjoining the successively contiguous parcels within the original C C arts Magees 2048 2049 2050 1 and 2053 This 411 93 acre interpretation best conforms to the overall nature of the restrictions the described character of the property and the expressed benefits of attachment of the survey map on the issue of the entire corroborative in resolving tract any or use of the lake Finally plat depicting the entire being subject ambiguity court 2 to tract even is not though the conclusive the restrictions it is relevant and Accordingly I would affirm the trial

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