Bayou Terrace Estates Home Owners Association, Inc. VS Jessica Stuntz
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 1886 BAYOU TERRACE ESTATES HOME OWNERS ASSOCIATION INC VERSUS JESSICA STUNTZ Y Judgment Rendered JUL 10 2012 61 Appealed from TwentyThird Judicial District Court In and for the Parish of Ascension State of Louisiana Docket Number 97 005 Honorable Ralph Tureau Judge Anna E Dow Counsel for Gonzales LA Appellee Plaintiff Bayou Terrace Estates Home Owners Association Inc Mark D Plaisance Counsel for Thibodeaux LA Leroy J Laiche Jr Prairieville LA Appellant Defendant BEFORE Jessica Stuntz WHIPPLE KUHN AND GUIDRY JJ GUIDRY J A homeowner appeals a judgment enjoining her from operating a business out of her home While the appeal of this matter was pending the homeowner filed a peremptory exception urging the objection of prescription with this court For the following reasons we overrule the exception and affirm the judgment appealed FACTS AND PROCEDURAL HISTORY Bayou Terrace Estates is a subdivision located in Ascension Parish for which the Association Bayou Terrace Estates Home Owners Association Inc the was created pursuant to the Louisiana Homeowners Association Act La R 9 1141 to manage and regulate the residential planned S 1141 9 1 community On July 12 2010 the Association filed a petition for injunctive relief against Jessica Stuntz a homeowner in the subdivision to enforce a building restriction that prohibits the commercial use of lots contained in the subdivision In the petition the Association asserted that Ms Stuntz operated a business known as Ink Girl Studio out of her home by which she provided art lessons and painting parties for which she was paid Pursuant to the petition filed by the Association the trial court issued a temporary restraining order TRO ordering Mrs Stuntz to cease operation of the business known as Ink Girl Studio or any other commercial studio on the property located in Bayou Terrace Estates The trial court also set a date for a hearing on the issuance of a preliminary injunction following which it held the matter should be set for a hearing for a permanent 1 Residential planned community or planned community means a real estate development used primarily for residential purposes in which the owners of separately owned lots are mandatory members of an association by virtue of such ownership La R 9 S 1141 7 2 2 According to La R 9 building restrictions may be established to regulate building S 1141 5 standards specified uses and improvements of association property 2 injunction and the operation of the TRO was extended to the date of the hearing for the permanent injunction A hearing for permanent injunctive relief was set for October 22 2010 however prior to that date the Association filed a joint motion for contempt and motion in limine against Mrs Stuntz for her failure to comply with the TRO ordering her to stop the operation of her business in the subdivision and for her failure to provide certain discovery responses Thereafter Mrs Stuntz filed an answer to the petition for injunctive relief and the matter proceeded to a bench trial which convened on November 30 2010 Following the hearing the trial court ruled in favor of the Association holding that the art lessons Mrs Stuntz provided in her home is a commercial enterprise and immediately enjoined Mrs Stuntz from operating a commercial enterprise in her home at 13445 Bayou Terrace St Amant Louisiana in Bayou Terrace Estates The trial court declined to find Mrs Stuntz in contempt but left the petition open to allow the Association to re urge contempt in the event Mrs Stuntz continued to provide art lessons in her home It is from this judgment that Mrs Stuntz appeals and on appeal Mrs Stuntz has filed a peremptory exception urging the objection of prescription DISCUSSION Subdivision restrictions governing the use and maintenance of lots contained within the Bayou Terrace Estates subdivision were first established by the contractor that created the subdivision Achord Construction Inc in 1991 The original restrictions provided that the property comprising the subdivision could be used only for residential and campsite purposes all commercial or other activities incompatible with the same are prohibited Over the years the restrictions were amended and restated and in August 2006 four contiguous 3 subdivisions combined amended and restated the restrictions to apply to all four of the subdivisions including both filings of the Bayou Terrace Estates in a document titled Amended Act of Restrictions for the Bayou Terrace Estates Subdivision Bayou Terrace Estates Subdivision Second Filing Canal Bank Subdivision First Filing and Canal Bank Subdivision Second Filing filed as Instrument 00645571 with the Ascension Parish Clerk of Court At issue in this appeal is the interpretation and application of restriction 1 5 under the section titled GENERAL COVENANTS OBLIGATONS AND RESTRICTIONS which provides Except as otherwise provided in paragraph 5 relative to storage 2 1 buildings garages and other out buildings used for storage purposes all Lots shall be used solely for single family residential purposes and no more than one single family residence shall be built upon any Lot The use of a Lot for other forms of residential use or for commercial institutional medical retail religious or commercial storage uses of any kind is strictly prohibited The foregoing shall not be interpreted to prohibit a personal office from being located within the residence On appeal Mrs Stuntz contends that the trial court erred in finding that the art lessons she gives are a commercial enterprise As she argues in her brief she is carrying on her profession in her home and not operating a business trade industry or commercial enterprise as generally understood At trial Mrs Stuntz testified that she moved into the subdivision in October 2006 and that she provided art lessons in her home since moving into the subdivision As she explained s It no more than just a group Art lessons basically Sometimes it s a group of people that know each other and they actually re celebrating something like a birthday so we call it a painting party s It an art lesson done in a group form and they come sometimes they come to me sometimes I go to them different locations B they can come and arrange by appointment I walk ut them through usually is one painting Like they to choose a re painting ahead of time that they want to try to do their own version of and I help them do that 4 Mrs Stuntz admitted that she is compensated for the lessons she provides and explained that the amount she charges depends on what the person wants to paint because she provides the supplies So the larger the painting the more supplies she must provide such as a larger piece of canvas which cost more However when asked if she were just selling the canvases and paint Mrs Stuntz replied I selling my services to teach art but included in the amount she m charges are the costs of the art supplies While Mrs Stuntz at one point characterized the lessons she gives as i s t more like we have people over than it is a business she admitted the lessons are not a personal party that she and her husband give for people they know but the lessons are part of my income At her art parties Mrs Stuntz testified that she could accommodate a group ofup to sixteen people in her home but on her website she limits the groups to up to ten persons She also stated that the lessons are open to the general public and that she does not have any restrictions on who she allows in her home for the lessons Building restrictions are charges imposed in pursuance of a general plan governing building standards specified uses and improvements and may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan La C arts 775 and 778 Generally doubt as to the existence validity or extent of building restrictions is resolved in favor of the unrestricted use of the immovable See La C art 783 However the provisions of the Louisiana Homeowners Association Act La R 9 et S 1141 1 seq supersede the Civil Code articles on building restrictions in the event of a conflict La C art 783 Regarding interpretation of building restrictions on property regulated by a homeowners association La R 9 provides that S 1141 4 he t existence validity or extent of a building restriction affecting any 5 association property shall be liberally construed to give effect to its purpose and intent Fern Creek Owners Association Inc v City of Mandeville 08 1694 p 11 La App 1st Cir 6 21 So 3d 369 377 09 30 While Mrs Stuntz argues that the art lessons she provides are not in violation of restriction 5 the Association as explained by the Board president 1 Frank Coates takes a different position Mr Coates testified that the Board views restriction 5 as prohibiting no commercial business being conducted out of a 1 home and that any services rendered at that home and someone paying for these services at that residence or location is strictly prohibited Additionally Judy Grounds who holds the position of treasurer with the Board explained that Mrs s Stuntz activities violate restriction 5 because she has customers come to and 1 performs services out of her home as opposed to simply having a personal office that does not interfere with the operations of the subdivision Although personal office is not defined or described in the Association restrictions our review of cases involving similar restrictions on the commercial use of residential property reveals that mere administrative or managerial activities or even insubstantial provision of services in the home have been found not to violate the intent of such provisions See Schwab v Kelton 405 So 2d 1239 1245 La App 1st Cir writ denied 407 So 2d 749 La 1981 Moreover Mrs s Stuntz actions of providing art lessons in her home are clearly more analogous to those cases in which the activities of the homeowners were found to be in violation of residential use only restrictions See Ellis v Dearing 435 So 2d 1107 La App 1st Cir writ denied 441 So 2d 765 La 1983 Mulberry Association Inc v Richards 369 So 2d 185 La App 4th Cir writ denied 371 So 2d 1345 La 3 The trial court found that there is a distinction between having an office in your house where you do some administrative functions and they bill from your house make phone calls from your office as opposed to having an enterprise where you making money from activities being re conducted within your home such as those being conducted by Ms Stuntz 6 1979 Oak Ridge Builders Inc v Bryant 252 So 2d 169 La App 3d Cir writ denied 253 So 2d 384 La 1971 Woolley v Cinquirganna 188 So 2d 701 La App 4th Cir 1966 The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof must be founded on a preponderance of the evidence Thus the standard of review for the issuance of a permanent injunction is the manifest error standard Fern Creek Owners Association Inc 08 1694 at p 10 21 So 3d at 376 Considering the evidence presented and jurisprudence interpreting similar restrictions on the commercial use of residential property we cannot say that the trial court erred in granting a permanent injunction based on its finding that the art lessons provided by Mrs Stuntz violated restriction 5 1 While this appeal was pending Mrs Stuntz filed a peremptory exception raising the objection of prescription directly with this court In the exception Mrs Stuntz argues that even if the art lessons she conducts in her home are considered a commercial enterprise the Association should be precluded from enforcing restriction 5 and denied injunctive relief based on the liberative prescription 1 provided under La C art 781 That article states No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation After the lapse of this period the immovable on which the violation occurred is freed of the restriction that has been violated Emphasis added Louisiana Code of Civil Procedure article 2163 allows an appellate court to consider a peremptory exception filed for the first time in that court if pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears of record Thus the exception is properly before this court As previously stated Mrs Stuntz testified that she has been giving art lessons in her home singe moving into the subdivision in October 2006 Moreover 7 she has maintained several websites wherein she advertises the art lessons she provides since 2002 Accordingly Mrs Stuntz asserts that the Association should be barred from enforcing restriction 5 and receiving injunctive relief because 1 she has openly been providing ark lessons in the subdivision in excess of the two year prescriptive period contained in La C art 781 For the purpose of La C art 781 some activity which is noticeable and apparent must occur on the lot and at that point the two year prescriptive period commences Investment Management Services Inc v Village of Folsom 00 0832 p 7 La App 1 st Cir 5 808 So 2d 597 604 Moreover it has been 01 11 observed that La C art 781 has been interpreted and applied to provide that begins to run from the commencement of a noticeable violation rather than the day the plaintiff acquires knowledge of the violation Ordinarily the prescription commences when the violation of the restriction is neither secretive nor clandestine An activity conducted on a modest scale The two year prescription may not be noticeable or may not be a violation at all but the same type of activity if expanded may become a noticeable violation N A Yiannopoulos Predial Servitudes 197 at 455 in 4 Louisiana Civil Law Treatise 3d ed 2004 footnotes omitted With these principles in mind mere advertisement without some correlating noticeable activity on the immovable property at issue would be insufficient to commence prescription under La C art 781 Furthermore we decline to hold that mere maintenance of a website or advertisement on the internet is sufficient to establish a noticeable violation Other than her assertion of the maintenance of various websites to advertise her services since 2002 Mrs Stuntz testimony at trial reveals that the earliest her s actions of providing art lessons in her home became noticeable was in the fall of 2009 At trial Mrs Stuntz identified several members of the subdivision who had taken or were taking art lessons in her home but she could not recall any member taking a lesson in her home before 2009 She explained that a that point 1 t 8 t wasn aggressively marketing It was all on the website but it was very passive She also admitted that in fall 2009 she handed out postcards in the subdivision and placed a sign in her yard advertising her art lessons When she received the letter from the Association Board in March 2010 indicating that she was in violation of the subdivision restrictions regarding the posting of signs and parking in addition to restriction 5 Mrs Stuntz stated she immediately removed the sign and made 1 arrangements for parking The Association filed its petition for injunctive relief on July 12 2010 prior to the lapse of two years from the fall of 2009 when Mrs s Stuntz actions of providing art lessons in her home became noticeable Thus the Association action for injunctive relief to enforce restriction 5 1 s is not prescribed and accordingly we overrule the exception CONCLUSION For the foregoing reasons we affirm the trial court finding that the art s lessons given by Mrs Stuntz in her home is a commercial enterprise in violation of the subdivision restrictions of the Bayou Terrace Estates Homeowners Association Accordingly we affirm the permanent injunction issued by the trial court Moreover finding that prescription has not accrued we overrule the peremptory exception based on prescription filed by Mrs Stuntz All costs of this appeal are cast to the appellant Jessica Stuntz AFFIRMED 9
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