Oak Harbor Property Owners Association, Inc. VS The Millennium Group I, LLC

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1317 W OAK HARBOR PROPERTY OWNERS ASSOCIATION INC VERSUS THE MILLENNIUM GROUP I L C 7udgment Rendered MAY 2 8 2013 On Appeal from the 22nd 7udicial District Court In and for the Parish of St Tammany State of Louisiana Trial Court No 2010 15018 The Honorable Peter J Garcia Judge Presiding Judith Otero Mandeville Attorney for Plaintiff Appellee Oak Harbor Property Owners Louisiana Association Inc Scott T Winstead Attorneys for Defendant Appellant The Millennium Group I L C Candace R LeBlanc New Orleans Louisiana BEFORE PARRO WELCH AND KLINE JJ Judge William F Kline Jr retired serving ad hoc by special appointment of the Louisiana Supreme Court lT uvS C Ga v er Gl P KLINE J This is an appeal by defendant The Millennium Group I L C Millennium following the granting of a motion for summary judgment in favor of plaintiff Oak Harbor Property Owners Association Ina Oak Harbor In addition the trial court awarded damages and struck affirmative defenses for failure to comply with discovery We affirm FACTS AND PROCEDURAL HISTORY Oak Harbor is a non homeowners association for the residents of a profit development known as the Oak Harbor Subdivision which is located south of the city of Slidell Louisiana in St Tammany Parish The Oak Harbor Subdivision is subject to certain restrictive covenants Millennium purchased a total of twenry 20 different lots in the Oak Harbor Subdivision Millennium lots on August 20 2003 and September 7 2007 All of the properties purchased by Millennium are subject to several servitudes including the Restated Declarations of Covenants Conditions and Restrictions for Oak Harbor Subdivision Restrictions dated June 26 1989 The Millennium lots are also subject to the Supplementary Declaration of Covenants Conditions and Restrictions for Oak Harbor Boater Service Area dated July 28 1994 Supplementaxy Declaration The Restrictions set forth assessments for each lot owner Should the assessments not be paid Article VI provides for late charges to be assessed on delinquent assessments as well as interest costs and attorney fees incurred to bring any action at law or to perfect a s lien to collect from the owner Article VI of the Restrictions also provides for the process by which the lien may be perfected as follows Section 3 Notice of Lien No action shall be brought to foreclose the Assessment lien or to proceed under the power of sale herein provided until thirty 30 days after the date a Notice of Claim of Lien is deposited in the United 2 States mail certified or registered postage prepaid to the Owner of said Unit and a copy thereof is recorded by the Association in the proper public records of the Parish of St Tammany State of Louisiana which shall then constitute the Assessment lien against that s s Member Unit The Notice of Claim of Lien may be filed at any time after the eof the thirty 30 day period following the irarion Delinquency Date The Notice of Claim of Lien must recite a good and sufficient legal description of any such Unit the record Owner ar reputed Owner thereof the amount then claimed which may include interest on the unpaid Assessment at the maximum rate permitted by law late charges costs and attorneys fees in connection with the debt secured by said lien and the name and address of the Association Beginning with the 2004 annual assessment Millennium did not pay any assessment for the twenty lots that it owns On January 14 2008 Oak Harbor recorded a Notice of Claim of Lien Notice in the Parish of St Tammany for the amounts then due for assessments late fees future unpaid assessments maintenance charges interest costs and attorney fees incurred by Oak Harbor s A copy of the Notice was mailed to Millennium on February 7 2008 but was not sent by certified mail registered mail or personal delivery A Notice showing the amounts due was mailed to Millennium by letter dated November 28 2008 sent by certified mail return receipt requested to Millennium agent for service of s process The letter was received on December 1 2008 Additional correspondence and a second Notice showing the amounts due were mailed to s Millennium counsel of record certified mail return receipt requested on June 29 2010 this letter and Notice were received on July 1 2010 Oak Harbar filed suit on August 6 2010 seeking judgment for then assessments late fees outstanding any future unpaid assessments special assessments maintenance charges late fees interest and for all costs charges and attorney fees incurred in the filing of the s lien After a Rule to Show Cause the trial court ordered Millennium to respond to certain discovery within five days and to pay Oak Harbor costs and attorney s s 3 i fees Millennium failed to complq with the orde the court As a result the trial rof court struck the affirmative defenses contained in Millennium sanswer to the petition and barred Millennium from raising those defenses at any trial or hearing of any motion Subsequently Oak Harbor filed a motion for summary judgment which the trial court granted awarding damages It is from this judgment that Millennium appeals ASSIGNMENTS OF ERROR Millennium assigns the following as error 1 that Oak Harbor lien was recognized even though the trial court found s it to be defective that 2 the trial court erred in finding no genuine issues of material fact granting the summary judgment and that 3 the trial court erred in striking the affirmarive and defenses of Millennium for failing to comply with a discovery order STANDARD OF REVIEW In determining whether summary judgment is appropriate appellate courts review summary judgment de rovo under the same criteria that govern the trial s court determination of whether summary judgment is appropriate Brassette v Exnicios 11 La App 1 Cir 5 92 So 3d 1077 1081 writ denied 1439 12 14 1583 12 La 11 100 So 3d 831 citing Sanders v Ashland Oil Inc 96 12 9 1751 La App 1 Cir 6 696 So 2d 1031 1035 writ denied 97 La 97 20 1911 97 31 10 703 So 2d 29 Furthermore an appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law Brassette 92 So 3d at 1081 Because it is the applicable substantive law that determines materiality whether a particular fact 4 I in dispute is material can be seen only in light of the substantive law applicable to the case Id Further when addressing legal issues a reviewing court gives no special weight to the findings of the triai court Campbell v Markel American Ins Co 1448 00 La App 1 Cir 9 822 So 2d 617 620 writ denied 01 La O1 21 2813 02 4 1 805 So 2d 204 Instead after conducting its de novo review of questions of law the reviewing court renders a judgment on the record Campbell 822 So 2d at 620 LAW AND ANALYSIS Whether Lien Comqlied with LeEal Requirements Millennium asserts that the lien filed by Oak Harbor is invalid since Oak Harbor did not comply with the requirements of La R 9 and La R S 1145 S 1146 9 which Millennium claims govern privileges on immovables for charges or dues of an association of owners Louisiana Revised Statutes 9 sets forth 1145 requirements which include that the association of owners file a sworn detailed statement to perfect a privilege Louisiana Revised Statutes 9 details what is 1146 required to be contained in the sworn detailed statement and requires that the statement be commensurate with the filing for the registry of the privilege served upon the delinquent owner by certified mail registered mail or personal delivery Millennium claims that the lien was not sent to it commensurate with the filing of the Notice and that Oak Harbar did not attempt to provide a sworn detailed statement until November 28 2008 more than ten 10 months after the Notice was recorded Furthermore the detailed statement was not signed and verified by an officer or agent of Oak Harbor as required by La R 9 S 1146 Therefore Millennium claims Oak Harbar lien is invalid there is no valid s 5 privilege upon Millennium property and the motion for summary judgment s should have been denied Oak Harbor response is that it was not required to comply with La R s S 1 9 45 and 9 since its Restrictions contained provisions as to how to perfect 1146 a lien Oak Harbor points out that La R 9 S 11413 Astates that only to the extent that restrictive covenants are silent do the provisions of the Louisiana Homeowners Association Act apply See La R 9 et seq S 1141 1 Oak Harbor contends that its Restrictions are not silent but contain provisions as to the implementation of assessments the collection of assessments and the enforcement procedures and sets forth the numerous paragraphs in which this information is contained The Restrictions contain a procedure different from the Louisiana Homeowners Association Act for perfecting alien Millennium replies that La R 9which limits the Louisiana S 11413 A Homeowners Association Act to only those associations whose restrictive covenants are silent does not apply to the present case because it is in a different Part of the statute La R 9 S 11413 provides as follows A The provisions of this Part shall be applicable to existing and future residential planned communities whose declarations have been duly executed and filed for registry However this Part shall not be construed to affect the validity or superiority of any provision of a community document Only to the extent the community documents are silent shall of the provisions of this Part apply La R 9 A emphasis added S 11413 Millennium misconstrues the Part referred to above with a SubPart careful review of the Louisiana Homeowners Association Act reveals it A is contained within Part II of the general section entitled Immovables Part B B II contains Subparts A B and C Millennium attempts to limit the effect of La 6 S 1141 to R9 A 3 Revised Statute only Subpart A rather than A 11413 9 refers to to all of Part B II the entire Louisiana Louisiana Homeowners Association Act contained in Part II not just Subpart A as proposed by B Millennium Furthermore La R 9 provides S 1141 In addition to any other remedies provided by law or the community documents for nonpayment of assessments a homeowners association as defined in this Part may utilize the provision of Part III of this Chapter to establish a privilege on lots of I delinquent owners for nonpayment of assessments Emphasis Added Part III contains La R 9 and 9 upon which Millennium S 1145 1146 relies Clearl y the leg islature intended for a homeowners a ssociation to either provide in their restrictions the method for preserving a lien or rely upon the law set forth in La R 9 and 9 To reiterate since the Restrictions in this S 1145 1146 matter are not silent on the perfection of a lien the trial court correctly held that the Restrictions apply The question then becomes whether Oak Harbor correctly complied with its own requirements to perfect a lien The Restrictions require that thirty 30 days must pass following the Delinquency Date which is defined as the date an assessment is due and not paid befare a Notice of Claim of Lien can be filed The Notice of Claim ofLien mixst state a good and sufficient legal description of any unit the amount claimed which can include interest late charges costs and s attomey fees and the name and address of the association 4 Finally the association cannot foreclos on the lien until thirty 30 days after the date a Notice of Claim of Lien is deposited in the United States mail certified or registered Restrictions Article VI Section 1 3 Restrictions Article VI Section 3 4 Restrictions Article VI Section 3 5 Restrictions Article VI Section 3 7 Oak Harbor filed its Notice on January 14 2008 in St Tammany Parish Although it purported to send a copy of the Notice to Millennium on February 7 2008 the letter was not certified However on both November 28 2008 and 7une 29 2010 Oak Harbar sent a copy of the Notice to Millennium by certified mail retum receipt requested Millennium complaint is that the Notice was not sent s commensurate with the filing of the lien or with a sworn detailed statement as required by La R 9 However as discussed above Oak Harbor is not S 1146 required to follow La R 9 since it included the perfection of liens in its S ll46 Restrictions Oak Harbor did follow its own Restrictions and filed its suit on August 6 2010 more than thirty 30 days from the mailing of the Notice 6 Therefore this court finds that the lien was properly perfected by Oak Harbor Whether There are Genuine Issues of Material Fact A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact Gonzales u Kissner 08 2154 La App 1 Cir 09 11 9 24 So 3d 214 217 Summary judgment is properly granted if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law La Code Civ P art 966 Summary judgment is favored and is designed to secure B the just speedy and inexpensive determination of every action La Code Civ P art 966 Aucoin v Rochel 08 La App 1 Cir 12 5 So 3d 197 2 A ll80 08 23 200 writ denied 09 La 3 5 So 3d 143 0122 09 27 On a motion for summary judgment the burden of proof is on the mover If however the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the s 6 Regardless if the November 28 20081etter or the June 29 20101etter applies the suit was filed more than thirty 30 days Iater 8 motion does not require that all essential elements of the adverse party claim s action or defense be negated Instead the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse s party claim action or defense Thereafter the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden I there is no genuine issue of material fact and the mover is entitled to summary judgment La Code Civ P art 966 Robles v E 02 La 2 C zxonMobile 0854 App 1 Cir 3 844 So 2d 339 341 03 28 Oak Harbor the mover supported its motion for summary judgment with the affidavit of Lynne Lagrossa the Secretary and a member of the Treasurer Board of Directors of Oak Harbor with numerous attached documents The evidence submitted by Oak Harbor established that 1 Millennium is the owner of twenty 20 lots located in the Oak Harbor Subdivision the majority of which were purchased in 2003 2 the lots owned by Millennium are subject to the Restrictions of Oak Harbor which have been in effect since June 26 1989 and were supplemented on July 28 1994 3 the Restrictions require Millennium to pay an annual assessment to Oak Harbor 4 Millennium failed to pay the amounts due beginning with the 2004 annual assessment 5 the amounts due were documented by the attachments to the affidavit of Lynne Lagrossa 6 Oak Harbar recarded a Notice on January 14 2008 for then assessments late fees future outstanding unpaid assessments special assessments maintenance charges interest costs and s attorney fees against Millennium 7 a copy of the Notice was mailed to s Millennium agent for service of process on February 7 2008 by regular mail 8 on November 28 2008 a Notice was mailed by certified mail return receipt requested to Millennium agent far service of process 9 on June 29 2010 a s 9 Notice was mailed by certified mail return receipt requested to Millennium s attomey of record 10 Millennium has not paid the first annual assessment assessed in 2004 and has continuously failed to pay the annual assessments and 11 the balance owed by Millennium is 41 66 073 In response to the motion for summary judgment Millennium filed a Motion to Strike s Plaintiff Motion far Summary Judgment and Incorparated Memorandum in Support Thereof Opposition to Plaintiff Alternative sMotion for Summary Judgment Millennium argued in its opposition as it does in this appeal that Oak Harbor did not comply with the requirements of La R 9 S 1145 and 9 to perfect its lien For the reasons set forth above it is the Restrictions 1146 not La R 9 and 9which control the filing of a lien in this matter S 1145 1146 Millennium supported its opposition to the summary judgment with an attached affidavit of Joseph Ascani a representative of Millennium The affidavit of Mr Ascani stated that an unidentified member of the board of Oak Harbor informed Mr Ascani that there would be an abatement or agreement between and the Association and members to pay any monies owed to the Association over an extended period oftime without penalty Mr Ascani also stated that this same board member informed him the Association would not attempt to assert a lien over any property owned by members for unpaid assessments due to the severe damage wrought by Hurricane Katrina Mr Ascani could not remember the s name of t1 board member of Oak Harbor who made the statements about the e abatement and that Oak Harbor would assert a lien The Motion to Strike was based upon Oak Harbors failure to comply with Louisiana District Court Rule 910 which requires a list of essential legal elements and list of material facts not 2 genuinely disputed Oak Harbor filed a Reply Memorandum that contained all the xequirements of Rule 910 curing any possible defect of the Motion for Summazy Judgment 2 g See affidavit of Joseph Ascani attached to Millennium Opposition to Motion for Summary s Judgment 9 See affidavit of Joseph Ascani attached to Millennium Opposition to Motion for Summary s 7udgment 10 Louisiana Code of Civil Procedure article A 967 provides that upporting s and opposing affidavits shall be made on personal knowledge shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein When an affidavit is submitted to defeat a motion for summary judgment it is necessary that the affidavit present factual evid sufficient to establish that the nce moving non party will be able to satisfy his evidentiary burden of proof at trial Lewis v Four Corners Volunteer Fire Dept 08 La App 1 Cir 9 0354 08 26 994 So 2d 696 701 La C art 966 Affidavits that are devoid of P 2 C specific underlying facts to support a conclusion of ultimate facY are not legally sufficient to defeat surrtmary judgment Id at 700 The affidavit submitted by Millennium contains the hearsay of an unnamed declarant an unidentified member of the Oak Harbor Board of Directars The affidavit of Mr Ascani attempts to set forth the testimony of a member of the Oak Harbor Board of Directors without identifying the member or identifying whether this board member had the authority to bind the entire Oak Harbor Board of Directors Millennium offers no evidence as to the position of the declarant or why one board member could orally alter the written restrictions Millennium also does not present any evidence as to when the statements were made how long the abatement was to last or whether anyone else was present There is no evidence in the record of any action taken by the Oak Harbor Board of Directors to abate the assessments owed by members ar the length of the proposed abatement Millennium has not produced factual evidence sufficient to establish that it will be able to satisfy its evidentiary burden at trial that there was an abatement promise sufficient to create a genuine issue of fact Furthermore as our review is de novo we must find that the hearsay statements made by Mr Ascani are not 11 competent evidence See Thomas v Cnmfori Center of Monroe LA Inc 10 0494 La App 1 Cir 10 48 So 3d 1228 1236 Therefore summary judgment 29 was appropriate Trial Court Strikine of Affirmative Defenses Appropriate s Millennium argues that the trial court erred in striking its affirmative defenses in response to Millennium failure to follow an earlier discovery court s order La C art 1471 allows a court to impose sanctions on a party that P refuses to comply with a court order Those sanctions may include s 2 An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing designated matters in evidence 3 An order striking out pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action ar proceeding or any part thereof or rendering a judgment by default against the disobedient party The trial court has much discretion in imposing sanctions for failure to comply with discovery orders and its ruling will not be reversed absent an abuse of discretion Lirette v Babin Farm Inc 02 La App 1 Cir 4 843 1402 03 2 So 2d 1141 1143 When a failure to make discovery occurs it becomes incumbent upon the disobedient party to show that his failure was justified or that special circumstances would make an award of expenses unjust Allen v Smith 390 So 2d 1300 1302 La 1980 There is nothing in the record that justifies the failure of Millennium to comply with the trial court order of September 2 2011 ordering Millennium to s respond to certain discovery within five days and to pay certain costs and s attorney fees to Oak Harbor Millennium offers no explanation for its failure to comply with the trial court order To further compound the matter the trial court s 12 had previously signed a consentjudgment on June 1 2011 wherein the parties agreed Millennium would provide responses to Oak Harbor discovery and would s pay the costs and attorney fees associated therewith Therefore the September 2 s 2011 judgment was the second time the trial court ordered Millennium to respond to the discovery of Oak Harbor The trial court appropriately imposed sanctions a g ainst Millennium according to La P C art 1471 Furthermore the trial court did allow Millennium to raise its affirmative defenses in its memorandum and at the hearing on the motion for summary judgment Therefore this court finds Millennium has suffered absolutely no prejudicial effect due to the trial court sanctions s CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed Costs of the appeal are assessed to appellant The Millennium Group I L C JUDGMENT AFFIRMED 13

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