55 So. 3d 931
La. Ct. App.2011Background
- Port Esplanade condominiums include two buildings (Dauphine- and Esplanade-facing); Dauphine Owners sue to invalidate Second Amendment transferring pool and related Common Elements to Esplanade Owners.
- Second Amendment adopted July 31, 2002; Esplanade Owners argued it reclassified Common Elements to Limited Common Elements; Trust (Dauphine predecessor) did not join but later sold to Wilkinson subject to the Second Amendment.
- Trust later transferred its Dauphine units to Wilkinson with sale language stating the transfer was made, executed and accepted subject to the Second Amendment.
- Association argued unanimity not required or that Trust confirmed the Amendment, or that the Amendment was only relatively null; Dauphine Owners argued lack of unanimity invalidates the transfer.
- Trial court granted summary judgment for Association; on de novo review, court held unanimity achieved by Trust’s confirmation in the transfer to Wilkinson; the Second Amendment is relatively null and was thus confirmed.
- Final decree affirms dismissal with prejudice in favor of the Association against the Dauphine Owners and related Esplanade Owners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is unanimity required to re-designate Common Elements to Limited Common Elements? | Dauphine argues unanimity of all unit owners required. | Association contends 66.66% suffices per Declaration. | Unanimity required; re-designation invalid without all-unit-owner consent. |
| Did the Trust’s later confirmation supply the needed unanimous consent? | Trust's lack of initial participation left consent incomplete. | Trust’s confirmation via sale subject-to language sufficed. | Trust’s confirmation supplied unanimous consent; Wilkinson bound. |
| Is the Second Amendment absolute nullity or relative nullity, and can it be confirmed? | Relies on relative nullity; cannot be confirmed. | Argues not absolute nullity; can be confirmed by subsequent acts. | Second Amendment is relatively null and can be confirmed; it is binding. |
| Does the public-recorded Second Amendment meet statutory/constitutional requirements for conveyance of immovable property? | Public-recording alone suffices; issues of precision moot. | Need for unanimous consent and proper description; title impacts. | Second Amendment validly recorded and enforceable as to described immovable property. |
Key Cases Cited
- Hutchinson v. Knights of Columbus, Council No. 5747, 866 So.2d 228 (La. 2004) (de novo review of summary judgments cited standard)
- Independent Fire Insurance Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (summary judgment standard on appeal)
- Lingoni v. Hibernia Nat’l Bank, 33 So.3d 372 (La.App. 4 Cir. 2010) (de novo review of summary judgment)
- Brungardt v. Summit, 7 So.3d 879 (La. App. 4 Cir. 2009) (evidentiary-review standard when trial court excluded evidence)
- King’s Joint Venture v. Marino, 827 So.2d 521 (La.App. 4 Cir. 2002) (principles on admissibility and contract interpretation)
- Frazier v. Green Steel Building, Inc., 409 So.2d 1290 (La.App. 4 Cir. 1982) (parol evidence rule application)
- Arkla, Inc. v. Maddox and May Bros. Casing Service, Inc., 624 So.2d 34 (La.App. 2 Cir. 1993) (contract and evidence rules in quasi-contract context)
- Leonard v. Lavigne, 153 So.2d 544 (La.App. 1st Cir. 1963) (constructive notice and obligation running with land)
- Eastover Property Owner’s Ass’n., Inc. v. Cochrane, 848 So.2d 710 (La.App. 4 Cir. 2003) (conditioned sale implying ‘subject to’ obligations)
- Meaghan Frances Hardcastle Trust v. Fleur de Paris, Ltd., 917 So.2d 448 (La.App. 4 Cir. 2005) (confirming relatively null contract by subsequent conduct)