83 So. 3d 1199
La. Ct. App.2012Background
- HOA sought injunctions against Leopold Holdings for demolishing/removing a storage shed on Lot 16A and for discontinuing a business conducted from the lot.
- Leopold Holdings argues the shed may not be covered by building restrictions, and even if covered, prescription may bar enforcement after two years; the trial court overruled the exception of prescription.
- Shed was placed April 2007; post-Gustav repairs in 2008 elevated the shed and required updates without parish permits.
- HOA alleged the lot is governed by building restrictions that regulate improvements and prohibited commercial use; Leopold argued the restrictions do not apply to the shed and that use constitutes no ongoing business.
- Trial court found no termination by prescription and granted relief to demolish the shed; it denied injunctive relief against a business on the lot; on review, the appellate court affirms non-prescription, reverses denial of the business injunction, and remands for a prohibitory injunction while keeping the shed demolition mandate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the shed is governed by the building restrictions. | HOA: shed is a prohibited improvement under the plan. | Leopold: shed is not governed unless an accessory structure; if governed, still prescription may bar enforcement. | Not clearly wrong; shed governed by restrictions and enforceable. |
| Whether the two-year liberative prescription terminated the rights by interruption or due to acknowledgments. | HOA: Leopold’s acknowledgments interrupted prescription within two years. | Leopold: no interruption proven; arguments insufficient. | Not clearly wrong; interruption found; action not prescribed. |
| Whether Leopold’s use of Lot 16A constitutes a prohibited business use. | HOA: leasing boat slips and related facilities constitutes a business on the lot. | Leopold: uses as a private camp; no business. | Trial court erred in factual finding; there was business use; remand for prohibitory injunction. |
| What injunctive relief should issue regarding the business use and shed. | HOA seeks permanent prohibition of business; shed demolition. | Leopold opposes; only demolition sought for shed and no permanent business ban. | Affirm demolition of shed; reverse denial of prohibitory injunction; remand for permanent ban on business on Lot 16A. |
Key Cases Cited
- Cashio v. Shoriak, 481 So.2d 1013 (La. 1986) (strict construction of building restrictions; ambiguous terms interpreted in favor of least restriction)
- Diefenthal v. Longue Vue Management Corp., 561 So.2d 44 (La. 1990) (interruption of prescription by acknowledgment of right)
- New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 40 So.3d 394 (La.App. 4 Cir. 2010) (interpretation of building restrictions; ambiguity analyzed in light of context)
- Walters v. Besse, 643 So.2d 398 (La.App. 3 Cir. 1994) (standard for reviewing prescription peremptory exceptions; interruption evidence considered)
- Head v. Gray, 938 So.2d 1084 (La.App. 2 Cir. 2006) (interpretation of contract terms when ambiguity)