Kenneth Troncoso and Gail Troncoso v. Point Carr Estates Subdivision Homeowners' AssociationKenneth Troncoso and Gail Troncoso v. Point Carr Estates Subdivision Homeowners' Association
Judgment Rendered: JAN 10 2023
Wayne A. Collier Slidell, Louisiana Counsel for Plaintiffs/Appellants Kenneth Troncoso and Gail Troncoso
Clint L. Pierson, Jr. Covington, Louisiana and Patricia R. Fox Covington, Louisiana Counsel for Defendants/Appellees Point Carr Estates Subdivision Homeowners Association, Patricia Childress, Michael Bearden, Richard Capdeboscq, Jr., Lesley Capdeboscq, and William Edgett
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
Hester J., concurs
THERIOT,
This appeal arises from a trial court judgment denying plaintiffs’ motion for partial summary judgment, granting defendants’ motion for summary judgment, and dismissing plaintiffs’ suit. For the reasons that follow, we reverse the portion of the trial court judgment that granted summary judgment in favor of the defendants and dismissed the plaintiffs’ suit.
FACTS AND PROCEDURAL HISTORY
On March 15, 2002, Kenneth and Gail Troncoso purchased one of ten individual numbered lots in Point Carr Estates Subdivision from the developer, Waterfront Developers, LLC, for $175,000.00. The property purchased by the Troncosos is identified as “Lot 9.”
In January 2008, Richard Capdeboscq, Jr., owner of Lots 2 and 4, filed Articles of
The Board of Directors of the HOA adopted By-Laws on September 24, 2008, which purported to apply to “[a]ll present or future owners, lessees, invites, tenants, or occupants of the Point Carr Estates Subdivision property as more fully set out in the Restrictive Covenants of the Point Carr Estates Subdivision . . . or any other individual who may use the facilities or come upon the Point Carr Estates Subdivision property in any manner.” Also on September 24, 2008, seven individual lot owners in Point Carr Estates Subdivision appeared before a notary and witnesses and executed a document entitled “Dedication of Servitudes, Easements, and Restrictive Covenants of Point Carr Estates” (“Restrictive Covenants“).1
The property declared to be subject to the Restrictive Covenants (the “Property“) was defined in the document as:
ALL THAT CERTAIN PARCEL OF LAND in Section 25 and 26, Township 9 South, Range 13 East, St. Tammany Parish, Louisiana, more fully described as follows:
Commencing at the Northwest corner of Lot 5 Northshore Beach Subdivision at the westerly right of way line of Carr Drive being the POINT OF BEGINNING,
go South 60 degrees 32 minutes 27 seconds West - 239.60 feet to a point;
thence go North 30 degrees 16 minutes 37 seconds West - 547.76 feet to a point;
thence go North 47 degrees 53 minutes 13 seconds East - 132.27 feet to a point;
thence go North 79 degrees 16 minutes 47 seconds East - 219.06 feet to a point;
thence go North 30 degrees 05 minutes 39 seconds East - 506.36 feet to a point;
thence go South 60 degrees 32 minutes 47 seconds West - 94.69 feet to the POINT OF BEGINNING. Containing in all 4.23 acres of land.
The Property, as defined in the Restrictive Covenants, included all ten lots in the Point Carr Estates Subdivision, including Lot 9. The Restrictive Covenants declared that the Property “shall be held, conveyed, hypothecated and encumbered, sold, used, occupied, and improved subject to the servitudes, privileges, and restrictions hereinafter set forth.” They further provided that those servitudes, privileges, and restrictions “shall be deemed to run with the land and shall be binding upon the [HOA], the [HOA‘s] successors, assigns and liquidators,
On December 31, 2010, the Troncosos executed a “Louisiana Residential Agreement to Buy or Sell” to sell Lot 9 to Richard and Yvette Warren for $130,000.00 (the “Warren purchase agreement“). Although the Warren purchase agreement initially included a predication clause that conditioned the sale on HOA approval of the Warrens’ plans to build a 1,900 square foot house on Lot 9, this predication clause was removed by an amendment to the agreement dated January 4, 2011. The Warren purchase agreement provided that the act of sale would be executed on or before February 9, 2011, subject to a ten-day extension in the event curative title work was necessary. The Warrens did not appear at the scheduled act of sale. The Troncosos allege that one of the reasons they were given for the Warrens’ refusal to complete the purchase of Lot 9 was the potential effect of the By-Laws and Restrictive Covenants recorded against the property.
On March 9, 2011, counsel for the Troncosos sent an amicable demand letter to the HOA and individual defendants regarding the “Disturbance in Possession” created by the recording of the By-Laws and Restrictive Covenants against Lot 9. The letter stated that the Troncosos “demand that their property be released,” and further stated that “[t]itle insurers have agreed that the attached Partial Release executed and notarized by all of the individuals who signed and the [HOA] will clear title.” The letter requested that the recipients deliver the executed release to counsel for the Troncosos by March 17, 2011, and stated that if the Partial Release was not executed or if the Troncosos did not “receive a clear title policy,” suit would be filed and a preliminary injunction set for hearing.
A “Partial Release of Dedications of Servitudes, Easements and Restrictive Covenants by Point Carr Estates Subdivision Homeowners Association and By-Laws” (“Partial Release“) was executed before a notary and witnesses on March 15, 2011 by Richard Capdeboscq, Jr., individually and as authorized agent for the HOA; Lesley Capdeboscq; Childress; and Tedesco. The Partial Release states that “[HOA] and Individuals caused Instrument # 1700255 bearing Registry # 1864037 [By-laws] and # 1700257 bearing Registry # 1864040 [Restrictive Covenants] to be recorded in the public records for St. Tammany Parish on September 26, 2008,” and “[HOA] and Individuals wish to release a portion of the Property,” specifically Lot 9. Three of the individual defendants who signed the Restrictive Covenants did not sign the Partial Release: McElveen, Edgett, and Bearden. The Partial Release was recorded on June 8, 2011, with the missing signatures noted, as Instrument # 1814019 bearing Registry # 2069759.
Also on June 8, 2011 (the same date the Troncosos filed the Warren suit), the Troncosos filed the instant suit (“HOA suit“) in the Twenty-Second Judicial District Court. The HOA suit, which was assigned to Division D, was styled as a possessory action and suit for preliminary injunction against the HOA and the individual defendants who signed the Restrictive Covenants, i.e., Richard Capdeboscq, Jr., Matthew McElveen, Patricia F. Childress, William Edgett, Michael C. Bearden, Daryl Tedesco, and Lesley Capdeboscq.2 In the HOA suit, the Troncosos alleged that the HOA and individual defendants caused a disturbance in law of their possession of Lot 9 by executing and filing the Restrictive Covenants and By-Laws for recordation, and further alleged that the recordation of these instruments against Lot 9 caused them to lose the $130,000.00 cash sale to the Warrens. In addition to a judgment of possession and damages for the disturbance of their possession, the Troncosos sought an injunction to remove the Restrictive Covenants and By-Laws from the public records against Lot 9.
The parties to the HOA suit entered into a consent judgment on September 20, 2011, pursuant to which the Troncosos’ request for a preliminary and permanent injunction was granted, the defendants were enjoined from asserting any petitory claims encumbering Lot 9, and the inscriptions bearing Instrument # 1700257 (Restrictive Covenants) and # 1700255 (By-Laws) against Lot 9 were forever cancelled. The defendants reserved all defenses and did not admit any liability to the Troncosos.
On December 30, 2013, the Troncosos’ claims against the Warrens in the Warren suit were dismissed on summary judgment. In written reasons for judgment, the trial court found that the Warrens had pointed out an absence of factual support for an essential element of the Troncosos’ claim for breach of the purchase agreement, i.e., that the Troncosos would be able to tender merchantable title within the time period set forth in the purchase agreement. The trial court found that the Warrens carried their burden on the motion through the expert opinion of Julian J. Rodrigue, Jr., a real estate attorney and licensed title insurance agent, that the Troncosos did not have merchantable title to Lot 9 on the date specified for closing in the Warren purchase agreement, nor did they have merchantable title at the termination of the ten-day curative period. Finding that the Troncosos failed to present evidence in opposition to the motion to show that they would be able to satisfy their burden of proving that they were able to tender merchantable title on the prescribed dates, the trial court granted the Warrens’ motion for summary judgment and dismissed the Troncosos’ claims against the Warrens.
The Troncosos amended their petition in the HOA suit on June 24, 2014 to specifically allege that the Warrens “refused to proceed to sale because the recorded instruments
The Troncosos amended their petition again on September 8, 2015, reasserting the allegations of their prior amended petition and adding additional allegations, including allegations of fraud and misrepresentation. The Troncosos alleged that the Restrictive Covenants constitute fraud and misrepresentation in that they purport to apply to all lot owners and all lots in Point Carr Estates Subdivision, including the lot owners who did not sign the Restrictive Covenants and the lots owned by those non-signors. The Troncosos further alleged that the defendants knew or should have known that the Restrictive Covenants were by their terms going to be recorded against Lot 9. The Troncosos also alleged that some or all of the defendants were aware that the Troncosos had a potential buyer for Lot 9,4 who planned to construct a home that was smaller in size than the defendants would prefer, and that those defendants prepared and filed the Restrictive Covenants and By-Laws for the purpose of interfering with that sale. The Troncosos further alleged that the HOA and individual defendants were given an opportunity to avoid litigation by assuring the potential buyer that their home would be approved if they proceeded to sale, but the HOA and individual defendants instead stated that the restrictions would be enforced and the home would not be approved. The Troncosos alleged that as a result of the actions of the HOA and the individual defendants, they suffered actual monetary damages, as well as consequential damages, and were required to file litigation, incurring costs and attorney fees.
Defendants McElveen and Tedesco filed a motion for summary judgment on June 4, 2019, urging that the Troncosos lacked factual support for their assertions that the recording of the Restrictive Covenants caused the loss of the sale to the Warrens or that they suffered any damages at all as a result of the recording of the Restrictive Covenants. They also urged that the Troncosos’ claims in the HOA suit should be barred by the doctrine of judicial estoppel because the Troncosos presented a contradictory argument in the Warren suit, which has been litigated to its conclusion. Specifically, McElveen and Tedesco argued that the Troncosos should be bound by their assertion in the Warren suit that the Restrictive Covenants were not binding on Lot 9. In support of their motion, McElveen and Tedesco filed a number of exhibits,5 including: an excerpt
Judgment in the HOA suit; McElveen‘s affidavit, attesting that he only signed the Restrictive Covenants as an individual for the purpose of encumbering his own property and denying any responsibility for the drafting of the document or obtaining other lot owners’ signatures on the document; the Warrens’ motion for partial summary judgment in the Warren suit, along with their statement of
The Troncosos opposed McElveen and Tedesco‘s motion for summary judgment and filed the following exhibits9 with their opposition: the Restrictive Covenants; the HOA By-Laws; the Consent Judgment in the HOA suit; the March
9, 2011 amicable demand letter; excerpts from Yvette and Richard Warren‘s deposition testimony about their desire to purchase a lot that was not subject to restrictive covenants and the role of the Restrictive Covenants in their decision not to purchase Lot 9; and excerpts from McElveen‘s deposition, in which he stated that he did not recall being told what was going to be done with the Restrictive Covenants after he signed them, although he “understood that it required some legal filing.”
After a hearing, McElveen and Tedesco‘s motion for summary judgment was granted, dismissing the Troncosos’ claims against them.10 The Troncosos initially filed a motion for devolutive appeal of the September 25, 2019 judgment dismissing their claims against McElveen and Tedesco, but that appeal was later dismissed as abandoned.
On August 16, 2021, the trial court11 continued and reset the trial on the merits for November 23 and 24, 2021, and ordered the parties to file any motions and exceptions in sufficient time to be heard on November 4, 2021.
On September 17, 2021, the HOA and the remaining individual defendants filed a motion for summary judgment, which was
court‘s reasons for judgment in that matter, including findings of fact, were the law of the case. The defendants filed the affidavits of the remaining individual defendants in support of their motion for summary judgment. The affidavits of Edgett, Bearden, Richard and Lesley Capdeboscq, and Childress each stated that he/she executed the Restrictive Covenants individually, for the sole purpose of encumbering his/her own property, and denied any personal responsibility for the drafting or recording of the Restrictive Covenants.
The Troncosos opposed the defendants’ motion. In their opposition, the Troncosos objected to the defendants’ adoption of McElveen and Tedesco‘s motion for summary judgment and memorandum, arguing that there is no procedure found in the Louisiana Code of Civil Procedure to satisfy the requirements of
The Troncosos also filed a motion for partial summary judgment on September 20, 2021, which was set for hearing along with the defendants’ motion on November 4, 2021. The Troncosos’ motion sought summary judgment solely on the issue that the Restrictive Covenants constituted an unlawful encumbrance on Lot 9. In support of their motion for partial summary judgment, the Troncosos filed the Restrictive Covenants; the HOA By-Laws; a copy of a Geoportal Map dated September 14, 2021, showing Point Carr
In opposition to the Troncosos’ motion for partial summary judgment, the defendants argued that Judge Garcia‘s written reasons for judgment issued in connection with McElveen and Tedesco‘s motion for summary judgment contained findings of fact that are binding on the court as the law of the case and that preclude summary judgment in favor of the Troncosos. The defendants did not file any supporting documents in opposition to the Troncosos’ motion for partial summary judgment.15
The hearing on both motions for summary judgment was held on November 4, 2021. Although the Troncosos had raised objections pursuant to
On appeal, the Troncosos argued that the trial court erred in considering the defendants’ motion for summary judgment in spite of their objections to the defendants’ failure to comply with the procedural requirements for motions for summary judgment; in finding that the invalid restrictions did not affect the title to Lot 9; in finding that no liability existed on the part of the individual defendants; and in finding that the Troncosos offered no proof of damages in opposition to the defendants’ motion for summary judgment.
DISCUSSION
Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends.
Appellate courts review summary judgments de novo, using the same criteria that govern the trial court‘s consideration of whether summary judgment is appropriate. In re Succession of Beard, 2013-1717, p. 10 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.
In ruling on a motion for summary judgment, the court‘s role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. See Hines v. Garrett, 2004-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is one as to which reasonable persons could disagree. However, if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 2004-0806 at p. 1, 876 So.2d at 765-66. A fact is “material” when its existence or nonexistence is essential to the plaintiff‘s cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. Any doubt as to a dispute regarding an issue of material fact must be resolved against granting the motion and in favor of a trial on the merits. Id.
The burden of proof on a motion for summary judgment rests with the mover.
The mover on a motion for summary judgment can meet its burden of proof on the motion by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment.
As noted above, the HOA and remaining individual defendants only filed the affidavits of Edgett, Bearden, Richard and Lesley Capdeboscq, and Childress with their motion for summary judgment. Although they attempted, by a statement in their memorandum in support of their motion, to adopt in extenso the motion, memorandum, and exhibits filed in this matter in 2019 by McElveen and Tedesco, these materials elsewhere in the record cannot be considered on summary judgment. See James, 2019-0787 at pp. 7-8, 2020WL3446635 at *3-4 (where plaintiffs filed no documents or evidence in support of their motion for summary judgment on their cross-claim, but only a “Statement of Undisputed Facts” referencing documents filed in the record as exhibits on their motion for summary judgment on the main demand, the plaintiffs failed to carry their burden on the motion because only documents filed in support of or in opposition to the motion may be considered); see also Horrell, 2019-0945 at pp. 8-10, 309 So.3d at 759-761 (request in movers’ memorandum that the court take judicial notice of court decisions in prior litigation between the parties did not satisfy the requirements of
In their memorandum in support of their motion for summary judgment, the defendants raised three grounds for the court to grant summary judgment. They argued that the Troncosos would be unable to prove that the recording of the Restrictive Covenants was the cause of their inability to sell their home; that the Troncosos would be unable to prove any damages resulting from the recording of the Restrictive Covenants; and that the Troncosos’ claims are barred by judicial estoppel as a result of a contradictory argument in the Warren suit. The supporting documents filed with the defendants’ motion (the affidavits of the remaining individual defendants) only contained attestations that the remaining individual defendants executed the Restrictive Covenants individually, for the sole purpose of encumbering his/her own property, and denied any personal responsibility for the drafting or
The trial court‘s oral and written reasons for judgment reveal that it also granted summary judgment in favor of the individual defendants on the issue of liability; however, that issue was not raised in the defendants’ motion for summary judgment.18 As previously noted, a summary judgment may only be rendered or affirmed as to those issues set forth in the motion under consideration by the court at that time.
to the court in response to a motion for summary judgment is contrary to the stated purpose of the summary judgment procedure, i.e., to secure the just, speedy, and inexpensive determination of every action. See
The trial court judgment on appeal also denies the Troncosos’ motion for partial summary judgment. The denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law. However, where there are cross-motions for summary judgment raising the same issues, this court can review the denial of a summary judgment in addressing the appeal of the granting of the cross-motion for summary judgment. Waterworks District No. 1 of Desoto Parish v. Louisiana Department of Public Safety & Corrections, 2016-0744, p. 3, n. 1 (La. App. 1 Cir. 2/17/17), 214 So.3d 1, 3, n. 1, writ denied, 2017-0470 (La. 5/12/17), 219 So.3d 1103. Nevertheless, in their motion for appeal, the Troncosos specifically requested and were granted an appeal of the portion of the judgment granting the defendants’ motion for summary judgment. Their motion for appeal further stated that the portion of the judgment denying their
own motion for partial summary judgment “is interlocutory and not subject of direct appeal.” Given the fact that the Troncosos did not request an appeal the denial of their motion or assign error to the denial, as well as the fact that the two motions before the court in this matter were not necessarily cross-motions for summary judgment raising the same issues, we decline to review the denial of the Troncosos’ motion for partial summary judgment.
Given our disposition of this matter, we pretermit discussion of the Troncosos’ remaining assignments of error. Our ruling in this matter does not prevent either party from filing another motion for summary judgment, with appropriate documentary support. See Forstall, 2017-0414 at p. 11, n. 12, 238 So.3d at 473, n. 12.
CONCLUSION
The August 29, 2022 judgment of the trial court is reversed insofar as it grants the defendants’ motion for summary judgment and dismisses the plaintiffs’ case. Costs of this appeal are assessed to defendants, Point Carr Estates Subdivision Homeowners Association, Richard Capdeboscq, Jr., Lesley Capdeboscq, Patricia Childress, William Edgett, and Michael Bearden.
REVERSED.