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Three Rivers Commons Condominium Association v. Grodner

Court of Appeals of Louisiana, First Circuit

May 10, 2017

THREE RIVERS COMMONS CONDOMINIUM ASSOCIATION
v.
DONNA GRODNER, ET AL.

         On Appeal from the 21st Judicial District Court, Parish of Livingston, State of Louisiana Trial Court No. 144487 The Honorable Brenda Bedsole Ricks, Judge Presiding

          Donna Grodner Baton Rouge, Louisiana Attorney for Defendants/ Appellants, Donna Grodner, James Hornsby, Troy and Cindy Phillips, Mark and Robin Angeron, Janet Folse, and Kelly Burkenstock.

          Barbara Irwin Timothy Pujol Gonzales, Louisiana Attorneys for Plaintiff/ Appellee, Three Rivers Commons Owner's Association, Inc.

          BEFORE: McCLENDON, WELCH, CRAIN, HOLDRIDGE, AND CALLOWAY, [1] JJ.

          PER CURIAM

         This is an appeal of a judgment denying an exception of no right of action, issuing a permanent injunction prohibiting the opening of a gate on Three Rivers Island in Livingston Parish, and denying a request for a mandatory injunction ordering the opening of the gate. We reverse the judgment relative to the issuance of the permanent injunction prohibiting opening the gate. In all other respects, the judgment is affirmed.

         FACTS

         Three Rivers Island is an island located on the south side of the Diversion Canal in Livingston Parish. It is accessible by boat, and vehicular traffic is restricted to golf carts. The condominium regime, Three Rivers Commons, was developed on the western end of the island. East of the condominium development are subdivisions developed in separate filings.

         A "foot bridge" over the Petite Amite River, wide enough to accommodate a golf cart, connects the westerly end of the island to a parking lot located in Ascension Parish. Upon crossing the foot bridge from the parking lot to the island, one encounters intersecting concrete pathways. One pathway extends straight ahead from the base of the foot bridge and across the common space for the condominium development. The other pathway curves in a southerly direction, reconnecting with the straight pathway on the easterly end of the condominium development. Gates are located on either end of the straight pathway at the intersections with the curved pathway.[2] This dispute arose after the gate on the easterly end of the straight pathway was welded shut, effectively preventing anyone from accessing the lots and residences to the east of the condominium development using the straight pathway.[3]

         The Board of the incorporated owner's association for Three Rivers Commons filed this suit, complaining that Donna Grodner, who owns property to the east of the condominium development, entered the condominium development property and attempted to open the welded gate to allow golf cart traffic. The Board sought an injunction to prohibit further attempts at opening the gate.

         In response, Grodner and other island property owners (collectively "the TRI owners") claimed the welded gate blocked a servitude affording them a right of passage over the straight pathway to their properties. The TRI owners requested a mandatory injunction requiring the Board to open the gate and to cease and desist from obstructing access to the servitude of passage.

         At the start of the bench trial for the injunctive relief, the TRI owners orally urged an exception of no right of action, arguing the Board owned none of the property at issue and therefore had no standing to sue.[4] Testimony was then presented and evidence was introduced, including numerous plats showing the developments on the island. Thereafter, the trial court issued written reasons adopting the Board's arguments on all issues and rejecting the TRI owners' argument that the gate obstructs a servitude of passage that provides them access to their properties using the straight pathway. A judgment was signed denying the exception of no right of action and enjoining Grodner and those acting on her behalf from opening the westerly gate. The judgment also denied the relief requested by the TRI owners, specifically the mandatory injunction requiring the opening of the gate. The TRI owners now appeal.

         RIGHT OF ACTION

         The TRI owners first challenge the trial court's denial of their exception of no right of action. While an exception is a pleading that must be made in writing, making the oral urging of the exception improper, either the trial or appellate court may, on its own motion, notice that a plaintiff does not have a right of action. See La. Code Civ. Pro. arts. 852 and 927. Consequently, the trial court did not abuse its discretion in addressing the exception, and that ruling is properly before this court for review. See Murrill v. Edwards, 613 So.2d 185, 189 (La.App. 1 Cir. 1992), writ denied, 614 So.2d 65 (La. 1993); see also Perkins v. Carter, 09-673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862, 865; FIA Card Services, N.A. v. Gibson, 43, 131 (La.App. 2 Cir. 3/19/08), 978 So.2d 1230, 1235.

         The TRI owners contend the Board has no right of action in this matter because it is not an owner of any property at issue. An action can only be brought by a person having a real and actual interest that he asserts. La. Code Civ. Pro. art. 681. The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. JP Morgan Chase Bank, N.A. v. Boohaker, 14-0594 (La.App. 1 Cir. 11/20/14), 168 So.3d 421, 426. The exception assumes the petition states a valid cause of action for some person and tests whether the plaintiff has an interest in judicially enforcing the right asserted. The question is simply whether the plaintiff has a right to sue the defendant. Id.

         The party raising the exception of no right of action bears the burden of proof. Evidence supporting or controverting an exception of no right of action is admissible; however, in the absence of evidence to the contrary, the averments of fact in the pleadings will be taken as true. Whether a ...


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