Appeal from the 21st Judicial District Court, Parish of
Livingston, State of Louisiana Trial Court No. 144487 The
Honorable Brenda Bedsole Ricks, Judge Presiding
Grodner Baton Rouge, Louisiana Attorney for Defendants/
Appellants, Donna Grodner, James Hornsby, Troy and Cindy
Phillips, Mark and Robin Angeron, Janet Folse, and Kelly
Barbara Irwin Timothy Pujol Gonzales, Louisiana Attorneys for
Plaintiff/ Appellee, Three Rivers Commons Owner's
BEFORE: McCLENDON, WELCH, CRAIN, HOLDRIDGE, AND CALLOWAY,
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.
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.
"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. 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
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.
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.
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. 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.
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
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.
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