Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lakewood Property Owners' Association v. Smith

Court of Appeals of Louisiana, Fourth Circuit

November 22, 2017

LAKEWOOD PROPERTY OWNERS' ASSOCIATION AND MARK HARRIS SAMUELS
v.
KYLE SMITH AND CHRISTINE SMITH

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-13837, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge

          Jennifer L. Thornton STANLEY, REUTER, ROSS, THORNTON & ALFORD, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLEES

          Henry W. Kinney, III, Michael L. DeShazo, Aaron N. Maples, KINNEY, ELLINGHAUSEN, RICHARD & DESHAZO, COUNSEL FOR DEFENDANTS/APPELLANTS

          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore

          Roland L. Belsome Judge.

         The Appellants, Kyle and Christine Smith, seek review of the trial court's judgment granting injunctive relief in favor of the Appellees, the Lakewood Property Owners' Association (LPOA) and Mark Samuels. In particular, the trial court ordered the removal of their carport after finding that Appellant's proposed remodel did not comply with the Building Restrictions of the Lakewood Property Owners' Association (LPOA). For the reasons set forth below, we affirm.

         FACTS AND PROCEDURAL HISTORY

         This case comes before us after extensive litigation and for the second time on appeal. The record from the first appeal reveals that the Appellants' submitted their plans to build their carport to the LPOA Architectural Review Committee (ARC), [1] who rejected the plans for failure to comply with the LPOA building restrictions. Specifically, the Building Restrictions required a five-foot setback from side interior yard lines.[2] Later, Appellant, Christine Smith, sent a letter to the chair of the ARC indicating the Appellants' intentions to move forward with constructing the carport despite the ARC's denial. The ARC chair responded, stating they would take appropriate action if the Appellants' structure did not comply with the Building Restrictions. While aware of the potential consequences of their choice, the Appellants went forward with construction of the carport without the approval of the ARC.[3] The Appellants began construction, placing the structure only two-and-one-half feet from the property line. After a trial, the court granted injunctive relief in favor of the Appellees and ordered the removal of the illegally constructed carport.

         In the first appeal, this Court affirmed the trial court's judgment. However, the matter was remanded for a determination as to whether the carport could be made compliant with the LPOA's Building Restrictions for Lakewood South, Section Two, Restriction Four, without being completely demolished.[4] Following a trial on remand, the court again ordered the removal of the carport, specifically finding that the Appellant's proposed remodel did not comply with the Building Restrictions. Therefore, it held that the only remedy was to demolish the carport. This timely suspensive appeal followed.

         STANDARD OF REVIEW

         When reviewing questions of fact as determined by the factfinder, be it a jury or a judge, appellate courts utilize the manifest error or clearly wrong standard of review. Sassone v. Doe, 11-1821, pp. 2-3 (La.App. 4 Cir. 5/23/12), 96 So.3d 1243, 1245. "[A]n appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong." Sassone, 11-1821, p. 3, 96 So.3d at 1245. In order to reverse findings of the factfinder, "an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong." S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La. 7/6/10), 41 So.3d 1119, 1127. The Louisiana Supreme Court explained this Court's role as follows:

[u]ltimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. Accordingly, where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Id. at 883.

S.J., 09-2195, pp. 12-13, 41 So.3d at 1127.

         The manifest error standard of review is also used for reviewing "mixed questions of law and fact." Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 5 (La.App. 4 Cir. 4/10/13), 116 So.3d 720, 724 (citation omitted). Conversely, appellate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.