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
W. Kinney, III, Michael L. DeShazo, Aaron N. Maples, KINNEY,
ELLINGHAUSEN, RICHARD & DESHAZO, COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Marion F. Edwards, Pro Tempore
L. Belsome Judge.
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
AND PROCEDURAL HISTORY
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),  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. 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. 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.
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. 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.
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
[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.
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,