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.

St. Pierre Association v. Smith

Court of Appeals of Louisiana, Fourth Circuit

December 6, 2017

ST. PIERRE ASSOCIATION
v.
JUDE SMITH

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-10275, DIVISION "L-6" Honorable Kern A. Reese, Judge

          E. John Litchfield Michael J. Marsiglia BERRIGAN LITCHFIELD, LLC COUNSEL FOR PLAINTIFF/APPELLEE

          Richard J. Richthofen, Jr. RICHTHOFEN & ASSOCIATES, LLC COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods.

          Regina Bartholomew Woods, Judge.

         Appellant, Jude Smith ("Appellant" or "Smith") appeals the trial court's November 18, 2016 judgment wherein the trial court granted summary judgment in favor of Appellee, St. Pierre Association ("Appellee" or "St. Pierre"). For the reasons that follow, we reverse the trial court and remand for further proceedings.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Appellee is a Louisiana condominium association affiliated with the St. Pierre Condominiums located at 1022 St. Peter Street in the French Quarter of New Orleans, Louisiana.[1] Appellant is the owner of Unit 204 ("the unit") of the St. Pierre Condominiums. On October 23, 2014, [2] Appellee filed a Petition for Preliminary and Permanent Injunction, and for Delinquent Condominium Fees against Appellant; St. Pierre prayed for $6, 260.19, which represented delinquent fees and late charges owed through October 16, 2014.[3] In its petition, St. Pierre stated that the condominium association had filed a claim of privilege[4], which was recorded at Instrument Number 2014-19796. According to St. Pierre, it filed the action against Appellant, because Smith, inter alia, was performing construction work on the unit without proper permits and in violation of the City of New Orleans' ordinances, as well as the condominium association's rules and regulations. St. Pierre further asserted that the construction work was potentially rendering the unit structurally unsafe and creating a hazard to other units.

         On April 23, 2015, the trial court conducted a hearing on the preliminary injunction. In its April 24, 2015 judgment granting the preliminary injunction in favor of St. Pierre, the trial court ordered Smith to "obey the statutes and ordinances of the City of New Orleans, the rules and regulations of the Vieux Carre' Commission, and the provisions of the Declaration of Condominium, bylaws and rules, and regulations of the St. Pierre Condominium Association, insofar as it applies to construction work performed by or on [Appellant's] behalf." The trial court further ordered Smith to complete specific construction tasks by no later than close of business on May 25, 2015. The trial court reserved other pending issues for further adjudication.

         Because Smith failed to comply with the aforesaid judgment, on June 4, 2015, St. Pierre filed a Rule for Contempt. The trial court held an evidentiary hearing on September 9, 2015. On September 10, 2015, the trial court rendered judgment in favor of Appellee, finding Appellant to be in contempt of its April 24, 2015 judgment. The trial court granted St. Pierre custody and control of the unit to conduct inspections and perform work to stabilize it.

         On October 13, 2015, St. Pierre filed an amended claim of privilege in the amount of $17, 360.58. On May 17, 2016, St. Pierre filed a Motion for Summary Judgment concerning delinquent condominium fees and assessments that Smith owed and, for the first time, sought $17, 360.58, as opposed to $6, 260.19, as alleged in its petition. Several months later, on July 20, 2016, St. Pierre filed another amended claim of privilege in the amount of $85, 407.23, which included architectural fees and construction costs.[5] Subsequently, on October 12, 2016, Appellee filed a supplemental memorandum in support of its motion for summary judgment and sought judgment in the amount of $85, 407.23.

         On November 18, 2016, the trial court granted the motion for summary judgment in favor of St. Pierre and against Smith in the amount of $85, 407.23. It is from this judgment that Smith now appeals.

         DISCUSSION

         Appellant raises as an assignment of error that the trial court erred in granting the motion for summary judgment in favor of St. Pierre. Specifically, Appellant argues that the trial court erred in granting summary judgment on three different bases: it erred in granting summary judgment in St. Pierre's favor in an amount higher than what St. Pierre pled in its petition; it erred in granting summary judgment when St. Pierre failed to properly preserve its claim of privilege; and it erred in granting summary judgment when Appellant was unable to conduct adequate discovery.

         Standard of Review

         In Alexander v. Hancock Bank, this Court articulated the standard for reviewing a trial court's decision regarding a motion for summary judgment, in light of the 2016 amendment to La. C.C.P. art. 966, as follows:

An appellate court conducts a de novo review, applying the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Brown v. Amar Oil Co., 2011-1631, p. 2 (La.App. 1 Cir. 11/8/12), 110 So.3d 1089, 1090 (citing Sanders v. Ashland Oil, Inc., 96-1751, p. 6 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035). A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Collins v. Randall, 2002-0209, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 352, 354. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. King v. Allen Court Apartments II, 2015-0858, p. 3 (La.App. 1 Cir. 12/23/15), 185 So.3d 835, 837, writ denied, 2016-0148 (La. 3/14/16), 189 So.3d 1069. This procedure is favored and shall be construed to accomplish these ends. Id.; see also La. C.C.P. art. 966 A(2).
The initial burden of proof rests on the moving party. La. C.C.P. art. 966 D(1). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather, to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. King, 2015-0858 at p. 3, 185 So.3d at 838. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. It is only after the motion has been made and properly ...

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.