ST. PIERRE ASSOCIATION
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-10275,
DIVISION "L-6" Honorable Kern A. Reese, Judge
John Litchfield Michael J. Marsiglia BERRIGAN LITCHFIELD, LLC
COUNSEL FOR PLAINTIFF/APPELLEE
Richard J. Richthofen, Jr. RICHTHOFEN & ASSOCIATES, LLC
COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew Woods.
Bartholomew Woods, Judge.
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.
BACKGROUND AND PROCEDURAL HISTORY
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. Appellant is the
owner of Unit 204 ("the unit") of the St. Pierre
Condominiums. On October 23, 2014,  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. In its petition, St. Pierre
stated that the condominium association had filed a claim of
privilege, 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.
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
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.
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. 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.
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.
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.
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 ...