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Levier v. Jeff Davis Bancshares, Inc.

Court of Appeals of Louisiana, Third Circuit

April 18, 2018

WILBERT JOSEPH LEVIER AND ROSE RICHARD LEVIER
v.
JEFF DAVIS BANCSHARES, INC.

          APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 16-C-3007-A HONORABLE JAMES P. DOHERTY, JR., DISTRICT JUDGE

          Steven J. Diebold Diebold Law Firm, LLC COUNSEL FOR PLAINTIFFS/APPELLANTS: Wilbert Joseph Levier Rose Richard Levier

          Stephen C. Polito Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P. COUNSEL FOR EFENDANT/APPELLEE: Jeff Davis Bancshares, Inc.

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.

          D. KENT SAVOIE JUDGE

         In this case concerning the amendment of building restrictions, the trial court granted a motion for summary judgment filed by Defendant Jeff Davis Bancshares, Inc. (JD Bank), affirming the amendment to the restrictions at issue. Plaintiffs, Wilbert Joseph Levier and Rose Richard Levier, now appeal. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On December 3, 1949, Edward Patterson Smiley transferred ownership of a lot in the Smiley Subdivision to Otis Burton Stander. In the act which transferred ownership, the building restrictions for the Smiley Subdivision were formed. In the 1949 Restrictions, Smiley established general and special restrictions for all lots in the Smiley Subdivision, including a prohibition on commercial use. The restrictions also allow for amendment, in whole or in part, by a "vote of the majority of the owners of the lots in the subdivision."

         Lots 13, 14, and 15 of Block F of the Smiley Subdivision are located on South Union Street. They are zoned by the City of Opelousas as a Neighborhood Mixed Use District. This type of zoning allows for commercial uses, including banks and financial institutions.

         On May 9, 2016, James Maddock McCarthy, M.D. and the Joan Sybil Leblanc McCarthy Credit Shelter Trust (sellers) executed a purchase agreement with JD Bank, wherein JD Bank agreed to buy Lots 13, 14 and 15 of Block F of the Smiley Subdivision from the sellers. JD Bank planned to build a new bank branch on the lots. Before the purchase could be finalized, however, JD Bank needed to confirm that the zoning and building restrictions affecting the property allowed for the construction of the branch building.

         JD Bank needed zoning approval for its signage and drive-through, which was obtained at an Opelousas City Council meeting on April 12, 2016. The last step in the process was to amend the 1949 Building Restrictions to allow for commercial use of the three lots in the Smiley Subdivision. To that end, Tina Vidrine, a JD Bank employee, went door to door to lot owners in the subdivision with a written document. She explained the proposed amendment, and the lot owners had a choice to either reject the amendment or sign the agreement as evidence of their approval. There are seventy-seven lots in Smiley Subdivision. The agreement and vote of the owners of 38.5 of the lots were required for an amendment of the restrictions to be valid. Vidrine ultimately acquired forty-one signatures. This document, with the signatures, was then duly acknowledged and filed in the St. Landry Parish Clerk of Court's Conveyance Records.

         JD Bank, having received zoning approval and amendment of the 1949 Restrictions, purchased the lots at issue. On July 13, 2016, the Leviers, lot owners in Smiley Subdivision, filed a Petition for Declaratory Judgment and For Injunction against JD Bank, alleging that the amendment to the 1949 Restrictions was not valid. JD Bank subsequently filed a motion for summary judgment arguing that the amendment constitutes a "vote" by the majority of the lot owners as required to amend the building restrictions. After a hearing on the motion, the trial court ruled in favor of JD Bank, finding:

[T]hat the Amendment to Restrictions recorded on April 1, 2016, in the St. Landry Parish Clerk of Court's Conveyance Records, bearing Act. No. 1139450, constituted a vote as required by the Smiley Subdvision [sic] Building Restrictions created by the Mortgage Sale from Edward Patterson Smiley to Otis Burton Stander executed on December 3, 1949, and recorded in St. Landry Parish Clerk of Court's Conveyance Records, Book F-9, Page 43, Act No. 276728, and that, because a vote occurred with a majority of the owners of the lots voting in favor of the said amendment, the Amendment to Restrictions recorded on April 1, 2016, in St. Landry Parish Clerk of Court Conveyance Records, bearing ...

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