SHAWN P. DOYLE AND THYME B. DOYLE, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILDREN, BRADYDOYLE, SHAWN MICHAEL DOYLE AND MAGGIE GRACE DOYLE
LONESOME DEVELOPMENT, LIMITED LIABILITY COMPANY, NAUTILUS INSURANCE COMPANY, NATCHEZ TRACE PROPERTY OWNERS ASSOCIATION, INC., WESTERN WORLD INSURANCE COMPANY AND RENAISSANCE PROPERTY MANAGEMENT, A DIVISION OF RENAISSANCE REALTY SERVICES, LLC
Appeal from the Twenty-Second Judicial District Court In and
for the Parish of St. Tammany State of Louisiana Trial Court
No. 2015-10976 The Honorable Scott C. Gardner, Judge
F. Toce Lafayette, Louisiana Attorney for Plaintiffs/
2nd Appellants, Shawn P. Doyle and Thyme B. Doyle,
Individually, and on behalf of their minor children, Brady
Doyle, Shawn Michael Doyle and Maggie Grace Doyle
Michael D. Peytavin William D. Dunn, Jr. John J. Danna, Jr.
Laura W. Christensen Gretna, Louisiana Attorneys for
Defendants/ 1st Appellants, Lonesome Development,
LLC, and Nautilus Insurance Company
R. Walker Covington, Louisiana Attorney for
Defendant/Appellant, Lonesome Development, LLC
Todd Musgrave Lisa A. McLachlan Amanda H. Aucoin New Orleans,
Louisiana Attorneys for Defendants/Appellees, Natchez Trace
Property Owners Association, Inc., Western World Insurance
Company, and Renaissance Property Management
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
Shawn P. Doyle and Thyme B. Doyle, individually, and on
behalf of their minor children, Brady Doyle, Shawn Michael
Doyle, and Maggie Grace Doyle, and Defendants/Appellants,
Lonesome Development, LLC and Nautilus Insurance Company,
appeal the trial court's judgment granting summary
judgment in favor of Appellee, Natchez Trace Property Owners
Association, Inc., and dismissing plaintiffs' claims
against Natchez Trace. For the reasons that follow, we
affirm, in part, and reverse, in part, the judgment of the
AND PROCEDURAL HISTORY
March 16, 2014, the minor children, Brady, Shawn Michael, and
Maggie Grace, were playing soccer directly behind their home
with other children in a common area of the Natchez Trace
subdivision located in Covington, Louisiana, when a rotten
tree fell on Brady Doyle causing him severe injuries.
Plaintiffs filed suit against Lonesome Development, LLC
(Lonesome), Natchez Trace Property Owners Association, Inc.
(Natchez Trace), Renaissance Property Management
(Renaissance), and their insurers. Plaintiffs alleged that both
Lonesome and Natchez Trace, the homeowners' association,
were responsible for maintaining and keeping in good repair
the common areas of the subdivision pursuant to a recorded
Dedication of Servitudes, Easements and Restrictive Covenants
(Restrictive Covenants). Plaintiffs also claimed that
Lonesome, Natchez Trace, and Renaissance had responsibility
for, custody of, and control and garde over the rotten tree
and knew or should have known that the rotten tree posed an
unreasonable risk of harm to those in the common areas.
originally owned and developed the Natchez Trace subdivision
in 2006. At the same time, Lonesome created Natchez Trace as
a non-profit corporation for the "development,
management, regulation, operation and maintenance" of
the common areas and other areas of the subdivision. Timothy
Henning and Don McMath, both managing members of Lonesome,
were the original directors of Natchez Trace. On February 17,
2012, Lonesome transferred the Natchez Trace subdivision to
Natchez Trace pursuant to the Restrictive Covenants, less
seventeen parcels of land. Mr. Henning signed the Act of
Transfer as the manager of Lonesome and as the authorized
agent of Natchez Trace. On September 29, 2012, Natchez Trace
entered into a Property Management Agreement with Renaissance
to manage the homeowners' association. Renaissance agreed
to be "responsible for the management, operation and
maintenance of properties owned, dedicated or reserved"
to Natchez Trace.
amended their petition claiming that because the quarterly
assessments they paid to Natchez Trace were used to pay
Renaissance for its maintenance obligation of the common
areas, plaintiffs were either direct beneficiaries or
third-party beneficiaries of the contract between Natchez
Trace and Renaissance. Plaintiffs also alleged that because
they were required to pay quarterly dues for the right to use
the common areas for recreational purposes, the common areas
are commercial recreational facilities.
and its insurer (collectively "Lonesome") filed a
motion for summary judgment on July 28, 2015, claiming that
it was entitled immunity pursuant to the Recreational Use
Immunity Statutes, La. R.S. 9:2791 and 9:2795. After a
hearing, the trial court signed a judgment denying the motion
for summary judgment on April 28, 2016. Lonesome filed a
second motion for summary judgment on October 31, 2016.
Natchez Trace and Renaissance also filed a motion for summary
judgment claiming virtually identical allegations, asserting
entitlement to immunity from plaintiffs' delictual claims
pursuant to the Recreational Use Immunity Statutes.
Plaintiffs opposed both motions for summary judgment in a
January 19, 2017, the trial court held a hearing and orally
denied the motions for summary judgment filed by Lonesome and
Renaissance. The trial court granted the motion for summary
judgment filed by Natchez Trace. On February 8, 2017, the
trial court signed a judgment denying Renaissance's
motion for summary judgment and granting summary judgment in
favor of Natchez Trace. On February 9, 2017, the trial court
signed a judgment denying Lonesome's motion for summary
judgment. Lonesome, its insurer, and plaintiffs filed
devolutive appeals from the granting of Natchez Trace's
motion for summary judgment. On November 30, 2017, this
court, recognizing a lack of decretal language in the
judgment, issued an interim order remanding the matter to the
trial court to consider whether the February 8, 2017 judgment
may be amended. On December 11, 2017, the trial court signed
an amended judgment, denying summary judgment as to Lonesome
and Renaissance, granting summary judgment as to Natchez
Trace, and dismissing all of plaintiffs' claims against
Natchez Trace. The December 11, 2017 amended judgment is
precise, definite, and certain, and does contain the
requisite decretal language. See Johnson v. Mount Pilgrim
Baptist Church, 2005-0337 (La.App. 1 Cir. 3/24/06), 934
So.2d 66, 67. Therefore, we maintain this appeal.
judgment procedure is favored and "is designed to secure
the just, speedy, and inexpensive determination of every
action .... and shall be construed to accomplish these
ends." La. C.C.P. art. 966(A)(2). In reviewing the
trial court's decision on a motion for summary judgment,
this court applies a de novo standard of review using the
same criteria applied by the trial courts to determine
whether summary judgment is appropriate. Smith v. Our
Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94),
639 So.2d 730, 750-51.
burden of proof is on the mover. If the mover will not bear
the burden of proof at trial, the mover's burden does not
require him to negate all essential elements of the adverse
party's claim, but only to point out to the court the
absence of factual support for one or more of the elements
necessary to the adverse party's claim. Thereafter, the
burden is on the adverse party to produce factual support
sufficient to establish the existence of a genuine issue of
material fact or that the mover is not entitled to judgment
as a matter of law. La. C.C.P. art. 966(D)(1).
an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as
to material fact and that the mover is entitled to judgment
as a matter of law." La. C.C.P. art. 966(A)(3).
A fact is material if it potentially ensures or precludes
recovery, affects a litigant's ultimate success, or
determines the outcome of the legal dispute. A genuine issue
of material fact is one as to which reasonable persons could
disagree; if reasonable persons could reach only one
conclusion, there is no need for trial on that issue and
summary judgment is appropriate.
Jackson v. City of New Orleans, 2012-2742 (La.
1/28/14), 144 So.3d 876, 882, cert, denied,
___U.S.___, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014).
deciding a summary judgment motion, it must first be
determined whether the supporting documents presented by the
mover are sufficient to resolve all material fact issues. If
not, summary judgment must be denied in favor of a trial on
the merits. A fact is material if its existence or
nonexistence is essential to the plaintiffs cause of action
under the applicable theory of recovery. Therefore, we must
conduct a de novo review of the evidence submitted with the
motion for summary judgment and determine if there are no
genuine issues of material fact.
of Recreational Use Immunity Statutes
trial court determined that Natchez Trace was entitled to
immunity under the Recreational Use Immunity Statutes.
Plaintiffs and Lonesome assert that the trial court erred in
finding that the Recreational Use Immunity Statutes applied
to Natchez Trace. Plaintiffs claim that the design,
placement, and maintenance of the common areas were for
commercial profit and benefitted Natchez Trace, thereby
excluding the application of the Recreational Use Immunity
Statutes. They further assert that because the right to use
the common areas was exclusively limited to homeowners who
paid quarterly dues, Natchez Trace is not entitled to
immunity. Lonesome argues that because the accident occurred
in a gated residential community, the Recreational Use
Immunity Statutes do not apply.
and operators of property that is used for recreational
purposes are entitled to immunity from tortious liability
pursuant to La. R.S. 9:2791 and 9:2795. These statutes relate
to the same subject matter and are to be read together.
Keelen v. State, Dept. of Culture, Recreation and
Tourism, 463 So.2d 1287, 1289 (La. 1985). Louisiana
Revised Statutes 9:2791 and 9:2795 were originally enacted as
Act 248 of 1964 and Act 615 of 1975. The legislature passed
these two remarkably similar statues designed to encourage
landowners to open their lands, on a basically nonprofit
basis for recreation. Richard v. Hall, 2003-1488
(La. 4/23/04), 874 So.2d 131, 147-48.
court analyzed these two statutes in Fournerat v. Farm
Bureau Ins. Co., 2011-1344 (La.App. 1 Cir. 9/21/12), 104
So.3d 76, 81, writ denied, 2012-2148 (La. 11/21/12),
102 So.3d 59, and determined that if there is a conflict
between the statutes, the later enacted one, La. R.S. 9:2795,
controls. This court also noted that the Recreational Use
Immunity Statutes are in derogation of common or natural
rights and, therefore, are to be strictly interpreted, and
must not be extended beyond their obvious meaning.
Fournerat, 104 So.3d at 81, citing Monteville v.
Terrebonne Parish Consol. Government, 567 So.2d 1097,
1100 (La. 1990). However, the enactment of La. R.S. 9:2795, a
second more expansive immunity statute, evidences an intent
on the Legislature's part that these statutes are to
grant a broad immunity from liability. Fournerat,
104 So.3d at 81, citing Richard, 874 So.2d at 151.
Revised Statute 9:2791 provides:
A. An owner, lessee, or occupant of premises owes no duty of
care to keep such premises safe for entry or use by others
for hunting, fishing, camping, hiking, sightseeing, or
boating or to give warning of any hazardous conditions, use
of, structure, or activities on such premises to persons
entering for such purposes, whether the hazardous condition
or instrumentality causing the harm is one normally
encountered in the true outdoors or one created by the
placement of structures or conduct of commercial activities
on the premises. If such an owner, lessee, or occupant gives
permission to another to enter the premises for such
recreational purposes he does not thereby extend any
assurance that the premises are safe for such purposes or
constitute the person to whom permission is granted one to
whom a duty of care is owed, or assume responsibility for or
incur liability for any injury to persons or property caused
by any act of person to whom permission is granted.
B. This Section does not exclude any liability which would
otherwise exist for deliberate and willful or malicious
injury to persons or property, nor does it create any
liability where such liability does not now exist.
Furthermore the provisions of this Section shall not
apply when the premises are used principally for a
commercial, recreational ...