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.

Doyle v. Lonesome Development, Ltd. Liability Co.

Court of Appeals of Louisiana, First Circuit

July 18, 2018

SHAWN P. DOYLE AND THYME B. DOYLE, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILDREN, BRADYDOYLE, SHAWN MICHAEL DOYLE AND MAGGIE GRACE DOYLE
v.
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

          On 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 Presiding

          Andre 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

          John R. Walker Covington, Louisiana Attorney for Defendant/Appellant, Lonesome Development, LLC

          R. 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.

          PENZATO, J.

         Plaintiffs/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, 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 trial court.

         FACTS AND PROCEDURAL HISTORY

         On 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.[1] 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.

         Lonesome 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.

         Plaintiffs 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.

         Lonesome 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 single opposition.

         On 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.

         SUMMARY JUDGMENT

         Summary 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).[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.

         The 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).

         "After 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).

         In 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.

         LAW AND DISCUSSION

         Applicability of Recreational Use Immunity Statutes

         The 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.

         Owners 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.

         This 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.

         Louisiana 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 ...

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.