95-1568 La.App. 3 Cir. 4/3/96, Travasos v. Stoma

• Decision Date: 03 April 1996
• Citation: 672 So.2d 1070
• Parties: 95-1568 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1070

672 So.2d 1070

95-1568 La.App. 3 Cir. 4/3/96

Harold TRAVASOS and Theresa Russo, Plaintiffs-Appellants, v. Philip STOMA, Sr. and Mary Elizabeth Leblanc Stoma,

Defendants-Appellees.

No. 95-1568.

Court of Appeal of Louisiana, Third Circuit.

April 3, 1996.

Rehearing Denied May 22, 1996.

On appeal from the Fifteenth Judicial District Court for the Parish of Lafayette, State of Louisiana, the Honorable Durwood Conque, Judge, Presiding.

Paul Joseph Hebert, Lafayette, for Harold Travasos et al.

Jason Wayne Robideaux, Lafayette, for Philip Stoma Sr. et ux.

Before DOUCET, C.J., and SULLIVAN and GREMILLION, JJ.

[95-1568 La.App. 3 Cir. 1] DOUCET, Chief Judge.

This case arises out of an alleged violation of subdivision restrictions in the construction of a metal building on lot 13 of Fountainhead Center Subdivision, in Lafayette, Louisiana. ¹

Fountainhead Center Subdivision was dedicated in May 1980. The dedication included the following building restrictions, which are at issue in this case:

6. Exteriors on all buildings shall be constructed of Brick, Stucco, Stone or Aggregate Precast Panels or Wood, allowing only ten (10%) percent for other Decorative Materials as trim only.

7. All roofs shall be constructed of Built-up Aggregate Roof, Slate, Clay Tile, Asbestos, Asphalt, Fiberglass or Copper; [95-1568 La.App. 3 Cir. 2] it is therefore prohibited to use Corrugated Metal or Metal Roof need (sic) recoating.

* * * * * *

20. If owners hereto, or their heirs or assigns, shall violate or attempt to violate any of the covenants or restrictions herein, it shall be lawful for any other person or persons owning other lots in this subdivision, or any portion thereof, to prosecute any proceeding at law or in equity against the person or persons so violating or attempting to violate and to prevent him or her from so doing by appropriate proceedings, including injunctive process, or to recover damages or other dues for such violation, providing, however, that violation of said restriction shall in no event cause any reversion of titles to the said property.

* * * * * *

22. Each lot owner shall cause a sidewalk to be constructed as hereinafter described upon the completion of any improvements placed on any lot, or within two (2) years of the purchase date of said lot from C.D.T. Agency Corporation, whichever occurs first,....

The trial judge correctly outlined the underlying facts and the trial testimony in this case in his "Reasons for Ruling:"

The plaintiffs, Harold and Theresa Travasos, purchased Lot 15 of the Fountainhead Center Subdivision in December of 1983 as an investment. There has been no construction on this property, and no commercial use has been made of it to date. Only four or five businesses have located in the subdivision since its dedication in 1980.

One of them is defendant's furniture store. In February of 1984, Philip and Mary Elizabeth Stoma purchased Lot 14B of Fountainhead Center adjacent to the plaintiffs' lot and constructed a building of cinder block, masonry, and flake board with a metal roof. They have operated their retail furniture business from this building ever since. The site includes a parking lot and signs near the roadway to mark the location of the store.

In April of 1993, the Stomas acquired Lot 13 of Fountainhead Center immediately behind the furniture store, and erected a metal building for use in their business as a warehouse for furniture. The construction of the metal building precipitated a complaint from the plaintiff, Harold Travasos, to the developer, Cecil Trahan, who in turn wrote a letter to the defendant, Philip [95-1568 La.App. 3 Cir. 3] Stoma, Sr. informing him of the restriction against the use of metal construction in the subdivision. It was stipulated at trial that this building is, indeed, in violation of the subdivision restrictions contained in the act of dedication, assuming that those restrictions are still viable and have not been abandoned.

Philip Stoma, Sr. maintains that he was unaware of any subdivision restrictions affecting his property until he received notice of the violation from the developer concerning his new metal building. He acknowledges that his deed contains language reflecting the existence of the subdivision restrictions....

The defendant, Philip Stoma, Sr., testified further in his trial testimony that any restrictions that once existed in the subdivision development have been abandoned as a result of numerous violations, which have been allowed to exist through the years without any repercussion. Enforcement of the subdivision restrictions is apparently entrusted to an architectural control committee chaired by the developer, Cecil Trahan. It is the defendant's testimony that he has never been required to seek or obtain the approval of the committee regarding any condition on his property, nor has he ever before received notice of any violation from the committee or the developer despite numerous violations on his property as well as on the property of others in the subdivision.

Examples cited by the defendant include the metal roof on his original furniture store built in 1986 in apparent violation of Restriction No. 7; two separate commercial signs he has erected at the front of his property, one in 1986 and a replacement in late 1993, both in apparent violation of Restriction No. 12; the location of garbage bins at various locations in the subdivision over the past several years in plain view and seemingly in violation of Restriction 17; the absence of a sidewalk at the Stoma Furniture Store location in violation of Restriction No. 22-D; canopies attached to the Stoma Furniture Store building in violation of Restriction No. 18; and violations of Restrictions Nos. 9 and 10 regarding landscape and maintenance.

Stoma insists that at no time during the construction of his furniture store or parking area, or the operation of his business on the property was he ever contacted by or required to seek approval from the architectural control committee. Nor had anyone ever before complained about any of the violations he has listed as examples, ...

Likewise, prior to construction of the metal warehouse behind the furniture store, which has precipitated the instant controversy, Stoma received no communication from the architectural control committee, even though Cecil Trahan, the [95-1568 La.App. 3 Cir. 4] developer, was fully aware that he was constructing a new metal building. Neither were any complaints ever lodged until the one from the plaintiff.

The defendant maintains that he never deliberately violated any subdivision restrictions. Subsequent to receiving the notice from the developer, Stoma began to take steps he believed would bring the building into compliance, and for which he claims to have secured approval from the developer. He has covered part of the metal warehouse with a synthetic stucco material at a cost of $8,000, and anticipates that it would cost an additional $10,000 to $15,000 to complete this project. The original cost to construct the warehouse was $140,000 to $150,000.

The plaintiff, Dr. Harold Travasos, testified at trial that he was fully aware of the subdivision restrictions when he purchased the property in December 1983, for $335,000. He favored the restrictions believing that they helped to protect the value of the property.

He became aware of the construction of the metal warehouse in question in June of 1993, and immediately called the developer to complain, which in turn precipitated the notice from the developer to the defendant that he was in violation of a subdivision restriction.

The defendant, Stoma, communicated with the plaintiff regarding the problem, and was made aware of the plaintiff's concern about devaluation of his property, which is adjacent to the warehouse location. The defendant informed the plaintiff that he was exploring some options for covering the metal exterior of the warehouse to bring it into compliance.

Stoma proceeded with his plans to apply synthetic stucco to the metal building, but communication between him and Dr. Travasos broke down. The plaintiff, Dr. Travasos, consulted an architect who expressed doubt regarding the feasibility of the synthetic stucco covering. In August 1993, the plaintiff sought the services of an attorney and formally rejected the defendant's proposal. In December 1993, the instant suit was filed.

The plaintiff testified that, since the filing of this lawsuit, specifically in February 1994, he was approached by two separate restaurant operators who were interested in leasing his property. There was discussion with these prospective tenants concerning the restriction on metal buildings and the ongoing litigation over Stoma's warehouse. He has not heard from them again, and can only speculate that the metal building on the adjacent property or the litigation surrounding it is the cause of their lack of further interest.

[95-1568 La.App. 3 Cir. 5] Wayne Corne, the architect hired by the plaintiff, testified that he has reviewed the subdivision restrictions and proposed plans from the defendant to apply a synthetic stucco overcoat onto the metal structure. In his opinion, this material would not bring the building into compliance. The restrictions are very specific, and strictly prohibit metal exteriors on any building in the subdivision. The synthetic covering in his view would not change the fact that the structure is made of metal. He also has misgivings about the ability of this material to adhere to metal, although the contractor engaged by Stoma assures him that it will.

Allen Angers, a licensed real estate broker and appraiser testified that he was hired by the plaintiff to determine the impact of a metal structure on the value of adjacent property. In his opinion, the impact would be negative because it may forecast the erection of other such buildings in the area and could cause a reversion in the classification of...