East Parker Properties, Inc. v. Pelican Realty Co.
| Decision Date | 24 May 1976 |
| Docket Number | No. 10761,10761 |
| Citation | 335 So.2d 466 |
| Parties | EAST PARKER PROPERTIES, INC. v. PELICAN REALTY CO. et al. |
| Court | Court of Appeal of Louisiana — District of US |
E. Drew McKinnis and Martin C. Schroeder, Jr., Baton Rouge, for appellants.
Donald S. Zuber and John W. L. Swanner, Baton Rouge, for plaintiff-appellee.
Before LANDRY, COVINGTON and PONDER, JJ.
Plaintiff-appellee, East Parker Properties, Inc., (Parker) filed this suit for declaratory judgment against the original developer, Pelican Realty Company, and the Owners of lots in College Town Subdivision located in Baton Rouge, Louisiana, to have certain restrictions declared abandoned, so as to allow construction of an apartment complex on Lots 1 through 9 of Square 7 of that subdivision. Some of the defendants reconvened, averring: that Lot 3 of Square 7 was a servient estate owing a servitude of passage or other 'real rights' to a cemetery and a park, both adjacent thereto; that the judgment in Suit No. 105,944 on the docket of the 19th Judicial District Court for the Parish of East Baton Rouge, entitled John S. Garrett and Thomas H. Garrett v. Pelican Realty, et al, 'directing that recorded building restrictions in College Town Subdivision . . . shall not prohibit or prevent . . . const(ruction) (of) multiple apartment buildings on Lots 6, 7, 8 and 9 of Square 7,' should be declared null because not all owners in the subdivision were joined as defendants; and that all restrictions of College Town are still effective, not having been abandoned.
After trial, the judge below rendered judgment 'in favor of plaintiff and defendant-in-reconvention, East Parker Properties, Inc . and against the defendants and plaintiffs-in-reconvention . . . decreeing that the building restrictions in College Town Subdivision have been waived and are null and void, insofar as they would prohibit the construction of apartment houses on Lots 1, 2, 3, 4, 5, 6, 7, 8, 9 of Square 7 . . . and further that the building restrictions . . . as they relate to sideline restrictions, multi-residential use of lots, front and rear setback lines, building lines, garage location restrictions, and any and all other building restrictions are null, void, invalid and not applicable to Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Square 7 . . .' and that the reconventional demand of the various plaintiffs-in-reconvention be dismissed.
Some of the defendants and plaintiffs-in-reconvention have timely appealed the judgment of the lower court. 1
The developer obligated itself to put the following restrictions in all acts of sale:
'(1) The building line of the lot herein described is hereby fixed and shall not be less than thirty (30) feet back from and parallel with the front line of said lot, and no building of any kind shall ever be built nearer to the front of said lot than said thirty (30) feet building line, and no residence or garage shall be placed nearer than fifteen (15) feet to either side line of said lot, and no owner shall ever erect more than one residence on any one lot . . ., provided that when the same person . . . is the owner of more than a whole lot, he . . . may treat the whole property . . . as one lot, and buil(d) accordingly, provided that under no circumstance shall more than one residence be built on any lot or piece of ground less than seventy (70) feet in width; and provided further that the front of no garage when built separate from a residence shall be more than forty (40) feet from the rear line of said lot.
'(2) (The owner shall not) ever use or permit the use of any house or houses erected on said lot or lots . . . either directly or indirectly for business purposes of any description, except Square 1, it being understood that the above described lot or lots are for residential purposes only.
'(3) That the above described lot or lots shall never be transferred by sale or donation or otherwise, or leased, to any negro or colored person or any negro or colored person permitted to occupy the same, except as servants and their immediate families domestic to any white family occupying same.'
College Town, in slightly over fifty years, developed into a quaint subdivision, reflecting considerable architectural variety. Most of the 196 lots in the subdivision have been beautifully landscaped with emphasis on flowering plants, such as camellias and azaleas. Many of the residents have recently expended large sums of money refurbishing their homes. One home was recently featured in 'Better Homes and Gardens,' a national well-known magazine. Several large expensive homes have recently been built.
All witnesses testified that College Town is a nice place to live. It is considered a 'professional' neighborhood, inhabited by a large number of college professors, doctors and lawyers. Its location next to campus makes it highly desirable and convenient.
The dispute over the entrance to the cemetery and the park arises from a notation on the early maps of a corridor along the side of Lot 3 of Square 7 from University Boulevard (now East Parker Boulevard) to the cemetery and the park, indicated by a dotted line together with the word 'Entrance' printed thereon. Any claim to this entrance has been negated by the appropriate authorities. There was no evidence that the 'Entrance' was needed or being used in any manner in connection with the park or the cemetery. Both facilities have adequate access otherwise. The claim that the 'Entrance' was a part of the cemetery and therefore inalienable is not supported by any evidence other than inference from the notation on the maps. We find that inconclusive. This portion of the reconventional demand should have been denied by the lower court rather than pretermitted.
On March 24, 1965, John and Thomas Garrett, Parker's predecessor in title, filed suit to have College Town's building restrictions declared null 'solely insofar as the restrictions affect Lots 6, 7, 8 and 9, of Square 7 . . .,' so as to 'permit construction of apartment houses' on these lots. Nellie Mae Coerver, a property owner, was made a defendant. Gerard E. Kiefer, an attorney appointed to represent the non-resident defendants, filed answer for them. Elayn Hunt, who represented a majority of the numerous defendants, also filed an answer on behalf of Nellie Cahill Coerver. However, Mrs. Coerver had died on March 18, 1965, before the suit was filed. On April 20, 1965, Thomas Coerver was made testamentary executor of his mother's estate. On May 3, 1965, Thomas together with three brothers and four sisters were put into possession of their mother's estate, including the house at 4448 Oxford Avenue. The judgment in the Garrett suit was signed on November 23, 1965.
Mr. Kiefer testified that since he had the telephone numbers of both Thomas and Michael Coerver in his file he must have talked to them and advised them of the suit. The lower court held that 'since the administrator of the estate had actual knowledged of the litigation, the general appearance by Mr. Kiefer completely cured any irregularities in service or citations.' We disagree.
Foregoing any questions as to the scope of Mr. Kiefer's authority to represent the succession and the sufficiency of the proof of communication with Thomas and Michael Coerver, we find the representation ineffective. Actual knowledge of the pendency of suit does not obviate the necessity of citation and service of process. Mrs. Coerver was deceased at the time of the filing of suit; her succession was never made a party; the eight heirs had been put into possession shortly after Mr. Kiefer on April 27, 1965, filed an answer for the 'absent defendants' and before the filing of answer by Miss Hunt on June 18, 1965, and months before the signing of the judgment on November 23, 1965. A judgment against a deceased person is a nullity. Gulfco Finance of Livingston, Inc. v. Lee, 224 So.2d 524 (La.App.1st Cir. 1969). Since neither the administrator, Thomas Coerver, nor any of the heirs, who were the actual owners of the College Town property at the time the Garrett judgment was signed, was served with process and none of them made a general appearance, they are now entitled to judgment decreeing the nullity of the Garrett judgment as it affects them. See C.C.P. Art. 2002. 2
Generally, the courts will enforce building restrictions imposed upon land according to the intent of the subdividers, provided they not be against public policy and not be abandoned.
It is not every violation that will lead to abandonment. We must look to the intention of those imposing and those seeking to continue the building restrictions. Insubstantial, technical or infrequent violations, not subversive of the general plan or scheme, are to be given little effect.
In deciding whether or not restrictions have been abandoned, we must first decide what the subdividers intended the plan and scheme of the subdivision to be; then we must inquire into each alleged violation to determine whether the intended plan and scheme are disrupted. It is our conclusion that the restrictions in this case taken as a whole evidence an intent to allow only one family per lot .
Whether there has been acquiesence in violations of subdivision restrictions sufficient to defeat enforcement of the restrictions depends upon the circumstances of each case, including particularly the character, materiality and number of the violations and their proximity to the objecting residents. Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1960). Generally, where there have been frequent and substantial violations of the restrictions without objection, the restrictions are regarded as having been abandoned. Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941). However, for this rule to be applicable, the property owner against whom abandonment is asserted, must have known of the alleged...
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