Oak Ridge Builders, Inc. v. Bryant, 3543

• Decision Date: 20 August 1971
• Docket Number: No. 3543,3543
• Parties: OAK RIDGE BUILDERS, INC., et al., Plaintiffs-Appellees, v. Mary Louise BRYANT, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 169

252 So.2d 169

OAK RIDGE BUILDERS, INC., et al., Plaintiffs-Appellees, v. Mary Louise BRYANT, Defendant-Appellant.

No. 3543.

Court of Appeal of Louisiana, Third Circuit.

Aug. 20, 1971.

Rehearing Denied Sept. 23, 1971.

Writ Refused Oct. 28, 1971.

Hunt, Godwin, Painter & Roddy by Joseph Greenwald, Lake Charles, for defendant-appellant.

Vance Plauche , Anderson, Leithead, Scott, Boudreau & Savoy by Robert Boudreau Lake Charles, for plaintiffs-appellees.

Before FRUGE , MILLER, and DOMENGEAUX, JJ.

FRUGE , Judge.

This action is a suit for a permanent injunction brought by Oak Ridge Builders, Inc., and some 13 property owners of a subdivision, seeking to enjoin the defendant from operating a beauty parlor in her home. The injunction was sought on the ground that the operation of a beauty parlor violated restrictive covenants applicable to the subdivision property.

Following a trial on the merits, judgment was rendered in favor of the plaintiffs in accordance with the oral reasons assigned by the District Court on September 30, 1970. Written reasons were handed down and the defendant was restrained and enjoined from operating a beauty parlor on her property in Cherry Hill Subdivision, No. 2, Lake Charles, Louisiana. The court held that the defendant, Mary Louise Bryant, was in violation of recorded restrictive covenants. The court also overruled a plea of prescription filed by the defendant. Subsequently, defendant perfected the instant appeal. We affirm.

This appeal has three issues for our consideration. These issues are: (1) Do the recorded restrictive covenants (which admittedly apply to the defendant's premises) forbid a business activity of the nature in which Mrs. Bryant is engaged? (2) If Mrs. Bryant has been doing business in violation of the restrictive covenants, are the plaintiffs precluded from enjoining her because she has been doing so far more than two years? LSA-R.S. 9:5622(A). (3) Does a valid zoning ordinance, causing an area to be zoned commercial, prevent the subsequent establishment of restrictive covenants, limiting the area to residential buildings?

The appellant contends that her activities were not in violation of the restrictive covenants in the subdivision. Appellant contends that for her business to be in violation of the restrictive covenants, the business activity in which she was engaged would have to be a noxious or offensive one.

Paragraph 7 of the recorded instrument containing the various building restrictions governing the subdivision reads:

'No noxious, offensive, unsanitary, unsightly or unusually noisy activity or business may be carried on upon any lot, nor shall anything be done thereon that might be considered a nuisance to the neighborhood.'

The appellee takes the position that this paragraph forbids noxious, offensive or unsanitary activities, or any kind of business activity.

We think when the instrument is read as a whole, that it makes it clear that the entire subdivision is limited to single family, residential dwellings, and prohibits the carrying on of any business activity as such.

Another portion of the instrument in question, Paragraph 1, reads:

'No structure shall be erected, altered, placed or permitted to remain on any residential lot hereinabove described other than one detached single family dwelling and shall not exceed two and one-half stories in height with a private garage or carport and other outbuildings incidental to residential use.'

In Plauche v. Albert, 42 So.2d 876 (La.App.1st Cir., 1949), the court interpreted a restrictive provision which read:

'No building shall be erected on any part of the property hereinabove described other than a single family dwelling and a garage or out-house, to be used in connection with the said single family dwelling.'

It was held that this restriction prohibited the use of a structure as a warehouse.

In light of the entirety of the instrument establishing the restrictive covenants, we hold that a business activity as such on any of the premises covered by these covenants is restricted and prohibited.

The next question for our determination is whether or not the activity in which Mrs. Bryant is engaged is a business, and if it is, for how long has Mrs. Bryant been operating this business?

Mrs. Bryant is a licensed beauty operator under the laws of Louisiana. She apparently has been fixing ladies' hair in her home since 1967. Mrs. Bryant testified that hers was a part-time business prior to the first part of 1970, but that now it is a full-time business. She apparently told her next-door neighbor early in 1970 that she was opening a beauty parlor in her home, and in February of 1970 her home was licensed as a beauty parlor by the State of Louisiana.

Mrs. Bryant's activity prior to 1970 amounted to having only one customer at a time, or occasionally two, in her home.

In his written reasons for judgment, the trial judge stated:

'Mrs. Bryant's home was licensed as a beauty parlor by Louisiana in February of 1970. She stated she bought bigger dryers and put in a shampoo bowl. Prior to February, 1970 she fixed her customers'...