St. Pierre Ass'n v. Smith

• Decision Date: 06 December 2017
• Docket Number: NO. 2017–CA–0228,2017–CA–0228
• Citation: 234 So.3d 170
• Parties: ST. PIERRE ASSOCIATION v. Jude SMITH
• Court: Court of Appeal of Louisiana — District of US

234 So.3d 170

ST. PIERRE ASSOCIATION

v.Jude SMITH

NO. 2017–CA–0228

Court of Appeal of Louisiana, Fourth Circuit.

December 6, 2017

E. John Litchfield, Michael J. Marsiglia, BERRIGAN LITCHFIELD, LLC, 201 St. Charles Avenue, Place St. Charles, Suite 4204, New Orleans, LA 70170, COUNSEL FOR PLAINTIFF/APPELLEE

Richard J. Richthofen, Jr., RICHTHOFEN & ASSOCIATES, LLC, 400 Magazine Street, Suite 300, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods )

Judge Regina Bartholomew Woods

Appellant, Jude Smith ("Appellant" or "Smith") appeals the trial court's November 18, 2016 judgment wherein the trial court granted summary judgment in favor of Appellee, St. Pierre Association ("Appellee" or "St. Pierre"). For the reasons that follow, we reverse the trial court and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Appellee is a Louisiana condominium association affiliated with the St. Pierre Condominiums located at 1022 St. Peter Street in the French Quarter of New Orleans, Louisiana.¹ Appellant is the owner of Unit 204 ("the unit") of the St. Pierre Condominiums. On October 23, 2014,² Appellee filed a Petition for Preliminary and Permanent Injunction, and for Delinquent Condominium Fees against Appellant; St. Pierre prayed for $6,260.19, which represented delinquent fees and late charges owed through October 16, 2014.³ In its petition, St. Pierre stated that the condominium association had filed a claim of privilege⁴ , which was recorded at Instrument Number 2014–19796. According to St. Pierre, it filed the action against Appellant, because Smith, inter alia , was performing construction work on the unit without proper permits and in violation of the City of New Orleans' ordinances, as well as the condominium association's rules and regulations. St. Pierre further asserted that the construction work was potentially rendering the unit structurally unsafe and creating a hazard to other units.

On April 23, 2015, the trial court conducted a hearing on the preliminary injunction. In its April 24, 2015 judgment granting the preliminary injunction in favor of St. Pierre, the trial court ordered Smith to "obey the statutes and ordinances of the City of New Orleans, the rules and regulations of the Vieux Carre' Commission, and the provisions of the Declaration of Condominium, bylaws and rules, and regulations of the St. Pierre Condominium Association, insofar as it applies to construction work performed by or on [Appellant's] behalf." The trial court further ordered Smith to complete specific construction tasks by no later than close of business on May 25, 2015. The trial court reserved other pending issues for further adjudication.

Because Smith failed to comply with the aforesaid judgment, on June 4, 2015, St. Pierre filed a Rule for Contempt. The trial court held an evidentiary hearing on September 9, 2015. On September 10, 2015, the trial court rendered judgment in favor of Appellee, finding Appellant to be in contempt of its April 24, 2015 judgment. The trial court granted St. Pierre custody and control of the unit to conduct inspections and perform work to stabilize it.

On October 13, 2015, St. Pierre filed an amended claim of privilege in the amount of $17,360.58. On May 17, 2016, St. Pierre filed a Motion for Summary Judgment concerning delinquent condominium fees and assessments that Smith owed and, for the first time, sought $17,360.58, as opposed to $6,260.19, as alleged in its petition. Several months later, on July 20, 2016, St. Pierre filed another amended claim of privilege in the amount of $85,407.23, which included architectural fees and construction costs.⁵ Subsequently, on October 12, 2016, Appellee filed a supplemental memorandum in support of its motion for summary judgment and sought judgment in the amount of $85,407.23.

On November 18, 2016, the trial court granted the motion for summary judgment in favor of St. Pierre and against Smith in the amount of $85,407.23. It is from this judgment that Smith now appeals.

DISCUSSION

Appellant raises as an assignment of error that the trial court erred in granting the motion for summary judgment in favor of St. Pierre. Specifically, Appellant argues that the trial court erred in granting summary judgment on three different bases: it erred in granting summary judgment in St. Pierre's favor in an amount higher than what St. Pierre pled in its petition; it erred in granting summary judgment when St. Pierre failed to properly preserve its claim of privilege; and it erred in granting summary judgment when Appellant was unable to conduct adequate discovery.

Standard of Review

In Alexander v. Hancock Bank , this Court articulated the standard for reviewing a trial court's decision regarding a motion for summary judgment, in light of the 2016 amendment to La. C.C.P. art. 966, as follows:

An appellate court conducts a de novo review, applying the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Brown v. Amar Oil Co. , 2011-1631, p. 2 (La. App. 1 Cir. 11/8/12), 110 So.3d 1089, 1090 (citing Sanders v. Ashland Oil, Inc. , 96-1751, p. 6 (La. App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035 ). A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Collins v. Randall, 2002-0209, p. 3 (La. App. 1 Cir. 12/20/02), 836 So.2d 352, 354. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. King v. Allen Court Apartments II , 2015-0858, p. 3 (La. App. 1 Cir. 12/23/15), 185 So.3d 835, 837, writ denied , 2016-0148 (La. 3/14/16), 189 So.3d 1069. This procedure is favored and shall be construed to accomplish these ends. Id. ; see also La. C.C.P. art. 966 A(2).

The initial burden of proof rests on the moving party. La. C.C.P. art. 966 D(1). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather, to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. King , 2015–0858 at p. 3, 185 So.3d at 838. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. It is only after the motion has been made and properly supported that the burden shifts to the non-moving party. Brown , 2011–1631 at p. 3, 110 So.3d at 1090–91 ; Pugh v. St. Tammany Parish School Bd. , 2007-1856, p. 3 (La. App. 1 Cir. 8/21/08), 994 So.2d 95, 98.

A genuine issue is a triable issue. Brown , 2011–1631, p. 3, 110 So.3d at 1090–91. Jones v. Stewart , 2016-0329, p. 7 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 389, writs denied , 2016–1962, 2016-1967 (La. 12/16/16) 2016 WL 7638451, 2016 WL 7638388. More precisely, an issue is genuine if reasonable persons could disagree. Id. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id. A fact is material when its existence or non-existence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Id. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Id. ; King v. Illinois Nat. Ins. Co. , 08-149, p. 6 (La. 4/3/09), 9 So.3d 780, 784. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of substantive law applicable to the case. Brown , 2011–1631 at p. 3, 110 So.3d at 1091 ; Hall v. Our Lady of the Lake R.M.C. , 2006-1425, p. 9 (La. App. 1 Cir. 6/20/07), 968 So.2d 179, 185. In order to determine whether the trial court's grant of summary judgment was proper, this court must look to the applicable substantive law.

Alexander v. Hancock Bank , 2016–0662, 2–4 (La. App. 4 Cir. 2/8/17), 212 So.3d 713, 715–16.

Appellant asserts that in its petition, St. Pierre, sought damages solely in the amount of $6,260.19, which represented, inter alia , delinquent condominium fees and late charges; and never amended the petition to allege any other amounts of money owed by Appellant. Notwithstanding the aforementioned, on October 13, 2015, Appellee filed an amended privilege in the amount of $17,360.58.⁶ In connection with the amount set forth in the amended privilege, on May 17, 2016, Appellee filed a motion for summary judgment, in which it sought a monetary judgment in the amount of $17,360.58. On August 3, 2016, Appellee filed another amended claim of privilege in the amount of $85,407.23. In connection with this amended claim of privilege, on October 12, 2016, Appellee filed a supplemental memorandum in support of its motion for summary judgment, and sought damages in the amount of $85,407.23. On November 18, 2016, the trial court granted Appellee's motion for summary judgment in the amount of $85,407.23.

Special damages, (such as condominium assessments, architectural fees, and construction costs), are damages "which can be fixed to pecuniary certitude." Hollenbeck v. Oceaneering Int'l, Inc. , 1996-0377 (La. App. 1 Cir. 11/8/96), 685 So.2d 163, 175 ; Stevens v. Winn–Dixie of Louisiana, 1995–0435, p. 9 (La. App. 1st Cir. 11/9/95); 664 So.2d 1207, 1213. "[W]hen special damages are claimed, they must be specifically alleged." La. C.C.P. art. 861. "[A] trial court may not award special damages which...