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Date: 11-24-2017

Case Style:

LAKEWOOD PROPERTY OWNERS' ASSOCIATION AND MARK HARRIS SAMUELS V. KYLE SMITH AND CHRISTINE SMITH

Case Number: 2017-CA-0382

Judge: Judge Roland L. Belsome Judge Joy Cossich Lobrano Judge Marion F. Edwards

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: Jennifer L. Thornton

Defendant's Attorney: Henry W. Kinney
Michael L. DeShazo Aaron N. Maples

Description: This case comes before us after extensive litigation and for the second time
on appeal. The record from the first appeal reveals that the Appellants‟ submitted
their plans to build their carport to the LPOA Architectural Review Committee
(ARC),1 who rejected the plans for failure to comply with the LPOA building
restrictions. Specifically, the Building Restrictions required a five-foot setback
from side interior yard lines.2 Later, Appellant, Christine Smith, sent a letter to the

1 The ARC was formerly named the Architectural Control Committee. See Lakewood Prop. Owners' Ass'n v. Smith, 14-1376, p. 3 (La. App. 4 Cir. 12/23/15), 183 So.3d 780, 783, writ denied, 16-0138 (La. 2/26/16), 187 So.3d 469. 2 Id., 14-1376, pp. 2-3, 183 So.3d at 783.



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chair of the ARC indicating the Appellants‟ intentions to move forward with
constructing the carport despite the ARC‟s denial. The ARC chair responded,
stating they would take appropriate action if the Appellants‟ structure did not
comply with the Building Restrictions. While aware of the potential consequences
of their choice, the Appellants went forward with construction of the carport
without the approval of the ARC.3 The Appellants began construction, placing the
structure only two-and-one-half feet from the property line. After a trial, the court
granted injunctive relief in favor of the Appellees and ordered the removal of the
illegally constructed carport.
In the first appeal, this Court affirmed the trial court‟s judgment. However,
the matter was remanded for a determination as to whether the carport could be
made compliant with the LPOA‟s Building Restrictions for Lakewood South,
Section Two, Restriction Four, without being completely demolished.4 Following
a trial on remand, the court again ordered the removal of the carport, specifically
finding that the Appellant‟s proposed remodel did not comply with the Building
Restrictions. Therefore, it held that the only remedy was to demolish the carport.
This timely suspensive appeal followed.
STANDARD OF REVIEW
When reviewing questions of fact as determined by the factfinder, be it a
jury or a judge, appellate courts utilize the manifest error or clearly wrong standard
of review. Sassone v. Doe, 11-1821, pp. 2-3 (La. App. 4 Cir. 5/23/12), 96 So.3d

3 Lakewood Prop. Owners' Ass'n v. Smith, 14-1376, pp. 2-3, 183 So.3d at 783. 4Id., 14-1376, p. 26, 183 So.3d at 795.


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1243, 1245. “[A]n appellate court may not set aside a trial court's finding of fact in
the absence of manifest error or unless it is clearly wrong, and where two
permissible views of the evidence exist, the fact finder's choice between them
cannot be manifestly erroneous or clearly wrong.” Sassone, 11-1821, p. 3, 96
So.3d at 1245. In order to reverse findings of the factfinder, “an appellate court
must undertake a two-part inquiry: (1) the court must find from the record that a
reasonable factual basis does not exist for the finding of the trier of fact; and (2)
the court must further determine the record establishes the finding is clearly
wrong.” S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La. 7/6/10), 41 So.3d
1119, 1127. The Louisiana Supreme Court explained this Court's role as follows:

[u]ltimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882–883. Accordingly, where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Id. at 883.

S.J., 09-2195, pp. 12-13, 41 So.3d at 1127.

The manifest error standard of review is also used for reviewing “mixed
questions of law and fact.” Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 5 (La.
App. 4 Cir. 4/10/13), 116 So.3d 720, 724 (citation omitted). Conversely, appellate
courts review questions of law using the de novo standard. Id.
LAW AND ANALYSIS
Although the Appellants raise numerous assignments of error, the narrow
issue currently before this Court is whether the trial court was manifestly erroneous


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in finding that the carport could not be made compliant with Restriction Four,
without being completely demolished. In its principal assignment of error, the
Appellants claim that the trial court erred when it ordered them to demolish the
carport, because moving the columns inward by two-and-one-half feet would bring
the carport into compliance with the building restrictions.
Lakewood South, Section Two, Restriction 4 states:
No building shall be located on any lot nearer to the front lot line or nearer to the side street line than the minimum building set back lines shown on the recorded plat. In any event, no building shall be located on any lot nearer than 20 feet to the front lot line or nearer than 12 ½ feet to any side street line. No building shall be located nearer than five (5) feet to an interior lot line or twenty (20) feet to the rear lot line, except that the sideline restriction shall not apply to a detached garage, carport or other outbuilding located sixty-five (65) feet or more from the front lot line, which detached garage, carport or other outbuilding shall not be nearer to an interior lot line than three (3) feet unless the same is constructed on the rear and side line of the property. If such detached garage, carport or other outbuilding is not constructed in the rear corner of the lot on both property lines, then same shall not be nearer to an interior lot line than three (3) feet. For the purposes of this covenant, eaves shall not be considered as a part of a building, provided, however, that this will not be construed to permit any portion of the building on a lot to encroach upon another lot: and further, a garage or carport shall be considered detached even if connected with the main building by a walkway, runway, or breezeway.5

It is undisputed that the Smith‟s carport was built within five feet of the
adjacent interior line of the property, in violation of Restriction Four, which
requires a five foot setback.6 At trial, the Appellants offered only one alternative to
bring the carport into compliance: moving the columns inward by two-and-one
half feet.

5 See Lakewood Prop. Owners' Ass'n, 14-1376, p. 3, 183 So.3d at 783 n. 3. 6 See Lakewood Prop. Owners' Ass'n, 14-1376, pp. 11-12, 26 183 So.3d at 788, 795 (where this Court specifically found the structure was in violation of Restriction 4).


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The Appellants‟ expert architect, Elmore Tregre, III, testified that the
attached carport could be brought into compliance by moving the columns inward
thirty inches, an additional two-and-one-half feet. He reasoned that moving the
columns inward would create an eave; and, since eaves are allowed to extend to the
property line, the structure would be in complete compliance with the building
restrictions. However, on cross-examination, Mr. Tregre admitted that the
Building Restrictions did not provide a definition for an eave; therefore one would
apply the definition provided in the New Orleans Comprehensive Zoning
Ordinance (CZO).7
In addition, the Appellees‟ expert architect, Mr. Richard Albert, explained
that the CZO specifically defined “eave” as: “„the projecting edges of a roof
overhanging the wall of a structure.‟” He confirmed that under the CZO the
definition of eave cannot apply to a carport roof overhang, thus the five-foot
setback requirements must be met for the entire structure of the carport, including
the overhang. He explained: “the purpose of an eave would be to assist in keeping
the exterior wall dry.” He further explained that the CZO does not allow attached
carports to contain a wall. Thus, he concluded that a carport could not contain an
eave.
On rebuttal, Mr. Tregre admitted that under the CZO an eave can only
extend from a wall. Therefore, he agreed that the roof extension from the columns
of the carport was not an eave; rather, it was an overhang.

7 The CZO specifically defines eave as the following: “The projecting edges of a roof overhanging the wall of a structure.


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In its reasons for judgment, the trial court found that moving the columns
inward did not comply with the building restrictions. Since this was the only
alternative offered at trial, the court concluded that demolition was the only option.
The Appellants argue that Mr. Albert‟s testimony was inconsistent with the
Building Restrictions in that he opined that Building Restriction Four prohibited
attached carports. The Appellants misstate Mr. Albert‟s testimony. However,
assuming arguendo that the testimony was inconsistent, the trial court was free to
reject the inconsistent parts. See Temple v. Schwegmann Giant Super Markets,
95-2491, pp. 4-5 (La. App. 4 Cir. 7/10/96), 677 So.2d 1103, 1105-1106 (the trier of
fact may also choose to reject all of the testimony of any witness or may believe
and accept any part or parts of a witness' testimony and refuse to accept any other
part or parts thereof).
Nevertheless, the record reflects that Mr. Albert testified that an attached
carport would be in compliance with Restriction Four if the entire structure met the
five-foot setback requirement. Likewise, Appellants‟ expert testified that the
setback requirement applies because the carport was attached (to the main
building) and fell “within the requirements for the building itself.” The chief
disagreement between the two experts‟ testimonies related to whether moving the
columns inward, without moving the roof, would bring the structure into
compliance.
Though their own expert acknowledged that the roof projection was not an
eave, the Appellants attempt to characterize the roof projection as an eave, using
this word interchangeably with “overhang.” However, the trial court clearly
rejected this contention and the record supports this finding. Concluding the CZO
defined an eave as a projection from a wall, the trial court resolved this dispute in


7
favor of Mr. Albert, finding that the carport did not have a wall, thus moving the
columns inward would not create an eave as defined by the Building Restrictions.
In support of its conclusion, the trial court also cited to an electronic mail written
by Tommy Meric and submitted into evidence. Mr. Meric, who was on the
architectural review committee for the LPOA and was also an architect, opined that
“any structural elements such as columns or supporting walls related to the
building and or proposed roof structure related to a carport should be no closer
than 5 feet from the side yard property line.” Based on the evidence admitted at
trial, there was a reasonable basis for the trial court‟s conclusion.
Notably, Appellants raise several other assignments of error outside of the
narrow issue currently before this Court. Particularly, among other arguments,
Appellants complain of the trial court‟s refusal to hear equity arguments and
question whether Restriction Four even applies to their carport. These issues were
raised and addressed in the first appeal,8 and the Louisiana Supreme Court denied
Appellants‟ application for supervisory writs. We will not consider these issues
again, as they were previously reviewed and are now final.

Outcome: Considering the foregoing, there was a reasonable basis for the trial court to
conclude that the only proposed remodel would not comply with Restriction Four.
Accordingly, we cannot find that the trial court was manifestly erroneous in
finding that demolition of the carport was the only feasible option. For these
reasons, the judgment of the trial court ordering the demolition of the Appellants‟ carport is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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