Opinion
2021 CA0901
03-30-2022
PORT LOUIS OWNERS ASSOCIATION, INC. v. JOSEPH CARONNA
James E. Moorman, III Rykert O. Toledano, Jr. Covington, LA and Anthony S. Maska Hammond, LA Attorneys for Plaintiff -Appellee, Port Louis Owners Association, Inc. Kent B. Payne Covington, LA Attorney for Defendant -Appellant, Joseph Caronna
NOT FOR PUBLICATION
On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 2018-12626 Honorable Alan A. Zaunbrecher, Judge Presiding
James E. Moorman, III Rykert O. Toledano, Jr. Covington, LA and Anthony S. Maska Hammond, LA Attorneys for Plaintiff -Appellee, Port Louis Owners Association, Inc.
Kent B. Payne Covington, LA Attorney for Defendant -Appellant, Joseph Caronna
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
HESTER, J.
This matter is before us on appeal by defendant, Joseph Caronna, from the trial court's judgment in favor of plaintiff, Port Louis Owners Association, Inc. For the reasons the follow, we amend and affirm as amended in part and reverse and render in part.
FACTUAL AND PROCEDURAL HISTORY
The Port Louis Owners Association, Inc. (the "Association") is a homeowners association formed and governed through an Act of Dedication ("Dedication") dated December 5, 1984, and Articles of Incorporation dated June 15, 1988. The Association promulgated Bylaws in a document dated June 17, 1988, which provided that the Association shall be governed by a Board of Trustees ("Board"). The payment of assessments and special assessments, the consequences for nonpayment, and the duties and obligations of the Association are governed by the provisions of the Dedication and the Bylaws.
On May 24, 2018, the Association filed a Petition to Enforce Privilege and Suit on Open Account against Mr. Caronna, an owner of one of the units within the property administered and operated by the Association. Mr. Caronna was alleged to be delinquent and in default of his obligation to pay annual and special assessments. The Association sought to enforce the privilege it secured against Mr. Caronna and his immovable property and further sought judgment in its favor for the principal sum of $13,747.00 in addition to late fees, interest (at a rate of 18% per annum until paid), and attorney fees pursuant to La. R.S. 9:1145 and Article VII, Section 7.01 of the Dedication. The Association also sought to recover delinquent annual and special assessments owed by Mr. Caronna accruing on or after November 1, 2017 in the amount of $2,133.00 in addition to late fees, interest, and attorney fees.
According to the petition, the Association took steps to secure a privilege on Mr. Caronna's lot and unit pursuant to La. R.S. 9:1145, et seq.
Mr. Caronna answered and filed a reconventional demand against the Association, alleging the Association was liable for damages sustained as a result of the failure to maintain the exterior of his unit and also sought specific performance of the Association's duty to maintain and repair the exterior of the property as set forth in the Dedication. The Association answered and denied the demands as written, averring that the Dedication itself was the best evidence of its terms and contents.
Mr. Caronna initially answered on September 12, 2018, and later filed an amended answer with affirmative defenses as well as a reconventional demand on November 25, 2020.
On January 26, 2021, the matter proceeded to a bench trial wherein evidence and testimony was received. At the conclusion of the trial on the main and reconventional demands, the trial court permitted post-trial memoranda to be filed and took the matter under advisement. Thereafter, the trial court issued reasons for judgment and rendered judgment in favor of the Association and against Mr. Caronna. Specifically, the judgment granted the Association's Petition to Enforce Privilege and Suit on Open Account; ordered Mr. Caronna to pay $29,674.00 plus annual interest at 18% to the Association; ordered Mr. Caronna to pay the Association $5,921.07 in attorney fees; dismissed Mr. Caronna's reconventional demand with prejudice; and ordered each party to bear its own costs.
In the trial court's judgment, the Association is incorrectly identified as "Port Louis Owners Association, LLC" in both the caption of the suit and in the decrees. The correct name should be "Port Louis Owners Association, Inc.," and we amend the judgment to reflect same.
Mr. Caronna now appeals contending the trial court erred in finding him liable to the Association for dues, assessments, interest, and attorney fees and in finding that Mr. Caronna was not entitled to damages and/or specific performance for the Association's breach of duty under the Dedication.
STANDARD OF REVIEW
The appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014-2592 (La. 12/8/15), 193 So.3d 1110, 1115. The proper interpretation of a contract is a question of law subject to de novo review on appeal. When considering legal issues, the reviewing court accords no special weight to the trial court, but conducts a de novo review of questions of law and renders judgment on the record. Louisiana Machinery Co., LLC v. Bihm Equipment Co., 2019-1081 (La.App. 1st Cir. 8/10/21) 329 So.3d 317, 321.
LEGAL PRECEPTS
Louisiana Homeowners Association Act
The provisions of the Louisiana Homeowners Association Act, La. R.S. 9:1141.1, et seq. ("Homeowners Association Act" or "Act"), are applicable to residential planned communities whose declarations have been duly executed and filed for registry. La. R.S. 9:1141.3(A). A "declaration" is defined in the Act as any instrument, however denominated, that establishes or regulates, or both, a residential planned community, and any amendment thereto. La. R.S. 9:1141.2(4). The duly executed Dedication herein established the planned community of Port Louis and subjected the property defined therein to certain building restrictions, rights of use, servitudes, covenants and charges for the benefit of the property and the owners thereof. The Dedication was filed for record and duly recorded on December 5, 1984. While the Dedication "reserved the further right and option herein to create, by subsequent condominium declarations, condominium regimes covering designated portions of the [p]roperty," there is nothing in the record to suggest that any such declaration was made; therefore, the Homeowners Association Act applies to this matter.
The Homeowners Association Act cannot be construed to affect the validity or superiority of any provision of a community document. Only to the extent the community documents are silent shall the provisions of the Act apply. La. R.S. 9:1141.3(A). See also Oak Harbor Prop. Owners' Association, Inc. v. Millennium Group I, L.L.C., 2012-1317 (La.App. 1st Cir. 5/28/13), 2013 WL 2316592, at *3 (unpublished). As defined by the Act, "community documents" are the articles of incorporation, bylaws, plat, declarations, covenants, conditions, restrictions, rules and regulations, or other written instruments, including any amendment thereto, by which the association has the authority to exercise any of its powers to manage, maintain, or otherwise affect the association property or which otherwise govern the use of association property. La. R.S. 9:1141.2(3). In accordance with La. R.S. 9:1141.8, the community documents, which in this case consist of the Dedication, the Articles of Incorporation, and the Bylaws, shall have the force of law between the homeowners association and the individual lot owners and as between individual lot owners. Importantly, the remedies for breach of any obligation imposed on lot owners or the association shall include damages, injunctions, or such other remedies as are provided by law. La. R.S. 9:1141.8.
The Act of Dedication
The Dedication, admitted into evidence at trial, defines a number of terms used throughout the document.
"Assessments" are defined, in part, as "those funds required for payment of the Common Expenses of the Property such as the costs of maintaining, operating, repairing and managing designated portions of the Property, which from time to time are assessed by the Association to and paid by the Owners of Assessable Units, including Annual Assessment and any Special Assessment, as hereinafter provided."
"Common Expenses" are defined as "the cost and expense of administration, maintenance, operation, repair and replacement of Community Areas and Facilities and such other costs as are designated herein as common expenses of the Association."
"Community Areas and Facilities" refer to the "part of the Property which is not a part of the Assessable Units, as is shown on the Plat of Survey [(referenced as attached to the Dedication, but not included in the trial exhibits)], as such Community Areas and Facilities may be expanded from time to time, which is owned or leased by the Association for the common benefit or use of its members, and all improvements thereon, including, without limitation, certain streets, roadways, waterways, parks and greenspaces located within the Property."
"Assessable Units" are defined as "immovable properties within the Property separately owned or leased by 'Owners', including, without limitation, townhouse units, condominium units, Clubs, Marinas, boat slips within Marinas, and Hotels."
"Owner" is "the record owner ... of an Assessable Unit ... [which] may be owned in any form of ownership recognized by Louisiana law."
"Member" is used to mean "either individually or collectively, those individuals, corporations or other legal entities who are Owners of Assessable Units and by virtue thereof are non-stock Members of the Association."
The Dedication sets forth several provisions applicable to assessments. Article V is entitled "Payment of Assessments by Declarant and Association Members" and provides, in pertinent part as follows:
5.03 Annual Assessments and Carry Charges. Each person, group of persons, ... who becomes an Owner ... shall be deemed to covenant and personally agree to pay to the Association, in advance, a monthly sum equal to one-twelfth (1/12th) of the Member's proportionate share of the sum required by the Association, as estimated in an annual budget prepared by ... the Board of Trustees, to meet its annual Common Expenses, including, but not limited to the following:
f. The cost of maintaining, replacing, repairing and landscaping the Community Areas and Facilities, including, without limitation, the cost of maintaining, replacing and repairing the streets, roadways and other areas of the Property (excluding any capital expenditure by the Declarant to construct the improvements initially within the
Community Areas and Facilities) and those parts of the Assessable Units as to which, pursuant to other provisions hereof, it is the responsibility of the Association to maintain, repair and replace, and the costs of purchasing such equipment as the Board of Trustees shall determine to be necessary and proper;
5.04 Special Assessments. In addition to the Annual Assessments authorized by this Article, the Association may levy in any one or more Special Assessments, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, inordinate repair or replacement of a described capital improvement located within the Property, including the necessary fixtures and personal property related thereto, or for such other purposes as the Board of Trustees may consider appropriate.
5.05 Reserve for Replacements. The Association may establish and maintain a reserve fund for replacements by the allocation and payment monthly to such reserve fund of an amount to be designated from time to time by the Board of Trustees. Any assessed annual addition to such reserve fund shall be deemed to be a Common Expense of the Association ... A reserve for replacements may be assessed only for the purpose of effecting the replacement of the Improvements, major repairs to any walkways, streets or roadways existing within the property, equipment replacement, and for operating contingencies of a nonrecurring nature. The proportionate interest of any Owner in any reserve for replacements shall be considered an appurtenance of his Assessable Unit and shall not be separately withdrawn, assigned or transferred or otherwise separated from the Assessable Unit to which it is appurtenant and shall be deemed to be transferred with such Assessable Unit.
5.07 No Waiver. No Owner may exempt himself from liability for any Assessment levied against him or his Assessable Unit by waiver of the use or enjoyment of the Property or by abandonment of his Assessable Unit or in any other way. A purchaser of an Assessable Unit at a judicial sale shall be liable only for Assessments coming due after such sale.
5.10 Right to Maintain Surplus. The Association shall not be obligated in any fiscal year to spend all sums collected in such year through its Annual or Special Assessments, or otherwise, and may allocate such funds to any reserves for repairs or replacement of the Property or carry such surplus funds forward into succeeding fiscal years. The Association shall not be obligated to apply any such surpluses to the reduction of Assessments in a succeeding year, but may carry forward from year to year such surplus as the Board of Trustees in its absolute discretion may determine to be desirable for the greater financial security of the Association.
Article VII of the Dedication is entitled "Default in Payment of Assessment" and provides for the determination of the delinquent date for installments, interest rates, and penalties for late payments. The Association has the option to file suit to enforce the collection of assessments and penalties and may collect interest thereon at a rate of 18% as well as all costs incident to the collection and the suit, including reasonable attorney fees. Further, Article VII provides for the securing of a privilege as established under La. R.S. 9:1145, et seq., on the relative unit for the unpaid portion of an assessment which is delinquent. The remedies provided to the Association are cumulative.
The Dedication also contains provisions regarding the maintenance responsibility of the Association and the owners. Article IX provides, in pertinent part, as follows:
9.01 Responsibility. The responsibility for the maintenance of Improvements is divided between the Association and the Owners. Except for repairs or replacements caused by fire or other casualty, the maintenance, repair and replacement of the interior of improvements within an Assessable Unit and payment of the costs therefor is the responsibility of the respective Owner. Maintenance, repair and replacement of the exterior of the improvements within an Assessable Unit and the costs thereof[] is the responsibility of the Association. The maintenance and Improvements thereon and the costs thereof are the responsibility of the Association.
The Dedication expressly provides the Association remedies for noncompliance and default by owners in Article XIII, which provides, in pertinent part, as follows:
13.01 Each Assessable Unit shall be governed by, and shall comply with all the terms of this Act of Dedication as the same may be amended from time to time. A default by an Owner shall entitle the Association, acting through its Board of Trustees or through the managing agent, to the following relief:
(a) Legal Proceeding. Failure to comply with any of the terms hereof shall be grounds for relief which may include, without intending to limit the same, an action to recover sums due for damages, injunctive relief, foreclosure of privilege or any combination thereof, and which relief may be sought by the Association, or if appropriate, by an aggrieved Owner.
Additionally, the Dedication contains miscellaneous provisions in Article XVII, including Section 17.01, which provides as follows:
Section 17.09 provides that the Board "shall have the right to construe and interpret the provisions hereof, and in the absence of an adjudication by a court of competent jurisdiction to the contrary, its construction or interpretation shall be binding as to the persons bound thereby."The omission or failure of the Association, its Board of Trustees or any Owner to enforce the covenants, conditions, restrictions, servitudes, uses, limitations, obligations or other provisions of this Act of Dedication, Bylaws or the rules and regulations adopted pursuant thereto, shall not constitute or be deemed a waiver, modification or release thereof, and the Board of Trustees, its agents and appropriate Owners shall have the right to enforce the same thereafter.
Bylaws of Port Louis Owners Association, Inc.
Pursuant to the Bylaws, which were also admitted into evidence at trial, all present and future owners, among others, are subject to the provisions of the Bylaws. Upon the purchase of an Assessable Unit, an owner is deemed to accept, approve, and ratify the Bylaws and is automatically a member of the Association. Article VII of the Bylaws describes the powers and duties of the Board. Section B details the Board's fiscal powers and duties, which include the preparation of a budget for the Association, the determination of the amount of assessments payable by the owners to meet the common expenses and costs of the Association, and the allocation of the Assessments among the owners.
With respect to maintenance and repair powers and duties, Section C of Article VII provides as follows:
The Board of Trustees shall provide for the care, security, operation, management, maintenance, repair and replacement of the Community Areas and Community Facilities, except that it shall not be obligated to clean any balcony, patio, or storage space adjoining and directly accessible only from an Assessable Unit. Without limiting the generality of the foregoing, said obligations shall include the keeping of such Community Areas and Community Facilities in good, clean, attractive, and sanitary condition, order and repair; removing any materials from such Community Areas and Community Facilities which might impair access to Port Louis or to any Assessable Unit;
keeping the Property safe, attractive and desirable; making necessary or desirable alterations, additions, betterments or improvements to or on the Community Areas and Community Facilities; providing solid waste disposal, sewage treatment facilities, an adequate drinking water supply, canal and lakeside maintenance, street construction and repair, landscaping and gardening, and fire protection services.
Article VII delineates the powers and duties of the Board and the officers of the Association and provides, in pertinent part, as follows:
A. General. The Board of Trustees shall have the powers and duties necessary for the administration of the affairs of the Association and for the operation and maintenance of a first class residential community including, without limitation, the powers and duties enumerated in this Article VII. The Board of Trustees shall have the authority to do any and all such things for the administration of the Association and the operation and maintenance of the residential, commercial, and professional community except as the Act of Dedication, the Articles of Incorporation, these Bylaws, and applicable laws restrict such authority.
B. Fiscal Powers and Duties. The Board of Trustees shall prepare a budget for the Association at least annually, determine the amount of Assessments payable by the Owners to meet the Common Expenses and Costs of the Association, and allocate and assess such Assessments among the Owners according to the formula set forth in Article X, and by majority vote of the Board adjust, decrease or increase the amount of monthly Assessments, and remit or return or credit, any excess of Assessments over Common Expenses and Costs, working capital, sinking funds, reserve for deferred maintenance and for replacement to the Owners at the end of each operating year. ...
C. Maintenance and Repair Powers and Duties. The Board of Trustees shall provide for the care, security, operation, management, maintenance, repair and replacement of the Community Areas and Community Facilities, except that it shall not be obligated to clean any balcony, patio, or storage space adjoining and directly accessible only from an Assessable Unit. ...
E. Enforcement Powers and Duties. The Board of Trustees shall administer and enforce the Act of Dedication, covenants, conditions, restrictions, easements, servitudes, uses, rules and regulations, limitations, obligations and all other provisions affecting or established for the benefit of the Property.
F. Rulemaking Powers and Duties. The Board of Trustees may establish, make and enforce such reasonable rules and regulations as may be necessary for the operation, use and occupancy of the Property with the right to amend same from time to time. A copy of any such Rules and Regulations shall be delivered or mailed to each Owner promptly upon the adoption thereof.
The Bylaws provide for the payment of assessments and special assessments by member-owners in Article X and also provide for the default in payment of assessments in Article XI. Article XI, Section A is entitled "Non-Payment of Assessment" and provides, in part, as follows:
An Assessment levied pursuant to this Article, or any installment thereof, which is not paid on the date when due shall be delinquent. The personal obligation of the Member to pay such Assessment shall remain his personal obligation and a suit to recover a money judgment for non-payment of any Assessment levied pursuant to this Article, or any installment thereof, may be maintained by the Association.
Article XI also provides additional sections detailing the acceleration of installments, the use of liens, and the institution of lawsuits.
The record does not contain any amendments to the Dedication or Bylaws or any rules or regulations promulgated by the Board.
LAW AND ANALYSIS
Liability for Assessments (Assignment of Error No. 1)
In his first assignment of error, Mr. Caronna maintains that the trial court erred in finding him liable to the Association for dues, assessments, interest, and attorney fees. We find no merit to this assignment of error. The applicable terms of the community documents, which have the force of law between the Association and Mr. Caronna, are clear and unambiguous in this regard. See La. R.S. 9:1141.8.
Article V, Section 5.03 of the Dedication indicates that Mr. Caronna, as an owner, agreed to pay the Association his annual assessments. Mr. Caronna further agreed to the no waiver provision in Article V, Section 5.07 in which no owner is permitted to exempt himself for any assessment levied against him or his unit by any means. Both the Dedication and the Bylaws provide conditions of default in the payment of assessments as well as recourse mechanisms available to the Association. The Association elected to secure a privilege and sought a money judgment against Mr. Caronna for the amount of outstanding assessments, late fees, interest, and reasonable attorney fees.
At trial, the Association provided evidence establishing the default of Mr. Caronna through the testimony of Marc Gagnon of Gagnon Property Management, LLC, which provides property management services to the Association. Such services included the billing as well as the collection of the assessments for the Association. Mr. Gagnon was familiar with the history and current status of Mr. Caronna's account.
According to Mr. Gagnon, he began providing property management services to the Association in October 2016 through his father's company, but later started a company in his own name.
The affidavit of lien (in the amount of $13,747.00), which included the sworn statement of Mr. Caronna's account, the legal description for Mr. Caronna's unit, and the notice of intent to lien sent to Mr. Caronna, was introduced at trial. Further, the Association introduced Mr. Caronna's current statement of account and Mr. Gagnon's testimony to establish that Mr. Caronna owed a total of $29,674.00 in assessments and late fees as of the date of trial, which amount did not include the 18% interest rate on past due assessments pursuant to Article VII, Section 7.01 of the Dedication. Additionally, the Association put forth evidence of legal and collection costs accrued up to and excluding the trial, which costs totaled $5,921.07.
We note that Mr. Caronna acknowledged that he was usually behind on paying his assessments but stated that it was never his intention to blatantly disregard them. At one point when Mr. Durst was the property manager and Mr. Caronna was reporting the initial water leaks, Mr. Caronna paid a lump sum of about $2,400.00 for assessments.
The statement of account showed that in 2014, Mr. Caronna owed $1,191.00 in assessments and paid $397.00; in 2015, he owed $5,193.00 and paid $2,468; in 2016, he owed $5,232.00; in 2017, he owed $5,232.00 in assessments and $225.00 in late fees; in 2018, he owed $4,716.00 in assessments and $300 in late fees. No payments were made by Mr. Caronna since 2015.
Mr. Caronna argues that the Dedication is a commutative contract pursuant to La. Civ. Code art. 1911, which provides that a contract is commutative when the performance of the obligation of each party is correlative to the performance of the other. However, pursuant to the language of the Dedication and Bylaws, which have the force and effect of law between the Association and Mr. Caronna, Mr. Caronna was not permitted to withhold payment of his assessments for any reason so long as he remains an owner. See La. R.S. 9:1141.8. Specifically, Article V, Section 5.07 of the Dedication provides that "[n]o Owner may exempt himself from liability for any Assessment levied against him or his Assessable Unit by waiver of the use or enjoyment of the Property or by abandonment of his Assessable Unit or in any other way." (Emphasis added.)
In view of the evidence presented and the clear language of the community documents, we find no error in the trial court's judgment ordering Mr. Caronna to pay $29,674.00, plus annual interest at 18%, as well as $5,921.07 in attorney fees to the Association. Accordingly, Mr. Caronna's first assignment of error lacks merit.
Breach of Duty, Specific Performance, and Damages (Assignment of Error No. 2)
In Mr. Caronna's second assignment of error, he maintains that the trial court erred in finding that he was not entitled to damages and/or specific performance for the Association's breach of duty under the Dedication. In its reasons for judgment, the trial court stated as follows:
We note that while the trial court provided reasons for denying Mr. Caronna's claims for specific performance, the trial court did not address Mr. Caronna's claims for damages. Nevertheless, the trial court clearly dismissed the entirety of Mr. Caronna's reconventional demand, with prejudice in the March 18, 2021 judgment. See Northshore Regional Medical Center v. Parish of St. Tammany, 96-0717 (La.App. 1st Cir. 12/20/96), 685 So.2d 614, 617 ("[A] trial court's reasons for judgment, while defining and elucidating a case, form no part of the official judgment it signs and from which appeals are taken.").
While the Act of Dedication does give [the Association] the responsibility to maintain, repair, and replace the exterior portions of the property, the Court agrees with [the Association's] argument that the Act of Dedication gives the Board of Directors the discretion to determine what is desirable for the financial security of Port Louis and how to interpret provisions of the Act. The Court finds that the facts and issues in this case correspond with Williams v. Southern Trace Property Owners Association, and apply [sic] the same reasoning of practicality and economy for denying Mr. Carolina's claims requesting specific performance.
In Williams v. Southern Trace Property Owners Association, Inc., 43, 186 (La.App. 2d Cir. 4/23/08), 981 So.2d 196, writ denied, 2008-1348 (La. 9/26/08), 992 So.2d 988, an owner and resident of Southern Trace, a private, gated community, brought suit against the homeowner's association due to the failure of the homeowner's association to enforce its restrictions and covenants. According to Williams's petition, there were at least 300 covenant violations by owners and their guests, among others, since October 2005. Williams sought a declaratory judgment stating that the homeowner's association not only had the power, but also had a duty to enforce the restrictions and covenants contained in the community documents. Id. at 197-98.
The violations specified by Williams included families allowing vehicles to be parked on the street overnight or for longer than a ten-hour period, non-licensed motor vehicles on the roads, motor homes parked in public view, a fence that is ten feet tall (the maximum height is eight feet), high grass and weeds in yards, loose dogs and cats digging in flower beds, trucks with noisy exhaust systems, barking dogs, garage doors left open, trash cans put out too soon before garbage pickup and left out overnight after garbage pickup, yard bags left on the curb by landscapers for "days" before pickup, and children driving 4-wheelers and golf carts. Williams, 981 So.2d at 197.
Noting that the question of whether a duty exists on the part of the homeowner's association to enforce the restrictions and covenants is a question of law, the Second Circuit Court of Appeal found that the plain language of the community documents vested the homeowner's association with the power to enforce the covenants but did not impose a duty on the homeowner's association to legally enforce every violation of the covenants. Rather, the court concluded that the language unambiguously afforded the board of directors for the homeowner's association discretion in enforcing the restrictions and covenants, as the Declarations provided that the homeowner's association "shall have the power to enforce the provisions of the Declaration and Rules and Regulations and shall take such action as the Board deems necessary or desirable to cause compliance ...." Williams, 981 So.2d at 198.
In this case, Article IX, Section 9.01 of the Dedication clearly states that the "responsibility for the maintenance of Improvements is divided between the Association and the Owners." While the "maintenance, repair and replacement of the interior of improvements within an Assessable Unit and payment of the costs therefor is the responsibility of the respective Owner," the "[maintenance, repair and replacement of the exterior of the improvements within an Assessable Unit and the costs thereof[] is the responsibility of the Association." Accordingly, the Dedication puts affirmative duties with respect to the interior and exterior improvements on the owners and the Association, respectively. Moreover, Article VII, Section E of the Bylaws require the Board to administer and enforce the Dedication.
"Improvements" is a defined term within the Dedication, and refers to "all improvements now or hereinafter constructed on the Property."
We do not find that the facts and issues of Williams correspond to the instant case. First, the Williams case involved an owner seeking to force the homeowner's association to enforce violations of the covenants by other owners. Second, the declaration at issue in Williams stated that the Board "shall have the power to enforce" - not the responsibility to enforce - and further expressly provided that the Board shall take such action as it "deems necessary or desirable" to cause compliance. Williams, 981 So.2d at 198.
Here, Mr. Caronna seeks to force the Association to perform its duties set forth in the community documents. More importantly, the terms of the Dedication and the Bylaws herein impose the affirmative duty to maintain, repair, and replace the exteriors of the units on the Association. The Board, which governs the Association, "shall administer and enforce" the Dedication. Bylaws, Article VII, Sec. E. The Association and the Board have both the power and the duty to maintain, repair, and replace the exteriors of the units on the Association.
Nevertheless, we agree with the trial court's conclusion that Mr. Caronna is not entitled to demand specific performance. Pursuant to Article V, Section 5.10 of the Dedication, the Association "shall not be obligated in any fiscal year to spend all sums collected ... and may allocate such funds to any reserves for repairs or replacement of the Property or carry such surplus forward into succeeding fiscal years." Hence, the Association has some discretion in determining when and how much money to spend on its obligations and responsibilities. Therefore, we do not find error in the trial court's denial of Mr. Caronna's claim for specific performance.
Notwithstanding this discretion, the Association still has the affirmative duty to maintain, repair, and replace the exteriors of the units pursuant to the community documents. The Dedication, in Article IX, Section 9.01, imposes an affirmative duty to act on the Association while giving it the discretion, in Article V, Section 5.10, to determine how and when to spend funds. Reading these provisions together, as we must, we conclude that the Dedication imposes a duty on the Association to repair and maintain the exterior while affording it the discretion to determine how - not whether - to fulfill this duty. See La. Civ. Code art. 2050 (Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.) If the Association breached this duty and the breach resulted in damages, the Association can be found liable for the damages occasioned by it.
While the community documents are silent with respect to remedies available to Mr. Caronna for the Association's breaches, the Homeowners Association Act, specifically, La. R.S. 9:1141.8, provides a statutory basis for an award of damages if the Association breaches an obligation. La. R.S. 9:1141.3 (to the extent the community documents are silent, the provisions of the Homeowners Association Act apply); see Tchefuncte Harbour Townhome Association, Inc. v. Costanza, 2015-0524 (La.App. 1st Cir. 11/6/15), 2015 WL 6842117, at *3 n.3 (unpublished). Moreover, the community documents do not contain any provision prohibiting Mr. Caronna from seeking relief from the Association for the Association's breach of its obligations, and the Association does not cite to any law barring Mr. Caronna's reconventional demand against it.
Certain arguments were made by the Association regarding Article XIII in the Dedication regarding remedies for noncompliance. However, only the noncompliance of an owner is contemplated in these provisions.
We note that the Association argued in its post-trial brief that it had the right to interrupt services, which it contended included maintenance and repairs, if an owner failed to pay dues or assessments, relying upon La. R.S. 9:1123.102(11). However, La. R.S. 9:1123.102 is part of the Louisiana Condominium Act, La. R.S. 9:1121.101, et seq., and is not applicable herein. The Association makes no such argument before this court, and we question the correlation asserted regarding "services" as used in La. R.S. 9:1123.102(11) and maintenance and repair.
Mr. Caronna asserts that the Association breached its duty to maintain, repair, and replace the exterior of his unit and that the breach caused damage to his unit. As acknowledged by Mr. Gagnon at trial, the buildings were "in various states of disrepair" when he became the property manager in October of 2016, but he was instructed by the Board that the only exterior maintenance the Association would be addressing was the roofs. Since that time, the exterior maintenance has expanded to include gutters and soffits.
Mr. Caronna's testimony established that not long after he purchased his unit, he noticed stains on his ceiling and reached out to the property manager at the time, Rodney Durst, providing photographs and informing him of the problems. Later, Mr. Caronna's ceilings began showing signs of leaking with Sheetrock falling down and signs of mold. The walls were noticeably separating from the ceilings all the way to the third floor. In fact, the leaks appeared to originate from the dormers, and the water would seep into the floors underneath.
While the Association caused the shingles to be replaced on the roof, no work was done to address any of the rotten wood around the dormers or on the roofline and none of the flashing was replaced. According to Mr. Caronna, he had streams of water coming into his unit within days of the installation of the new shingles in such a capacity that he needed large containers to catch the water.
Mr. Caronna's account of this incident was corroborated by the testimony of Stacey Shearman, a handyman by trade, who lived in the unit next to Mr. Caronna's. Mr. Caronna called Mr. Shearman on the day of the incident because of a large belly in the ceiling in one of the bedrooms where "water was coming through profusely." Mr. Shearman recalled the incident and stated that "[t]he roof had just been put on, I know that for a fact, because I was there." According to Mr. Shearman, after they cut through and opened the ceiling, they shined a light above, and determined "that water was coming straight through that dormer, pouring through it." While they were unable to do anything that night, Mr. Shearman used his 32-foot ladder the next day to access the dormer and placed felt around the window to stop the leak. The window is still felted.
Mr. Caronna testified that, despite additional complaints to the Association, nothing has been done to stop the leaks, and water is still leaking into his unit. Mr. Caronna further stated as follows:
I can't even put floor down in my house. I did it in my den area because I wanted my daughters and I to have ~ at least a portion of the house to be halfway complete. The rest of my house is entirely sub floors right now because I get water down under the windows into the floors. It ruined all the carpet that was there before. And it all had to be taken out. And depending on what direction the rain is coming from, it might leak in the front of the house, it might leak in the back of the house. It just depends on, you know, what kind of wind force is driving the rain.
And some of the leaks just, you know, leaking ~ you know, seeping out ~ in fact, some of the repair work I did on Sheetrock in my daughter's room is starting to have cracks and water intrusion again because that felt only lasts so long up there. I try to get up and change it every so often, but the wind and rain tear it up.
You can see [the water], if not dripping and coming through ceiling ~ portions of the ceiling and wetting the Sheetrock and bellying it, you can look on the floors, and any of these areas where a lot of that flashing was, it would come down the walls, the windows. It would come down the walls into the floor and on top of the floor, which also got in between there and the floor below, and started getting the ceilings, getting into the ceilings.
All the tape is coming off, all the seams of Sheetrock that were affected by any of this. The floors are rotten around the edges under all of these windows. I'm not saying totally rotten. Some of it may be salvageable, I don't know, I'm not a contractor, but I can't put carpet down or flooring down if I have water continuing to come out onto my floors when it rains.
When asked if he has had any success in reducing the amount of water coming into his home, Mr. Caronna stated:
Not only ~ the only thing I've had success on is killing that one major leak on that back dormer by felting it. The other leaks are just so sporadic in different areas, it just depends on which way the water is coming from.
And these are not something I can really stop from leaking. They gooped, I don't know what they called it, but on the flashings around the edges of the roof where it meets the bricks and the chimneys and everywhere else, they didn't change that. They are spread out about that far from the wall and there is this round goopy - I don't know even what they call it, silicone, I don't know what it is, they gooped that everywhere in any kind of cracks they saw. Didn't remove, replace any of that, didn't get into the wood at all, no.
Numerous photographs were introduced into evidence and were described by Mr. Caronna. The photographs showed the condition of the unit when Mr. Caronna moved in, the damage to the interior of his unit at the time of the dormer incident right after the roof was replaced; the continued water damage and effects thereof; and the state of disrepair of the exterior of the unit. In particular, some the photographs, which were taken within a month before trial, showed rotten wood, rotten siding and windows; chunks of wood missing; deteriorated flashing around the dormers, the chimney, and the roof line; and separations between the window sills and the bricks.
According to Mr. Caronna, he was told by the Association that they were going to do the work Northlake Roofing, L.L.C. estimated, which included the replacement of the roof, dormers, metal flashing, dormer windows and ridge vents. Shortly thereafter, the shingles were replaced on the roof, but the rotten wood, windows, and flashing were untouched. Mr. Caronna was informed later by a member of the Board that the Association did not cover dormers anymore.
In fact, Mr. Gagnon testified that in October of 2016 he and the Board had a difference of opinion as to the purview of the Association's responsibilities. Based on his experience with the Association ten years earlier and his reading the community documents (he was not aware of any amendments to the documents), Mr. Gagnon understood that "all of the exterior of the building is the responsibility of the [Association." However, the Board took the position that the Association's responsibility was limited to the roofs.
The plain language of the community documents does not limit the Association's responsibility to only the roof. As stated previously, the "[maintenance, repair and replacement of the exterior of the improvements within an Assessable Unit and the costs thereof[] is the responsibility of the Association," and the Bylaws require the Board to administer and enforce the Dedication. Despite its obligations, the Association has failed to reasonably maintain, repair, and/or replace the exterior of the improvements on Mr. Caronna's unit. While the roof was replaced, the undisputed testimony of Mr. Caronna and Mr. Shearman established that the water leaks continued, with greater impact, after its replacement and that the dormers were severely compromised and in need of maintenance, repair, and replacement. Other than arranging for workmen to reattach loose gutters and replace or repair various soffits throughout Port Louis, no evidence was presented regarding the Association's efforts to meet its obligations with respect to the exterior of the buildings. Additionally, the undisputed evidence showed that damages were sustained to Mr. Caronna's unit as a result of water intrusion through the compromised exterior of the building.
We note that the workers were unable to perform this work on Mr. Caronna's unit. According to Mr. Caronna, the workmen showed up with a ladder, and he inquired as to what they were doing. After speaking with the workmen and seeing the work they did on the neighboring unit, he agreed that they could perform the work on his unit. However, by the time he agreed, it was too late in the day for the workmen to start on his unit.
Having established that the Association has the affirmative duty to maintain, repair, and replace the exterior of the improvements and bears the costs thereof; that the Association breached this duty; and that the Association's breach caused actual property damage to Mr. Caronna, we find that the trial court erred in dismissing Mr. Caronna's claim for damages against the Association. See Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La. 3/10/06), 923 So.2d 627, 633. Finding that the trial court erred in dismissing the claim for damages, we review the facts de novo from the record and render a judgment on the merits. See LeBlanc v. Stevenson, 2000-0157 (La. 10/17/00), 770 So.2d 766, 770.
When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage. Coleman v. Victor, 326 So.2d 344, 346 (La. 1976). Generally, when a person sustains property damage due to the fault of another, he is entitled to recover the cost of restoration that has been or may be reasonably incurred, or he may elect to recover damages based upon the difference between the value of the property before and after the harm. Blake v. City of Port Allen, 2014-0528 (La.App. 1st Cir. 11/20/14), 167 So.3d 781, 790.
At trial, evidence and testimony was submitted regarding the amount of Mr. Carolina's damages. Mr. Shearman provided two estimates for repairing and restoring the interior of Mr. Caronna's unit and testified as to their contents. The total cost for providing the interior repairs to the ceilings and walls throughout the unit was $17,250.00. Mr. Shearman testified that these were conservative estimates, as the leaks would need to be fixed and an inspection for mold would need to be done. The total cost for replacing the carpet with contractor-grade carpet was $9,380.83. The Association did not present any evidence to contradict the amount of damages submitted by Mr. Caronna. Accordingly, the total amount of damages established by Mr. Caronna at trial was $26,630.83, which we find is reasonable under the circumstances.
CONCLUSION
Based upon the forgoing, we amend the March 18, 2021 judgment to correctly identify plaintiff and defendant-in reconvention as Port Louis Owners Association, Inc. We affirm, as amended, that portion of the judgment granting Port Louis Owners Association, Inc.'s Petition to Enforce Privilege and Suit on Open Account; ordering Mr. Caronna to pay Port Louis Owners Association, Inc. $29,674.00 plus annual interest at 18%; and ordering Mr. Caronna to pay Port Louis Owners Association, Inc. $5,921.07 in attorney fees. Additionally, we reverse, in part, the trial court's dismissal of Mr. Caronna's reconventional demand with prejudice. We hereby grant Mr. Caronna's reconventional demand as to the claim for damages and award Mr. Caronna damages in the amount of $26,630.83, plus legal interest. However, we affirm that portion of the trial court's judgment dismissing Mr. Caronna's reconventional demand seeking specific performance. Each party is ordered to bear its own costs associated with this appeal.
AMENDED AND AFFIRMED AS AMENDED IN PART; REVERSED AND RENDERED IN PART.