JOSEPH DEJEAN JR v. HOMER MILLER JR DANETTE MARIE MILLER (2025)

Plaintiff, Joseph Dejean, Jr., appeals the April 19, 2024, judgment maintaining an exception of prescription in favor of the defendants, Homer L. Miller and Danette Marie Miller. For the reasons that follow, we affirm the judgment.

FACTS AND PROCEDURAL POSTURE

Mr. Dejean owns lot 9 of the Royal Oaks Estates Subdivision, Phase II, in Sabine Parish. The Millers own lot 10. Lots in the subdivision are encumbered with restrictive covenants, reproduced in pertinent part below:

PROPERTY DESCRIPTION

Lots 5 through 16 of Royal Oaks Estates, Phase Two, a subdivision located in Sections 14, 15, and 22 of Township 6 North, Range 13 West, Sabine Parish, Louisiana.

1. LAND USE AND BUILDING TYPES: Each lot shall be used for residential purposes only and only one single family residence shall be erected on each lot. No lot may be subdivided into a smaller plot, except an owner may acquire a portion of another lot which adjoins his lot, but the minimum size of which a residence may be built shall be fifteen thousand (15,000) square feet.

2. DWELLINGS: All site built residences shall be of new construction.

3. DWELLING SIZE: Any residence erected or moved onto Lots 5 through 16, shall have a minimum floor area (heated and cooled) of ONE THOUSAND (1,000) square feet, exclusive of porches, stoops, open or closed carports, patios and garages. No residence shall have a carport or garage for more than three cars.

4. MOBILE HOMES: Mobile homes or manufactured homes are allowed as residences provided they meet the following conditions:

(a) The manufacturer's certificate of origin shall have a date showing that the mobile home or manufactured home was built within forty eight (48) months of the date the owner purchased the lot(s) in this subdivision;

(b)When the manufactured home or mobile home is placed on the subdivision lot, it shall be completely, adequately and neatly skirted with materials matching said home with the axles and tongue removed within Ninety (90) days.

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8. TEMPORARY STRUCTURES: No structure of a temporary character, tent, shack, garage, barn or other building shall be used on any lot at any time as a residence, either temporarily or permanently.

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15. DRIVEWAYS: Any and all driveways constructed shall be constructed with the same or better materials as the street that provides access to the subdivision lots.

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19. MOTOR VEHICLES: Only registered and drivable motor vehicles may be kept on any lot and said motor vehicles shall be parked on the driveway or in the garage. Motor vehicles shall not be parked on any street over night or on a regular basis.

The restrictions granted owners the right to enforce the restrictions. The building restrictions also contain a severability clause.

On January 4, 2024, Mr. Dejean filed a petition seeking injunctive relief and damages from the Millers because they allegedly violated the restrictive covenants by locating several vehicles, including commercial vehicles, on the property; using the property for business purposes; and erecting sheds on the property. Also, Mr. Dejean alleged that the Millers erected a fence that interfered with his servitude of view of the lake. The petition prayed for injunctive relief and damages.

The trial court denied a temporary restraining order and fixed a January 16, 2024, hearing date on Mr. Dejean's motion for a preliminary injunction. That hearing was continued by the trial court until January 18 due to inclement weather.

Mr. Dejean testified that he purchased lot 9 in June 2017. The Millers erected a six-foot privacy fence around their lot in 2020 that interrupted his view of the lake. They also placed a shed on the property. The Millers’ home is a 1,200 square foot metal building on lot 10. A thirty to thirty-five-foot RV is parked beneath a carport on the property. They have their personal vehicles, a pontoon boat, dumpsters, tractors, mowers, a golf cart, and a trailer parked on the lot.

Mr. Dejean identified photographs he took of the Millers’ lot. The photographs he introduced depict several alleged violations. In one, the “shop” the Millers built is depicted as a metal-sided building with a pitched gable roof. The pitch of the roof shallows to create a wide overhang, which Mr. Miller referred to as the “lean-to,” supported by four columns, which could be taken as creating three parking bays. Beneath this overhang is parked a camper, occupying all of one “bay” and part of a second, and a car or SUV. From the vantage point of the “shop,” the RV is parked to the left and sits in the open. The RV and camper bear distinctive paint schemes that readily distinguish them from each other. Another photo depicts the Kubota tractor, some implements, and the 8x8 shed. In yet another photo, the camper had been moved from beneath the shop overhang and replaced by the RV. Other photos depict the tractor on a trailer hitched to a three-quarter-ton or greater pickup; and a second, sided trailer unhitched and parked off the driveway. One photo introduced by Mr. Dejean is of particular interest, as it depicts the pontoon boat and tractor and bears an April 7, 2020, date stamp.

Mr. Miller testified that Mr. Dejean's property never had a very good view of the lake because of brush and trees that pre-existed the Millers’ purchase of their property, and the Millers have obtained a permit to construct a home, which will further impede his view. The tractor is used on Mr. Miller's deer hunting lease. The building Mr. Dejean referred to as the Millers’ residence is an 1,800-square-foot shop. The RV stays under a lean-to attached to the shop. The Millers have trailers on the lot because they recently sold their home in Many and store their belongings in them. Also, Mrs. Miller's mother had recently passed away, and her possessions are stored there as well. The plan is to build a permanent home, for which the Millers have obtained a building permit.

Other equipment is kept on the Millers’ lot to facilitate Mr. Miller's business as a commercial contractor.

The Millers built the privacy fence because, at the time, Mr. Dejean had a large mound of earth in his backyard from which grass and even trees were growing. That mound was there for about three years. There are piles of bricks on Mr. Dejean's property. Mr. Miller testified that Mr. Dejean cuts his grass “maybe twice a year.” Mr. Miller also indicated that Mr. Dejean has a trailer parked on his lot beneath a tarp.

The Millers sold their home in Many about two years before the hearing. They obtained a building permit on July 17, 2023. No contractor has been chosen to build the home. A separate building permit was obtained for an auxiliary building, the 1,800 square-foot shop, on the same day. However, construction on that shop had begun “a couple of years ago, maybe․” The shop has not been finished. The Millers began moving their belongings there about six months before the January 2024 hearing.

The Millers live in the RV. Before moving to the lot, the Millers would tow a camper to the lot on weekends. They then obtained the RV and began living in it with the intent of building their home. CLECO ran electrical utilities to the lot in 2021 to power the camper. A second electrical line has been run to power the shop.

Mr. Miller acknowledged receiving the building restrictions when he closed on his lot. He has not built a permanent home there. He denied living in the shop, which primarily serves as a storage space.

Mr. Miller disputed that living in his RV violates paragraph 8 of the building restrictions, which prohibits using temporary structures as a residence. Counsel for Mr. Dejean asked Mr. Miller to identify a number of vehicles and trailers depicted in the photographs entered into evidence. He admitted owning a tractor he keeps on the property, a pontoon boat, a trailer used for “moving, in particular.” A relative has parked a camper on the property, which is not being used as a residence. Mr. Miller also testified that he has “a little 8x8 building that is for fishing equipment.”

Mrs. Miller did not testify. In her closing argument, however, she represented to the trial court that she and her husband had only been living in the RV “for about a year․” after they sold their brick home following her mother's death. She, too, maintained that nothing in the building restrictions prohibits them from living in the RV.

The trial court issued oral reasons finding that there were temporary structures on the property in violation of the building restrictions. The trial court found that one such temporary structure was the RV, the use of which as a residence violated paragraphs 1, 2, 3, 4, and 8. The parking of vehicles not on the driveway violated paragraphs 15 and, potentially, 19. The preliminary injunction was granted and the Millers given sixty days to cease using the RV as a residence. Any other residence they used in the Royal Oaks Subdivision had to comply with the building restrictions. The camper and RV had to be removed from the lot. Only registered and drivable vehicles were allowed on the lot and must be parked in either a garage or the driveway. Relief regarding the privacy fence and Mr. Dejean's servitude of view was denied on the grounds that he failed to carry his burden of proof.

The Millers enrolled counsel of record on January 26, 2024. Their attorney answered the petition on January 30, asserting an exception of no cause of action based upon the action being perempted by operation of La.Civ.Code art. 781. The answer denied the other allegations of Mr. Dejean's petition.

On February 1, 2024, the Millers filed a peremptory exception of prescription. This exception asserted that the Millers began residing in the RV in October 2021; that the 8x8 building had been present on the property since September 2021; that the Kubota tractor and pontoon boat had been kept on the property since August 2021, and the camper had been present on the property since September 2021.

In support of their exception, the Millers attached their own affidavits, to which were attached photographs purporting to have been taken in 2021 depicting the property. They also annexed the affidavit of Christopher C. Robin, the owner of lot 11 of Royal Oaks. Mr. Robin's affidavit attested that he “has personally observed and viewed Homer and Danette Miller living in their recreational vehicle and/or camper on their property․ as a full-time residence beginning in October 2021 through the present date.” Mr. Robin also attested that the 8x8 portable building had been located on the Miller's lots since he purchased his property in July 2020.

The exception came for hearing on April 8, 2024. At that time the parties entered into stipulations, to wit: were Mr. Dejean to testify, his testimony would be the same as he gave during the hearing on the preliminary injunction; that all testimony and exhibits introduced at the hearing on the preliminary injunction be given judicial notice; and that the affidavits of the Millers, with attachments, be admitted into evidence. The court took the matter under advisement.

The photographs introduced by the Millers show the RV parked on the lot, parked behind the camper. The camper's awning is extended, and individuals are cooking outside. This photograph is dated December 4, 2021. A second photo shows the RV parked and someone appears to be extending the awning on it. A light-colored SUV is parked behind it. That photo is dated December 30, 2021. The third photo shows the camper parked with the SUV parked to its left. The date stamp on this photo is September 27, 2021. The fourth and final photo introduced by the Millers is dated September 28, 2021, and shows construction work being done on the property. The camper rests in the background to the left and the 8x8 shed to the right.

By judgment dated April 19, 2024, the trial court maintained the Millers’ exceptions, dissolved the preliminary injunction granted against them, and dismissed Mr. Dejean's demands with prejudice.

This appeal followed. Mr. Dejean asserts that the trial court erred in maintaining the exception of prescription.

ANALYSIS

The nature of building restrictions

Building restrictions are governed by La.Civ.Code arts. 775–783. “Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.” La.Civ.Code art. 775. Building restrictions are incorporeal immovables and real rights are subject to the rules governing predial servitudes to the extent that those rules are “compatible with the nature of building restrictions.” La.Civ.Code art. 777. As real rights, building restrictions attach to the land. Salerno v. DeLucca, 211 La. 659, 30 So.2d 678 (1947). Mandatory and prohibitive relief may be sought to enforce building restrictions. La.Civ.Code art. 779. However, actions for injunctive relief to enforce building restrictions are perempted ¹ after two years from the commencement of a “noticeable violation,” which is defined as apparent activity on the immovable in violation of the building restrictions. La.Civ.Code art. 781. After the lapse of the peremptive period, the immovable is “freed of the restriction that has been violated.” Id. The peremption as to any particular building restriction does not free the land of all restrictions. Id.; Webb, 671 So.2d 1120.

“Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable.” La.Civ.Code art. 783.

The party asserting that an action for enforcement of building restrictions is perempted bears the burden of proving noticeable violations more than two years prior to the commencement of the action as to each violation for which enforcement is sought unless the action is perempted on its face. Perry v. Rhodes, 20-109 (La.App. 3 Cir. 9/30/20), 304 So.3d 1036.

Standard of review

When no evidence is introduced at a hearing on an exception, the court of appeal reviews the matter de novo. Hebert's Holdings, L.L.C. v. State Farm Fire and Cas. Co., 21-196 (La.App. 3 Cir. 10/20/21), 329 So.3d 901, writ denied, 21-1729 (La. 1/19/22), 331 So.3d 331. Conversely, when evidence is introduced, the court of appeal must defer to the trial court's findings of fact and may not reverse it absent manifest error. Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065.

In the present matter, evidence was introduced, both at the hearing on the exception itself and, by reference, at the hearing on the motion for a preliminary injunction. Therefore, we must review the matter under the manifest error standard. Under the manifest error standard, question for the reviewing court is not whether the trial court was right or wrong but rather whether its conclusions were reasonable. Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880 (LA.1993).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However,

Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.

Id. at 844-45. Absent such internal inconsistencies or implausible stories, however, the trial court's decision to credit one witness's testimony over another “can virtually never be manifestly erroneous or clearly wrong.” Id. at 845.

The manifest error standard also governs the trial court's finding of a noticeable violation of a building restriction for over two years. Aucoin v. Copper Meadows Homeowners Ass'n, Inc., 18-811 (La.App. 3 Cir. 4/3/19), 269 So.3d 859.

Application

In Perry, 304 So.3d 1036, the plaintiff sought to enjoin the defendants’ use of property–which was subject to building restrictions that limited the land to use for single-family residential purposes–for hay cultivation. The defendants had cut and baled hay on five occasions over the course of 2013 to 2016. Then, in May 2016, the defendants fenced the property and began grazing livestock on it. In April 2018, plaintiffs sought injunctive relief for defendants’ violation of the building restrictions. The defendants filed an exception of prescription, asserting that their hay cultivation activities commenced a noticeable violation of the building restrictions, triggering the peremptive period. The trial court disagreed and granted a motion for partial summary judgment the plaintiffs had filed.

On appeal, this court affirmed the summary judgment. The hay baling operations involved brief periods, followed by extensive interludes of inactivity. “There was no constant reminder or noticeability of the violation's transpiration. After these brief periods, the noticeability of the single, particular hay baling violation ceased, and La.Civ.Code art. 781 was no longer applicable as the previous violation was no longer ‘noticeable.’ ” Id. at 1040. This contrasted with the fencing of the property: a violation that “remains noticeable at its outset and for the duration of its existence[.]” Id.

In Aucoin, 269 So.3d 859, homeowners, a husband and wife, sued their neighborhood's homeowners’ association in 2017 for injunctive relief to have their property declared free of a building restriction prohibiting the parking of trailers in front of their home. The homeowners claimed that a work trailer had been parked in front of their home virtually every evening between 6:00 p.m. and 6:00 a.m. and all day on weekends since 2010. In 2013 and again in 2017, the homeowners’ association attempted to fine the homeowners $25.00 for violating the restriction.

At trial, the parties stipulated to testimony, including two independent witnesses who would state that the homeowners moved into the neighborhood and immediately began parking a work truck with an attached trailer on the street between 6:00 p.m. and 6:00 a.m. and on holidays, weekends, and at random daytime hours. Two members of the homeowners’ association would have testified that they conducted inspections in the neighborhood between 8:00 a.m. and 6:00 p.m., and had they noticed any such violations, they would have informed the board of directors. No violation was noticed before 2017, when five citations were issued.

The homeowners testified to facts consistent with the allegations of their petition. One member of the homeowners’ association testified that he and his children rode their bikes past the homeowners’ address, and he never noticed a trailer parked in front of the house. The husband's brother, who was also his employer, testified that the trailer was taken home every day by the homeowner. Every time the brother visited, he saw the trailer parked in front of the house.

The trial court ruled in favor of the plaintiffs. The homeowners’ association appealed. There was no manifest error in the trial court's ruling that the continual parking of the trailer in front of the home presented a noticeable violation of the building restriction for more than two years.

In the present case, The Millers and Mr. Dejean stipulated to their own testimonies from the hearing on the preliminary injunction and to the affidavits and attachments. Mr. Dejean testified that the shop was what he thought was the Millers’ home.

During the hearing on the preliminary injunction, the Millers were equivocal regarding when they moved into the camper and RV. Every time reference was qualified with “about” or “maybe.” After they produced photographs with time stamps to support their exception, the Millers’ time references assumed a far more definite tone.

We find no internal inconsistencies or implausibility that would warrant disturbing the trial court's findings of fact. Three affidavits support the proposition that the Millers parked the tractor, camper, the pontoon boat, and the RV on the property since at least December 4, 2021. The same date marked the Millers’ occupancy of their RV as a residence. These propositions are supported by the photographs the Millers introduced at the hearing on their exception.

Because we find no manifest error in the trial court's findings of fact, we affirm the trial court ruling maintaining the Millers’ exception of prescription. The trial court's judgment is affirmed. All costs of this appeal are taxed to plaintiff/appellant, Joseph Dejean, Jr.

AFFIRMED.

FOOTNOTES

1.   Webb v. Johnson, 95-1518 (La.App. 3 Cir. 4/3/96), 671 So.2d 1120.

SHANNON J. GREMILLION JUDGE