HARBOR CROSSING HOMEOWNERS ASSOCIATION INC v. NIQUIPORO (2025)

In this suit by plaintiff, Harbor Crossing Homeowners’ Association, Inc. (“the Association”), against defendant, John Allen Niquiporo, the Association seeks a declaratory judgment and injunctive relief related to alleged violations by Niquiporo of the Declaration of Protective Covenants and Restrictions enacted by the Association. In response to the Association's claims, Niquiporo filed an exception raising the objection of prescription. The Association now appeals the trial court's August 29, 2024 judgment granting the exception and dismissing its claims with prejudice. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Niquiporo is the owner of property in Harbor Crossing Subdivision located in Prairieville, Louisiana and, as such, is a member of the Association. On March 14, 2024, the Association filed a petition for declaratory judgment and injunctive relief against Niquiporo to enforce a building restriction that prohibits the construction of a fence that “exceeds the height of six (6’) feet on the front facing fence to the street and symmetric/level to match the front height around the sides and back.” The Association asserted that on or about June 30, 2022, Niquiporo began installing a fence that exceeded the height requirements, noting that the fence was at least eight-feet high.¹ The Association further noted that its Architectural Control Committee (“ACC”) was established “to assure that the installation, construction or alteration of any Structure on any Lot is submitted to the [ACC] for approval” prior to any action on the property. Moreover, the Association alleged: “[n]o fence shall be erected, constructed, placed on or permitted to remain on any Lot ․ unless plans and specifications therefor shall have been first submitted to and approved in writing by the [ACC].”

Pursuant to the petition, the trial court issued a temporary restraining order (“TRO”) prohibiting Niquiporo from having a fence that exceeded the height restrictions as detailed in the Association's governing documents. In response to the petition, Niquiporo filed an exception raising the objection of prescription, arguing that the Association's claims were time barred by the prescriptive periods set forth in La. Civ. Code art. 781. Article 781 provides as follows:

No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. A violation is noticeable when an apparent activity has occurred on the immovable in violation of the building restriction. The recordation of an instrument that provides for a violation of the building restriction does not constitute a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.

Niquiporo asserted that he began installing the fence in February 2022 and that the Association knew of his fence project at that time. Thus, Niquiporo maintained that the Association's suit for declaratory and injunctive relief, filed in March 2024, was prescribed pursuant to the provisions of Article 781 as it was filed more than two years after the commencement of a noticeable violation of the building restriction. The trial court held a hearing on July 22, 2024. Subsequently, on August 29, 2024, the trial court signed a judgment sustaining the exception and dismissing, with prejudice, the Association's claims. This appeal by the Association follows. The central issue for our review is whether the Association's claim is prescribed pursuant to Article 781.

DISCUSSION

The objection of prescription is raised by the peremptory exception. La. Code Civ. P. art. 927(A)(1). A party urging an exception raising the objection of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face. Dunn v. City of Baton Rouge, 2007-1169 (La. App. 1 Cir. 2/8/08), 984 So.2d 129, 130. Louisiana Code of Civil Procedure article 931 provides that at the trial of a peremptory exception raising the objection of prescription, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” In the absence of evidence, the exception must be decided on the facts alleged in the petition, which are accepted as true. Bailey v. Loewe, 2019-0915 (La. App. 1 Cir. 8/3/20), 310 So.3d 746, 748.

Appellate review of a judgment ruling on an exception raising the objection of prescription depends on the manner in which the exception is heard. Alliance Hospitality, L.L.C. v. Esquivel, 2020-0807 (La. App. 1 Cir. 2/24/21), 322 So.3d 253, 255. When evidence is introduced at the hearing, the trial court's findings are reviewed under a manifest error standard of review. Childers v. Laurel Lakes Estates Homeowners Association, Inc., 2023-0023 (La. App. 1 Cir. 11/30/23), 380 So.3d 46, 50. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. And Development, 617 So.2d 880, 882 (La. 1993). The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La. 4/3/02), 816 So.2d 270, 279.

That said, when one or more legal errors interdict the trial court's fact-finding process, the manifest error standard no longer applies. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735. Instead, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Id. “A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.” Id. (citation omitted).

The Association argues on appeal that the trial court committed legal error in its determination that the “two-year prescriptive period begins to run upon the commission of a violation” rather than upon the commencement of a noticeable violation as set forth in Article 781. We agree. Consequently, our review of the trial court's judgment granting Niquiporo's exception raising the objection of prescription is subject to de novo review. With these principles in mind, we consider the record before us.

For the purpose of Article 781’s two-year prescriptive period, some activity that is noticeable and apparent must occur on the lot, and at that point, the prescriptive period commences. See Investment Management Services, Inc. v. Village of Folsom, 2000-0832 (La. App. 1 Cir. 5/11/01), 808 So.2d 597, 604. Moreover, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Harrell-Bijou v. Guarino, 2023-0425 (La. App. 1 Cir. 11/16/23), 379 So.3d 698, 704 (citing Bailey v. Khoury, 2004-0620 (La. 1/20/05), 891 So.2d 1268, 1275).

Because the petition in this case was not prescribed on its face, Niquiporo bore the burden of proving facts sufficient to support his exception. In support of his argument that the Association's claim was prescribed, Niquiporo submitted his affidavit along with several emails. According to Niquiporo's affidavit, on January 18, 2018, he received written approval to start construction on his fence at his “soonest convenience.” He attached an email from Ashley Alford, the manager of Pelican Association Management, who according to Niquiporo, was the Association's management company at the time. The January 18, 2018 email to Niquiporo provided, “Please let this email serve as your written letter of approval for your fence ACC request. You are free to start construction at your soonest convenience.” However, in what appears to be a subsequent email to Niquiporo, Ms. Alford apologizes for the inconvenience stating, “it seems as if we did not have full board approval before sending you the written approval. We are now waiting on one more approval as a few questions have surfaced. Please be patience [sic] with us during this time and I will be in communication with you shortly.”²

Niquiporo further attested that he began construction on his fence in February 2022. In support of his timeline, Niquiporo attached two emails from Tammy Hyatt, the HOA Property Manager of Platinum Real Estate Services, who according to Niquiporo, was the Association's management company at the time. In a February 14, 2022 email to Niquiporo, Ms. Hyatt relayed the following:

Good Afternoon Mr. Niquiporo. It has been brought to our attention that you have what appears to be a staging area in your front yard for wooden fencing installation. I do have an approved ACC Request on file for you if these materials are intended for use at your home. Or, is this perhaps a project that you are working on for a customer with your lawn maintenance business?

Included in the email was a photograph of the front of Niquiporo's residence showing fence boards leaning against what appears to be a work trailer.

In a second email to Niquiporo dated February 18, 2022, Ms. Hyatt directed Niquiporo's attention to four more photographs of his property that had been taken during the week.³ Niquiporo argued that the second photograph in this email showed that the fence posts on the right side of his house were erected prior to February 18, 2022.⁴ Thus, Niquiporo alleged, for the purposes of Article 781, the latest date that an action to enforce the restriction could have been timely brought was February 14, 2024.

At the July 22, 2024 hearing, the trial court heard arguments from the parties, and Niquiporo introduced evidence into the record. At the conclusion of the hearing, the trial court took the matter under advisement and requested proposed reasons for judgment from both parties. The record reflects that Niquiporo submitted proposed reasons for judgment as requested, which were later adopted by the trial court as its own.⁵ However, on August 2, 2024, the Association submitted a “Post Hearing Memorandum In Opposition To Peremptory Exception of Prescription” along with attached exhibits.⁶ In response thereto, Niquiporo filed a motion to strike and objection to the memo and exhibits, arguing the memorandum was untimely and the exhibits were unverified. Although there is no signed judgment in the record concerning this motion, the minutes from October 28, 2024, reflect that the motion was granted in open court.

The trial court signed a judgment on August 29, 2024, sustaining Niquiporo's exception and dismissing, with prejudice, the Association's claims. In written reasons for judgment signed by the trial court on August 2, 2024, the trial court noted there was “unopposed evidence that construction of the fence at issue began in February of 2022,” adding that Niquiporo's fence posts were erected prior to February 18, 2022. The trial court concluded that the restrictions relative to fences on the property terminated on February 18, 2024, and thus, the petition filed on March 14, 2024, was barred.

On appeal, the Association argues that the construction of the fence itself is not the violation; rather, it is the height of the fence that is the violation. The Association asserts that it was not until June 30, 2022, that the Association's management team first noticed Niquiporo's fence exceeded the height requirements allowed by the Association's restrictions. The Association contends that Niquiporo failed to produce any evidence of actual commencement of the construction of the nonconforming fence and that the emails submitted by Niquiporo are confusing and misleading. Based on our review of the record, and taking into consideration all of the evidence submitted into evidence at the July 22, 2024 hearing, we agree with the Association and find that Niquiporo did not carry his burden of proving that the Association's claim was prescribed.

Niquiporo's argument below and on appeal is that the evidence supports his position that he began construction of the fence in question in February 2022 and, thus, the Association's petition, filed on March 14, 2024, was prescribed. Niquiporo argues that he received written approval for his fence ACC request on January 18, 2018. Initially we note that even if we agreed, for the sake of argument, that Niquiporo's fence ACC request had been approved as indicated in the January 18, 2018 email, based on what is in the record, this approval could only have been for the construction of a fence as permitted by the ACC, not an eight-foot fence.

According to the record, plans and specifications for any fence constructed in Harbor Crossing Subdivision must be submitted to and approved in writing by the ACC. Moreover, the Association's restrictions specifically provide:

Such plans and specifications shall be of such form and shall contain such information as may be reasonably required by the [ACC] ․ including but not limited to:

․

(ii) Written specifications indicating the design and style of the fence, height of the fence, materials used to construct the fence (including size and type of posts, and other structural members), footings and foundation for fence if required.

(iii) Photographs and/ or a sketch showing a typical ten (10’) foot section of the proposed fence.

We note that although there is no evidence in the record of Niquiporo submitting the required plans and specifications to the ACC for approval, we conclude that any ACC approval received by Niquiporo for a fence must have been pursuant to plans and specifications submitted in compliance with the Association's restrictions, i.e., a fence not to exceed the height of six feet.

In support of his argument that he began construction of his fence in February 2022 and that the Association was aware of the fence at that time, Niquiporo points to the two emails he received in February 2022 and the photographs attached to said emails. As previously discussed, Niquiporo received an email on February 14, 2022, from the Association's management company regarding what appeared to be a “staging area in [his] front yard for wooden fencing installation.” In the email, Ms. Hyatt advised Niquiporo of an “approved ACC Request” on file if the materials were intended for use at his home, but inquired further if the materials might be intended for a project related to his lawn maintenance business. However, the picture attached to this email simply shows materials in front of Niquiporo's home. There is no evidence shown in the photograph that construction of the fence had actually begun.

Niquiporo maintains that photographic evidence attached to the subsequent February 18, 2022 email, specifically the second photograph, supports his position that fence posts were erected on the right side of his house prior to February 18, 2022. However, we have reviewed the photographs attached to the February 18, 2022 email and find no evidence of the fence posts referred to by Niquiporo. Rather, as argued by the Association in brief to this court, the photographs seem to “depict numerous other violations” attributable to Niquiporo. We note further that regardless of our finding on the issue of the insufficiency of the photographic evidence, the installation of the fence posts alone would not constitute a noticeable violation under Article 781. Until the fence is erected and the height is known, there is no noticeable violation, and the two-year prescriptive period does not begin to run.

Accordingly, we reverse the trial court's judgment sustaining Niquiporo's peremptory exception raising the objection of prescription because the record does not contain sufficient evidence submitted by Niquiporo to carry his burden of proving that the Association's claim was prescribed.

DECREE

For the above and foregoing reasons, we reverse the trial court's August 29, 2024 judgment and remand the matter to the trial court. All costs associated with this appeal are assessed against defendant, John Allen Niquiporo.

REVERSED AND REMANDED.

FOOTNOTES

1.   In addition to the fence violation, the Association alleged that Niquiporo had been in habitual noncompliance with other Association restrictions by leaving unpermitted items in his driveway and viewable from the street.

2.   While there is no clear information in the record to indicate when this subsequent email was sent, based on the context of both the original January 18, 2018 email and this email, it would appear that it was sent after the January 18, 2018 email.

3.   We note that one of the four photographs is a copy of the same photograph that was attached to the February 14, 2022 email.

4.   We note that in his memorandum in support of his exception raising the objection or prescription, Niquiporo erroneously referred to this date as February 18, 2024. As is discussed further herein, the date referenced is immaterial.

5.   The best practice is for the trial judge to author for himself any reasons, including factual findings and legal conclusions. This approach gives the reviewing court the benefit of his thoughts and insights into the matter under consideration. Preparation of a judgment comprised of the stark, final determinations of a case is quite different from the presentation of a party's factual findings and legal conclusions as the inner thoughts of the judge. Thus, this court does not place any real value on the written reasons drafted entirely by counsel for one party. See King v. Allen Court Apartments II, 2015-0858 (La. App. 1 Cir. 12/23/15), 185 So.3d 835, 839, writ denied, 2016-0148 (La. 3/14/16), 189 So.3d 1069.

6.   Although not in the record, it appears that on July 12, 2024, the Association had previously filed a memorandum in opposition to Niquiporo's exception.

LANIER, J.

McClendon, C.J., concurs in the result reached by the majority.