
    THREE RIVERS COMMONS CONDOMINIUM ASSOCIATION v. Donna GRODNER, et al.
    NO. 2016 CA 0067
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 10, 2017
    
      Donna Grodner Baton Rouge, Louisiana, Attorney for Defendants/Appellants, Donna Grodner, James Hornsby, Troy and Cindy Phillips, Mark and Robin Angeron, Janet Folse, and Kelly Burkenstock
    Barbara Irwin, Timothy Pujol, Gonzales, Louisiana, Attorneys for Plaintiff/Appellee, Three Rivers Commons Owner’s Association, Inc.
    BEFORE: McCLENDON,WELCH, CRAIN, HOLDRIDGE, AND CALLOWAY, JJ.
    
      
      . Hon. Curtis A. Calloway, retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
    
   PER CURIAM

I ¡¡This ⅛ an appeal of a judgment denying an exception of no right of action, issuing a permanent injunction prohibiting the opening of a gate on Three Rivers Island in Livingston Parish, and denying a request for a mandatory injunction ordering the opening of the gate. We reverse the judgment relative to the issuance of the permanent injunction prohibiting opening the gate. In all other respects, the judgment is affirmed.

FACTS

Three Rivers Island is an island located on the south side of the Diversion Canal in Livingston Parish. It is accessible by boat, and vehicular traffic is restricted to golf carts. The condominium regime, Three Rivers Commons, was developed on the western end of the island. East of the condominium development are subdivisions developed in separate filings.

A “foot bridge” over the Petite Amite River, wide enough to accommodate a golf cart, connects the westerly end of the island to a parking lot located in Ascension Parish. Upon crossing the foot bridge from the parking lot to the island, one encounters intersecting concrete pathways. One pathway extends straight ahead from the base of the foot bridge and across the common space for the condominium development. The other pathway curves in a southerly direction, reconnecting with the straight pathway on the easterly end of the condominium development. Gates are located on either end of the straight pathway at the intersections with the curved pathway. This dispute arose after the gate on the easterly end of the straight pathway was welded shut, effectively preventing | .¡anyone from accessing the lots and residences to the east of the condominium development using the straight pathway.

The Board of the incorporated owner’s association for Three Rivers Commons filed this suit, complaining that Donna Grodner, who owns property to the east of the condominium development, entered the condominium development property and attempted to open the welded gate to allow golf cart traffic. The Board sought an injunction to prohibit further attempts at opening the gate.

In response, Grodner and other island property owners (collectively “the TRI owners”) claimed the welded gate blocked a servitude affording them a right of passage over the straight pathway to their properties. The TRI owners requested a mandatory injunction requiring the Board to open the gate and to cease and desist from obstructing access to the servitude of passage.

At the start of the bench trial for the injunctive relief, the TRI owners orally urged an exception of no right of action, arguing the Board owned none of the property at issue and therefore had no standing to sue. Testimony was then presented and evidence was introduced, including numerous plats showing the developments on the island. Thereafter, the trial court issued written reasons adopting the Board’s arguments on all issues and rejecting the TRI owners’ argument that the gate obstructs a servitude of passage that provides them access to their properties using the straight pathway. A judgment was signed denying the ^exception of no right of action and enjoining Grodner and those acting on her behalf from opening the westerly gate. The judgment also denied the relief requested by the TRI owners, specifically the mandatory injunction requiring the opening of the gate. The TRI owners now appeal.

RIGHT OF ACTION

The TRI owners first challenge the trial court’s denial of their exception of no right of action. While an exception is a pleading that must be made in writing, making the oral urging of the exception improper, either the trial or appellate court may, on its own motion, notice that a plaintiff does not have a right of action. See La. Code Civ. Pro., arts. 852 and 927. Consequently, the trial court did not abuse its discretion in addressing the exception, and that ruling is properly before this court for review. See Murrill v. Edwards, 613 So.2d 185, 189 (La. App. 1 Cir. 1992), writ denied, 614 So.2d 65 (La. 1993); see also Perkins v. Carter, 09-673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862, 865; FIA Card Services, N.A. v. Gibson, 43,131 (La. App. 2 Cir. 3/19/08), 978 So.2d 1230, 1235.

The TRI owners contend the Board has no right of action in this matter because it is not an owner of any property at issue. An action can only be brought by a person having a real and actual interest that he asserts. La. Code Civ. Pro. art. 681. The function of an exception of no right of action is to determine whether the plaintiff belongs .to the class of persons to whom the law grants the cause of action asserted in the suit. JP Morgan Chase Bank, N.A. v. Boohaker, 14-0594 (La.App. 1 Cir. 11/20/14), 168 So.3d 421, 426. The exception assumes the petition states a valid cause of action for some person and tests whether the plaintiff has an interest in judicially enforcing the right asserted. The question is simply whether the plaintiff has a right to sue the defendant. Id.

The party raising the exception of no right of action bears the burden of proof. Evidence supporting or controverting an exception of no right of action is Inadmissible; however, in the absence of evidence to the contrary, the averments of fact in the pleadings will be taken as true. Whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Id.

Three Rivers Commons is a condominium regime established under the Louisiana Condominium Act. See La. R.S. 9:1121.101 et seq. Under the Act, portions of the condominium property (units) are subject to individual ownership, while the remainder of the property (the common elements) is owned in indivisión by all unit owners. See La. R.S. 9:1121.103; Davis v. Riverside Court Condominium Ass’n Phase II, Inc., 14-0023 (La.App. 4 Cir. 11/12/14), 154 So.3d 643, 648. The Board is an “association” created pursuant to the Act to manage and regulate the condominium. See La. R.S. 9:1121.103. The Act provides that an association may, subject to the provisions of the condominium declaration, “[ijnstitute ... litigation ... in its own name on behalf of itself or two or more unit owners on matters affecting the condominium.” La. R.S. 9:1123.102(4). The Three Rivers Commons condominium declaration does not restrict the Board from filing suit to protect the condominium’s interests. An injunction prohibiting opening the gate to golf cart traffic across the condominium development’s common space is a matter affecting the condominium. Therefore, the Board is a proper party to seek such relief. The trial court correctly overruled the exception of no right of action,

INJUNCTIVE RELIEF

The remaining issues raised in this appeal concern competing requests for in-junctive relief regarding the gate. Louisiana Constitution Article V, § 8(B) requires that “[a] majority of the judges sitting in a case must concur to render judgment.” We have reached different conclusions regarding the substantive issues raised with regard to what, if any, servitude exists on the island in favor of the TRI owners, and whether the gate obstructs that servitude. However, a ^majority agrees to partially reverse the trial court’s judgment and dissolve the prohibitory injunction, while a different majority agrees to affirm the trial court’s judgment denying the injunctive relief requested by the TRI owners.

CONCLUSION

The trial court’s judgment is reversed in part and the permanent injunction prohibiting Donna Grodner and those acting on her behalf from opening the easterly gate is dissolved. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal are assessed equally between the appellants and the appellees.

AFFIRMED IN PART AND REVERSED IN PART.

Crain, J. agrees in part and dissents in part and assigns reasons.

Holdridge J., agrees in part and concurs in part and assigns reasons.

Welch J. concurs and dissent for reasons assigned by Judge Crain.

Calloway J. agrees in part and dissents in part and assigns reasons.

McClendon, J. agrees in part and concurs in part for reasons assigned by Judge Holdridge.

Appendix A

CRAIN, J.,

agreeing in part and dissenting in part.

hi agree the trial court correctly overruled the exception of no right of action for the reasons set forth in the per curiam opinion. Regarding the requests for injunc-tive relief, I believe the only issue raised is whether an all-purpose predial servitude of access or passage was created in favor of the properties on the island, as claimed by the TRI owners. I find the TRI owners proved the existence of that servitude. Thus, I agree with reversing the trial court’s judgment and dissolving the injunction that prohibited opening the gate. However, I believe the trial court erred in denying a mandatory injunction ordering the gate modified or removed to allow passage across the servitude. Therefore, I disagree with affirming the trial court’s denial of the mandatory injunction.

The TRI owners seek dissolution of the injunction prohibiting Grodner and those acting on her behalf from opening the welded easterly gate, a declaration that the TRI owners have a legal servitude of passage through the condominium development’s common area, and the issuance of a mandatory injunction ordering the removal of the gate. Resolution of these issues requires a determination of whether the welded gate obstructs a servitude of access or passage created for the benefit of the TRI owners through the condominium development’s common space.

Ascension Properties, Inc. developed the island in phases. The first phase involved the subdivision of lots on the western end of the island pursuant to a survey plat titled “Revised Final Plat of Three Rivers Island, First Filing, A Private ^Subdivision,” filed of record in Livingston Parish on December 12, 2003. The first filing plat referenced future filings for developing property east of the first filing development. In September 2006, four of the western-most lots in the first filing development were dedicated to a condominium development, Three Rivers Commons, with the declaration noting that the development was subject to such servitudes as shown in the records of Livingston Parish. The official map and declaration creating Three Rivers Commons specifically references the previously filed first filing plat. The property contiguous to, but east of, the first filing development was subdivided by filing the second survey plat titled “Revised Pinal Plat of Three Rivers Island, Second Filing, A Private Subdivision.”

Both the first and second filing plats delineate a “50’ ALL PURPOSE UTILITY SERVITUDE,” with the given name “THREE RIVERS ISLAND DRIVE.” When one subdivides property by plat- of survey that designates a-right-of-way or servitude of passage and thereafter sells the subdivided tracts by reference to said survey, a servitude of passage is created thereby. Bernard v. Broussard, 538 So.2d 1093, 1094 (La. App. 3 Cir.), writ denied, 542 So.2d 1381 (La. 1989). The deeds of the two condominium development members offered into evidence contain language subjecting those properties to the fifty-foot servitude by referencing the first filing plat. The TRI owners’ deeds also contain language subjecting their properties to ’ the fifty-foot servitude either by referencing the first and second filing plats, or by attaching plats to the' deeds showing the fifty-foot servitude. Thus, these recorded plats and deeds establish the fifty-foot servitude affecting all properties on Three Rivers Island. See Bernard, 538 So.2d at 1094-95.

• The Board acknowledges that the referenced plats show a utility servitude, but counters that a predial servitude of passage in favor of the TRI owners is not created. The use and extent of a predial servitude is regulated by the title creating 13it, and absent such regulation, by the rules in Louisiana Civil Code articles 698 through 774, See La. Civ. Code art. 697; Dupont v. Hebert, 06-2334 (La.App. 1 Cir. 2/20/08), 984 So.2d 800, 807, unit denied, 08-0640 (La. 5/9/08), 980 So.2d 695. Generally, doubt as to the existence, extent, or manner of exercise of a predial servitude must be resolved in favor of the servient estate. See La. Civ. Code art. 730.

To prove the servitude, the TRI owners rely on dedication language included in the first and second filing plats and the property deeds which reference them. The following dedication language, appears under the heading “PRIVATE DEDICATION” on both survey plats:

THE AREA SHOWN AS ALL-PURPOSE SERVITUDE IS HEREBY DEDICATED IN PERPITUITY FOR ACCESS TO THE LOTS SHOWN HEREON, DRAINAGE, EMERGENCY VEHICLES AND UTILITY COMPANIES, AND IS DEDICATED FOR THE USE BY ANY PUBLIC OR PRIVATE ENTITY RELATING HEALTH AND SAFETY, NO TREES, SHRUBS, OR OTHER PLANTS MAYBE PLANTED, NOR SHALL ANY BUILDING, FENCE, STRUCTURE, OR IMPROVEMENTS BE CONSTRUCTED OR INSTALLED WITHIN-OR OVER THIS PRIVATE SERVITUDE SO AS TO PREVENT OR UNREASONABLY- INTERFERE WITH THE PURPOSE FOR WHICH THE SERVITUDE IS GRANTED. (Emphasis added.)

As a conventional servitude, the interpretation of the dedication language is guided by the rules for contractual interpretation. See La. Civ. Code arts. 654 and 697; Bonfanti v. City of Baton Rouge, 15-0549, 2015 WL 6951280 (La. App. 1 Cir. 11/9/15). The reasonable intention of the parties to a contract cannot be assumed, but must be sought by examining the words of the contract itself. Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 12-2055 (La. 3/19/13), 112 So.3d 187, 192. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ. Code art. 2046. Common intent is determined in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Clovelly, 112 So.3d at 192. When a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. Id.

Courts should refrain from construing a contract in a manner that leads to absurd consequences. La. Civ. Code art. 2046. Most importantly, a contract must be interpreted in a common-sense fashion, according the words of the contract their common and usual significance. Clovelly, 112 So.3d at 192; see also La. Civ. Code art. 2047. A contract provision that is susceptible to different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective. La. Civ, Code art. 2049. 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. La. Civ. Code art. 2050.

A plain reading of the dedication language reveals two distinct dedications. The first sets forth specific uses separated by commas, which suggests a list of agreed uses for the servitude — “for access to the lots shown hereon, drainage, emergency vehicles and utility companies.” The comma after “hereon” distinguishes the use for “access” from the other uses for which the servitude is granted, namely, “drainage, emergency vehicles and utility companies.” This interpretation is supported by the fact that the word “access” creates a use that is of a completely different character than, for example, “drainage.” A servitude of “access” is not necessary to create a servitude of “drainage.” The uses are separate and distinct.

The second dedication is separated from the first by the phrase “and is dedicated” and is more general. It is “for the use by any public or private entity relating [to.] health and safety.” The dedication language clearly separates the two dedications, such that the use for health and safety does not modify the uses set |fiforth in the first dedication, meaning public or private entities can use the servitude for' health and safety related purposes, while the uses set forth in the first dedication “for access to the lots shown hereon, drainage, emergency vehicles and utility companies” are not limited to health and safety related purposes.

This construction is consistent with:the plain language of the dedication and avoids absurd results, like limiting the use of the servitude by “utility companies,” such as cable, satellite or telephone companies, to only health and safety related purposes. This interpretation also eliminates the need to reword the dedication to achieve the Board’s suggested interpretation, which is the dedication only grants access for drainage, access for emergency vehicles, and access for utility companies. The Board’s interpretation requires both ignoring the comma placed after the phrase “access to the lots shown hereon” and inserting “for” before the words “drainage,” “emergency vehicles,” and “utility companies.” I cannot, under the guise of interpretation, alter the dedication language to achieve the result advocated by the Board, when reading it as written, with the punctuation and words provided, results in an unambiguous and reasonable meaning.

The dedication language on the first and second filing plats, together with the subsequent sale of subdivided properties by reference to those plats, creates an all-purpose, predial servitude of access or passage in favor of the properties on the island, including the lots owned by the TRI owners. The servitude allows the TRI owners to access their properties, including crossing the condominium development’s common space. The trial court erred in finding otherwise.

Generally, an injunction will issue only in its prohibitory form, but when a party obstructs another in the enjoyment of a real right, the latter may be entitled to a prohibitory injunction restraining the disturbance and also a mandatory | (injunction for the removal of the obstruction. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664. The parties do not dispute that the servitude area is blocked by a fence connected to the easterly gate, which is welded shut. The TRI owners have limited their request for injunctive relief specifically to the welded-shut gate, which the record establishes clearly and unreasonably interferes with a permitted use of the servitude — access to the properties on the island. Thus, the TRI owners are entitled to a mandatory injunction ordering the Board to remove or modify the gate to allow passage over the servitude. For these reasons, I agree with dissolving the permanent injunction and disagree with denying the mandatory injunction.

CALLOWAY, J.,

agreeing in part and dissenting in part.

Iil agree the trial court correctly overruled the peremptory exception raising the objection of no right of action. I agree with the trial court that the Board of the incorporated owner’s association for Three Rivers Commons is the proper party to seek relief in this matter.

As to the competing requests for injunc-tive relief, which raise the issues of whether any servitude exists on the island in favor of the TRI owners, and whether the welded-shut gate obstructs such a servitude, I disagree with reversing and dissolving the injunction that prevents the TRI owners from attempting to open the welded-shut gate. I do not find that the TRI owners proved the existence of an “all-purpose” predial servitude of access or passage in favor of the properties on the island. Based on my review of the record, there is only one servitude — a fifty-foot utility servitude, which does not allow the TRI owners access to this property for “all purposes.” I believe the TRI owners should be prevented from attempting to open the welded-shut gate on the basis of an “all-purpose” servitude. Thus, I disagree with the per curiam opinion to the extent it recognizes the all-purpose servitude and partially reverses the trial court’s judgment dissolving the prohibitory injunction.

|2I agree with affirming the denial of the request for a mandatory injunction ordering the opening of the welded-shut gate. I do note, however, that any structure preventing access to the fifty-foot utility servitude — such as a welded-shut gate — interferes with the purpose for which the utility servitude was granted and, in my opinion, is prohibited by the language of the servitude. However, the TRI owners are not entitled to access or passage through the property based on the premise that an “all-purpose” predial servitude exists in their favor. Therefore, I agree with the per curiam opinion to the extent it affirms the trial court’s judgment denying the mandatory injunction and rendering judgment ordering Three Rivers Commons to remove or modify the welded-shut gate to allow access and passage in favor of the TRI owners.

For these reasons, I respectfully agree in part and dissent in part from the per curiam opinion.

HOLDRIDGE, J.,

agreeing in part and concurring in part.

hi agree that the trial court correctly overruled the exception of no right of action for the reasons set forth in the per curiam opinion. Regarding the requests for injunctive relief, I concur with the per curiam opinion which reversed the trial court with regard to the injunction prohibiting the plaintiffs-in-reconvention from opening the welded-shut gate. The welded-shut gate is prohibited by the language of the “50’ ALL PURPOSE UTILITY SERVITUDE” which prohibits any structure or improvement from being constructed or installed over the private servitude. A welded-shut gate would clearly interfere with the purpose for which the servitude was granted and is prohibited by the language of the servitude.

I agree with the trial court that the mandatory injunction requested by the plaintiffs-in-reconvention should be denied. The plaintiffs-in-reconvention failed to carry their burden of proving that a mandatory injunction should be issued to allow them the unfettered right to use the servitude in question.

For these reasons, I respectfully agree in part and concur in part from the per curiam opinion. 
      
      . For illustrative purposes, the pathways are shown on the diagram attached hereto as Appendix A. The testimony at trial indicated that Three Rivers Commons’ property extends to the line to the right of lot "4-A” on the diagram.
     
      
      . The TRI owners initially asserted the servitude of passage was established by an instrument filed in the conveyance records of Ascension Parish, which allegedly created a servitude of parldng and passage extending from the parking lot in Ascension Parish, over the bridge to the island, through the condominium development's common space, and to the end of the island. That instrument was attached to the TRI owner’s answer and petition for cross claim, but was never introduced into evidence. At trial, the TRI owners explained the Ascension-filed instrument was referenced only "for background,” "to show that the servitude started in the parking lot and came all the way through ... to the end of the island” and, in fact, objected to all documents listed on the Board’s potential exhibit list "dealing with the parking lot over in Ascension Parish.”
     
      
      . The TRI owners stated that they were urging exceptions of no right of action and no cause of action, and the trial court’s judgment denies both exceptions. On appeal, the TRI owners argue only the denial of the exception of no right of action; therefore we reference 'only the exception of no right of action herein.
     
      
      . A mandatory injunction is one that commands the doing of some action, and cannot be issued without a hearing on the merits. City of Baton Rouge/Parish of East Baton Rouge v. 200 Government Street, LLC, 08-0510 (La.App. 1 Cir. 9/23/08), 995 So.2d 32, 36, writ denied, 08-2554 (La. 1/9/09), 998 So.2d 726. Since the jurisprudence has established that a mandatory preliminary injunction has the same basic effect as a permanent injunction, the party seeking a mandatory injunction must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the injunction. Concerned Citizens for Proper Planning, LLC, 906 So.2d at 664.
     
      
      . Hon. Curtis A. Calloway, retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
     