Ikeal Davenport v. Yusef Chew and the City of Baker

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 0036

IKEAL DAVENPORT

VERSUS

YUSEF CHEW AND THE CITY OF BAKER

Judgment Rendered: SEP 15 2023

On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 714088

Honorable Wilson E. Fields, Judge Presiding

Mary E. Roper Attorneys for Plaintiff -Appellant,
Baton Rouge, LA Ikeal Davenport
and-

Heidi M. Vessel
Zachary, LA

Yusef Chew Defendant -Appellee,
Baker, LA Pro Se

Kenneth R. Fabre Attorney for Defendant -Appellee,
Baker, LA City of Baker

BEFORE: MCCLENDON, RESTER, AND MILLER, JJ.

HESTER, J.

Plaintiff, Ikeal Davenport, appeals a judgment of the trial court denying his

petition for permanent injunction against defendants, the City of Baker and Yusef

Chew. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 14, 2021, plaintiff filed a petition for temporary restraining

order, preliminary injunction, and permanent injunction against both the City of

Baker ( the " City") and Mr. Chew, alleging that the defendants were in violation of

the Code of Ordinances for the City of Baker relative to Mr. Chew' s plans for the

construction of a building.' Plaintiff contended that Mr. Chew failed to obtain

required permits and inspections and failed to meet all conditions and legal

requirements necessary for the construction of the building. Plaintiff also contended

that the City committed " malfeasance and fail[ ed] to enforce relevant ordinances" in

the Code of Ordinances for the City of Baker. As a result of the alleged violations

and Mr. Chew' s proposed construction, plaintiff contended that water runoff and

drainage problems would occur and negatively impact neighboring properties,

including his own, Plaintiff prayed that judgment be entered against Mr. Chew and

the City "permanently retraining, enjoining[,] and prohibiting them from proceeding

with any construction on the aforementioned property" and further sought all costs

of the proceeding, including attorney fees, damages, and sanctions for the violation

of the Code of Ordinances.

The trial court did not issue a temporary restraining order and, instead, set the

preliminary injunction for hearing. The trial court ultimately denied the preliminary

injunction on February 24, 2022. The matter was set for trial on the merits of the

Mr. Chew answered the petition, denying all allegations, and filed a reconventional
demand against plaintiff. Mr. Chew' s reconventional demand is not a part of this appeal.

The record does not contain any responsive pleadings filed on behalf of the City.

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permanent injunction on July 12, 2022, by which date the building construction had

been completed about three months prior. At the conclusion of the trial, the trial

court found as follows:

Plaintiff put forth testimony through Mr. Davenport [who] believes that
the building] that [ Mr. Chew] has built has violated some city
ordinance of Baker. The ordinance determines the building setback for
one to build their residen[ ce].... This particular area in question had ...
already been zoned. 1t was some debate or talk about whether or not it
was R2 or just R or residential, so Mr. Chew is correct in going to the
city to get permits to build whatever he deemed to build based on that
zoning, and the city is correct in issuing permits based off what is
presented to them. The issue [ that] comes up is whether or not Mr.

Chew followed the regulations and rules in terms of building his
structure, whether or not he had to abide by a five -feet setback. The
court finds that yes, he had to abide by the five -feet setback. However,
there is nothing in the record for this court to be able to view and say
that Mr. Chew' s structure is beyond the five -feet setback. ... counsel

wanted to introduce [ the surveyor' s] survey. However, the surveyor
needed to be present for that to be placed into the record. There were
some pictures introduced in terms of the current structure and the
development of the structure, but this court can' t determine based off
pictures whether or not he' s within that five -feet setback or not.... the

court doesn' t feel like the plaintiff met [ his] burden to show that Mr.
Yusef Chew is not in compliance with the building permit that was
issued by the City of Baker. The court finds that the City of Baker did
not violate any of their own ordinance[ s] or anything in terms of their
regulation[ s] in issuing the permit. So, therefore, the court is going to
deny the injunction filed by the plaintiff, and the plaintiff is to bear all
costs of these proceedings.

The judgment denying the petition for permanent injunction was signed on

September 7, 2022, and this appeal followed.

LAW AND ANALYSIS

The primary purpose of injunctive relief is to prevent the occurrence of future

acts that may result in irreparable injury, loss, or damage to the applicant.

Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall

Authority, 2004- 0211 ( La. 311$ 104), 867 So. 2d 651, 655; La. Code Civ. P. art.

3601. 2 The writ of injunction is a harsh, drastic, and extraordinary remedy, which

2 Despite plaintiff' s argument in brief, La. Civ. Code art. 779 is not applicable to the facts
of this case. Article 779 provides that building restrictions may be enforced by mandatory and
prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil
Procedure. However, there are no building restrictions at issue in this suit. Building restrictions
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should only issue in those instances where the moving party is threatened with

irreparable loss or injury and is without an adequate remedy at law. Concerned

Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 2004- 0270 ( La.

App. 1st Cir. 3124105), 906 So. 2d 660, 664. Irreparable injury means the loss cannot

be adequately compensated through money damages or measured by a pecuniary

standard. Id. However, a petitioner is entitled to injunctive relief without the

requisite showing of irreparable injury when the conduct sought to be restrained is

unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes

a direct violation of a prohibitory law and/ or a violation of a constitutional right. Id.

Generally, a party seeking the issuance of a preliminary injunction must show

that he will suffer irreparable injury, loss, or damage if the injunction does not issue

and must show entitlement to the relief sought. This must be done by a primafacie

showing that the party will prevail on the merits of the case. State Mach. & Equip.

Sales, Inc. v. Iberville Parish Council, 2005- 2240 ( La. App. 1st Cir. 12128106),

952 So. 2d 77, 81. However, the issuance of a permanent injunction takes place only

after a trial on the merits, in which the burden of proof must be founded on a

preponderance of the evidence. Id. The manifest error standard is the appropriate

standard of review for the issuance or denial of a permanent injunction. See Id.

In addressing plaintiffs first assignment of error that the trial court erred in

denying the permanent injunction, we first note that the specific injunctive relief

sought by plaintiff was to enjoin defendants from proceeding with any construction

on Mr. Chew' s property. However, plaintiff testified that a building now existed on

the property, of which he took pictures approximately two weeks prior to the trial,

which were admitted into evidence. Additionally, the testimony of Mr. Chew

are charges imposed by the owner of an immovable in pursuance of a general plan governing
building standards, specified uses, and improvements. La. Civ. Code art. 775.

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established that the construction of the building was completed about three months

prior to the trial on the permanent injunction.

In light of the present posture of this case, and at the time of trial, plaintiff' s

claim for injunctive relief, as requested, is moot. A case is moot when a rendered

judgment or decree can serve no useful purpose and give no practical relief or effect.

Standard Mortgage Co. v. Bey, 2020- 0978 ( La. App. 1 st Cir. 5127121), 327 So. 3d

35, 39. It was impossible for the trial court and is impossible for this court to issue

the permanent injunction requested by plaintiff — to enjoin defendants from

proceeding with any construction on Mr. Chew' s property. The construction of the

building on Mr. Chew' s property is an established fact. Accordingly, we find no

error in the trial court' s refusal to grant injunctive relief.

Moreover, we find no manifest error in the trial court' s determination that

plaintiff failed to meet his burden of proof of establishing that defendants violated

City ordinances. As noted by the trial court in its oral reasons, plaintiff failed to

carry his burden of proof, by a preponderance of the evidence, that the act he sought

to enjoin was unlawful, i.e., that Mr. Chew' s building was constructed in violation

of the setback lines for residential properties.' No testimony or evidence was

3 Section 27-41 of the Code of Ordinances for the City of Baker sets forth the minimum
building setbacks within an applicable zoning district. All single- family residential zoning
districts, besides district R- 1, have a minimum side setback of 5 feet. According to Section 27- 2,
setback" means the " horizontal distance between the property line and the building foundation
line."

It is noted that the Building Permit obtained by Mr. Chew from the City indicates that the
width of the lot was 40 feet. Mr. Chew testified that the applicable setback was zero on each side
and twenty feet from the front. According to the zoning schedule set forth in Section 27- 41, these
measurements are the setbacks for property zoned R- 7 ( zero lot line residential). The minimum
width of a lot for zero lot line residential property is 40 feet pursuant to Section 27- 41. While
plaintiff attempted to establish the applicable zoning classification of the property ( claiming it was
zoned as R-2 ( single family residential) and requiring a minimum lot width of 70 feet), no evidence
or testimony established this fact. The trial court sustained the City' s objection to the introduction
of purported zoning map into evidence.

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admitted into evidence establishing the actual setback measurements on Mr. Chew' s

property.' Accordingly, plaintiff' s first assignment of error lacks merit.

In his second assignment of error, plaintiff maintains that the trial court erred

in failing to award damages to plaintiff In light of plaintiff' s failure to meet his

burden of proof at trial, there is no basis on which to award plaintiff damages.

Therefore, we do not find any error in the trial court' s failure to award same.

Plaintiff' s second assignment of error also lacks merit.

CONCLUSION

For the reasons herein assigned, the trial court' s September 7, 2022 judgment

denying plaintiff' s petition for permanent injunction is affirmed. All costs of this

appeal are assessed to plaintiff.

AFFIRMED.

While plaintiff attempted to introduce the survey performed by Alvin Fairburn &
Associates, LLC, the City objected and the trial court sustained the objection. Plaintiff assigned

no error as to this ruling on appeal.

C8l