Thomas D. Davenport, Sr., Et Ux. v. City of Alexandria

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-800

THOMAS D. DAVENPORT, SR., ET UX.

VERSUS

CITY OF ALEXANDRIA

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 241,368
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery,
Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Thomas D. Davenport, Jr.
The Davenport Firm, APLC
602 Murray Street
Alexandria, Louisiana 71301
(318) 445-9696
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Thomas D. Davenport, Sr., et ux.

Ricky L. Sooter
Jeremy C. Cedars
Provosty, Sadler, deLaunay, Fiorenza & Sobel, APC
Post Office Drawer 1791
Alexandria, Louisiana 71309-1791
(318) 445-3631
COUNSEL FOR DEFENDANT/APPELLEE:
City of Alexandria

CONERY, Judge.

Thomas D. Davenport Sr. and Dinah Lachney Davenport (the Davenports)

appeal the April 4, 2014 judgment of the trial court which denied and dismissed

with prejudice the Davenport’s petition for declaratory judgment, temporary

restraining order, and preliminary injunction, as amended. In its April 4, 2014

judgment, the trial court granted the mandatory injunction filed by the City of

Alexandria (City), which required the Davenports to remove from their property,

located at 3025 Madonna Drive, on or before June 27, 2014, the addition to their

home, more fully shown on Exhibit A attached to and made part of the trial court’s

judgment.

In the alternative, the April 4, 2012 judgment required the Davenports to

comply with the requirements of the International Residential Building Code,

adopted by the State of Louisiana, and the City of Alexandria’s Construction

Development Department Building Code and to complete such work on the

property as required by a building permit issued by the City on or before June 27,

2014. The Davenports failed to adopt the alternative option contemplated in the

judgment and this appeal followed. The City has answered the appeal and seeks

enforcement of the Mandatory Injunction. For the following reasons, we affirm

and remand with instructions.

FACTS AND PROCEDURAL HISTORY

After a trial on the merits which began on March 18, 2014, on March 19,

2014, the trial court issued oral reasons for judgment, wherein it adopted the facts

alleged in the City’s memorandum. After a review of the record, we find that the

facts are not in dispute and shall also adopt the facts as stated by the trial court:

What I’d like to -- does anybody have any questions or
anything that they want to say before I render a verdict? I think
everything, like Mr. Davenport said, it’s already been said at trial.

I’m going to adopt the facts that were alleged in the City of
Alexandria’s memorandum. I don’t think that there’s really a lot of
dispute about the facts. And, so, what I’m going to find as facts is the
following: The Davenports, Mr. Thomas D. Davenport, Sr., and his
wife acquired a home in at 20--3025 Madonna Drive in Alexandria,
Louisiana, in 1968, and they paid $25,000 for the house on that day –
in that year. The home on Madonna Street, Madonna Drive, included
a one-car carport at the time they purchased it. Mr. Davenport claims
to added a tin roof structure which is going to be referred to as the
“lean-to” in 1969.

A driveway leaning--leading to the lean-to was added in 1973,
and a slab was poured to that lean-to in 1980.

In March/April of 2011, Mr. Davenport, Sr., hired a contractor
named Billy Fowler to remove the lean-to and extend the roof of the
existing one car carport to create a two-car carport.

On April 11th, the City received a call from Ms. Betty Laurent -
L-A-U-R-E-N-T, who was the Davenports’ neighbor with a complaint
about the construction of the new carport.

After confirming with the City permit technician, Pam Willis,
that no building permit had been issued to the Davenports, the
Superintendent of Construction Development for the City, Shirley
Branham - B-R-A-N-H-A-M, prepared a standard cease and desist
form with the correct date, address, cited code violation, and edited
the noncompliance warning date. Ms. Branham then contacted the
City building inspector, Chris Wiley, and asked him to visit the site,
confirm the failure to obtain the permit, take photographs, and post
the Cease and Desist order.

Mr. Wiley, then traveled to the Davenports’ home, confirmed
that they had not applied for a permit, and gave Mr. Davenport and his
contractor application to go see the City to apply for a permit, a work
permit. Mr. Wiley photographed the new construction and pointed out
to Mr. Davenport that the new roofline appeared to be encroaching on
the required five foot setback line. Mr. Wiley posted the Cease and
Desist order on the home, but Mr. Davenport tore it down. After
explaining that it was procedure to photograph the notice, Mr.
Davenport held the notice for Mr. Wiley to photograph.

Within an hour of Mr. Wiley’s visit to the home, the
Davenports then went and met with Shirley Branham in her office to
determine why a Cease and Desist order had been issued. After

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explaining that the construction required a permit, Ms. Branham then
explained her -- that her office could not issue a permit, because the
inspection revealed a potential zoning violation of the five foot
setback line encroachment. At that time, she directed the Davenports
to visit Mr. Glenn Couvillion, the City Zoning Analyst, to review the
setback requirements for that location and to try to resolve the issue.

Shortly thereafter, Ms. Branham sent the pictures taken by
Chris Wiley to the Alex -- City of Alexandria surveyor and requested
a field inspection to verify any setback encroachments.

The City surveyor confirmed that the new, that the new
construction encroached on the five foot setback line. Ms. Branham
then called the Davenports’ contractor to inform them of the zoning
violation and that the homeowner would have to seek a variance from
the Board of Adjustments and Appeals.

Despite his failure to obtain a permit and being informed of the
zoning violation, the Davenports completed the new construction.

On April 13, 2011, the Davenports filed a Petition for
Declaratory Judgment and a Petition for a Temporary Restraining
Order, a Preliminary Injunction, and a Permanent Injunction.

After that the City filed a Reconventional Demand seeking a
Mandatory Injunction to have the violating structure removed.

Facts that are not in dispute are that Mr. Davenport, Sr., and his
wife are owners of the immovable property and the home that’s
located at 3025 Madonna Street. There’s no doubt that in 1969 he
added a tin roof, which was a lean-to structure at 3025 Madonna
Street, Madonna Drive that was adjacent to the one car carport that
was in existence when they purchased their home. In 1973, Mr.
Davenport added a driveway that was leading to the lean structure at
3025 Madonna. In 1980 he poured concrete that went under the lean-
to located at that address. Then in the spring of 2011, he hired Billy
Fowler, a contractor; to remove the lean-to, extend the roof of the
one-car carport to create a two-car carport. Then on April the 11th,
the City received a call, and the complaint about this matter started
and that’s when everything happened that led to this suit.

The trial court then issued its reasons for ruling on the record and made

findings of fact:

That was not a reroofing. That was a destroying of the old
structure and building a new structure. And my finding -- that’s my
finding of fact, and I think that the law under the City ordinance
requires if it’s going to be a new building, then they have to comply

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with the City code that’s in effect at the time, and Article -- Section
28-7.1 says it is the intent of this chapter to permit these
nonconformities to continue until they are removed and not to
encourage their survival except by an application for an adjustment or
appeal. So, the City’s going to allow these people when the Code took
effect to keep the buildings there that are nonconformity, but the
minute that they’re removed or there is a substantial alteration to them,
they’re going to have to comply with what the Code says because they
do not want to encourage their survival…

So, I think that what happened – I was thinking last night, when
I was going through all this that what happened, when they tore down
the old one, that pushed the reset button in a way, is what I would call
it. So, it got reset. It was a nonconforming [structure]. It was
destroyed. The reset button was pushed and then they had to build a
conforming [structure] with the code that was in effect at the time.

So, based upon those findings of fact, I’m going to deny the
request by the … by the plaintiff for declaratory judgment. I do not
find that there was a … discriminatory application of the City Code by
the defendant.

The trial court then began a lengthy discussion with counsel which resulted

in the alternative portion of the judgment. The alternative measures, crafted by the

trial court, would have required, according to the International Residential

Building Code, adopted by the State of Louisiana, that the Davenports meet a two

foot setback for the carport addition and then the remaining three feet must meet

the fire rating required under the state code. During the discussion, the trial court

took into consideration the number of years the Davenports had lived in the

residence and the costs associated with the project. The portion of the trial court’s

judgment relating to the alternative remedy it crafted stated:

[H]owever if Plaintiffs obtain a building permit for the modification
this structure, and comply with the requirements of the City of
Alexandria’s Construction Development Department Building Code
and International Residential Building Code, the Plaintiffs are not
required to abate and remove the entire structure at issue, but are
required to perform and complete such work that is outline[ed]in the
building permit issued by the City of Alexandria’s Construction
Development Department, on or before the 27th day of June.

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The record reflects that both the trial court and counsel appeared to believe

the matter had been resolved at the close of the hearing. A plan was in place to

have Mr. Davenport sign a homeowner’s affidavit, which would have allowed Mr.

Davenport to serve as his own general contractor and hire Mr. Billy Fowler, the

unlicensed contractor who constructed the second carport, to complete the project

in accordance with the restrictions imposed. The trial court expressed its

agreement with this plan and its confidence in Mr. Fowler’s ability to carry out the

compromise.

The parties agreed that counsel for the City would draft a judgment, which

would be submitted to counsel for Mr. Davenport for approval. Once approved,

counsel for the City would hold the original for the ninety-day period, and the

parties would reconvene in chambers to review the status of the construction. In

addition, there were some housekeeping measures required which were addressed

in the form of an addition to the judgment by the trial court overruling the Board of

Adjustments and Appeals denial of a variance to the Davenports, which allowed an

appeal to the district court.

Despite a herculean effort by the trial court to resolve the dispute, the

Davenports did not comply with the alternative resolution proposed by the trial

court and counsel. The judgment signed by the trial court on April 4, 2014, does

not contain the signature of Mr. Davenport’s attorney, and this timely appeal by

Mr. Davenport followed. Thus, the record reflects that the compromise was not

accepted by the Davenports. The City answered the appeal seeking enforcement of

the April 4, 2014 judgment granting the City’s mandatory injunction requiring the

Davenports to:

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abate and remove from the property located at 3025 Madonna Drive --
all building materials, including but not limited to lumber, decking,
shingles, plywood and insulation, which was incorporated into the
addition to the home since February, 2011 as shown in the area
highlighted in gray on Exhibit A, attached hereto and made a part of
this Judgment.

DAVENPORTS’ ASSIGNMENTS OF ERROR

On appeal, the Davenports assign the following as error:

(1) The Trial Court committed legal error by rendering a
conclusion of law that the Appellant’s carport is not a
nonconforming structure when the case law is clear on this
issue. In the alternative, the Trial Court committed manifest
error by finding the carport was not a nonconforming structure.

(2) The Trial Court committed legal error by rendering a
conclusion of law that the Appellant’s carport could not be
reroofed, repaired, or restored when the Code of Ordinances
allow for repairs. In the alternative, the Trial Court committed
manifest error by ruling the carport could not be reroofed,
repaired or restored.

(3) The Trial Court committed legal error by failing to apply the
exemptions as required by well-established law of this State.

(4) The Trial Court committed legal error by concluding the
Appellant was not discriminated against by the City.

(5) The Trial Court committed legal error by finding or concluding
the City’s Code and actions were constitutional.

CITY’S ASSIGNMENT OF ERROR

On appeal, the City alleges the following as error:

(1) The trial court erred in allowing Plaintiffs only to tear out the
Portions of the offending structure to the five-foot line and not
abating the entirety of the structure.

LAW AND DISCUSSION

Standard of Review

“[A]ppellate jurisdiction of a court of appeal extends to law and facts.”

La.Const. art. 5, § 10(B). The appellate court must determine whether the trial

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court committed an error of law or made a factual finding that was manifestly

erroneous or clearly wrong. Gibson v. State, 99-1730 (La. 4/11/00), 758 So.2d 782,

cert. denied, 531 U.S. 1052, 121 S.Ct. 656 (2000). The reviewing court must

review the record in its entirety to make this determination. Stobart v. State, Dep’t

of Transp. and Dev., 617 So.2d 880 (La.1993).

However, statutory interpretations are questions of law. Shell v. Wal-Mart

Stores, Inc., 00-997 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, writ denied, 01-

1149 (La. 6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial

court’s reasonable decision on a question or matter properly within the trial court’s

discretion, if the trial court’s decision is based on an erroneous interpretation or

application of the law, such an incorrect decision is not entitled to deference. Kem

Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

LAW AND ANALYSIS

The City’s Statutory Authority

There is no dispute that the City has the authority pursuant to La.R.S.

40:1730.21 et seq. to regulate, within its corporate limits, construction, alterations,

and repair of every structure or appurtenance connected or attached thereto. In

addition, in connection with this authority, the City is also required under state law,

pursuant to La.R.S. 33:101 et seq. and La.R.S. 33:4721 et seq., to promote the

health, safety, convenience, and general welfare of the City’s residents.

To implement this authority, Alexandria, Louisiana, Code of Ordinances 28-

6.1 creates an administrative entity with the ability to enforce the City’s

ordinances, including notifying any person in writing of a violation and ordering

any action necessary to correct the violation, including the cease and desist order

issued to the Davenport’s after the complaint from the Davenport’s neighbor, Ms.

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Betty Laurent, about the construction of the second carport. The complaint

prompted Shirley Branham, the City’s Superintendent of Construction

Development, to confirm with City permit technician, Pam Willis, that no building

permit had been issued to the Davenports for the construction of the second

carport.

Ms. Branham then instructed the City’s building inspector, Chris Wiley, to

visit the Davenport home and determine if the new roof line of the second carport

was encroaching on the required five-foot setback, pursuant to Alexandria,

Louisiana, Code of Ordinances 28-3.7(E)(2), which is applicable to the

Davenport’s Single Family Home. The ordinance provides, “Side, interior: Five

(5) feet for all buildings and swimming pools unless written consent has been

obtained from the adjacent property owner, subject to Sec. 28-3.26(K), zero lot

line.” Upon his determination that the new roof line was in violation of

Alexandria, Louisiana, Code of Ordinances 28-3.7(E)(2), Mr. Wiley issued a cease

and desist order and instructed the Davenport’s to seek the necessary building

permit, which required that they obtain a variance from the City’s Board of

Adjustments and Appeals. The Davenport’s failed to obtain the necessary variance

and completed the construction of the second carport in violation of the cease and

desist order.

The Davenport’s Assignments of Error One-Three

At trial the Davenport’s admitted that the addition of the second carport was

in violation of Alexandria, Louisiana, Code of Ordinances 28-3.7(E)(2). The focus

of both their arguments at trial and their first three errors on appeal is that the

second carport addition is exempt from the provisions of the ordinance because it

is a non-conforming structure. This court does not agree.

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A non-conforming structure is defined in Alexandria, Louisiana, Code of

Ordinances 28-7.4 and states:

Where a lawful structure exists that could not be built under the terms
of this chapter by reason of restrictions on area, lot open space, height,
yards, its location on the lot, or other requirements concerning the
structure, such structure may be continued so long as it remains
otherwise lawful, subject to the following provisions:

A. No such nonconforming structure maybe enlarged or altered in a
way that increases its nonconformity, but any structure or portion
thereof may be altered to decrease its nonconformity.

B. Should such nonconforming structure or nonconforming portion
structure be destroyed by any means to an extent of more than fifty
(50) per cent of its replacement cost at time of destruction, it shall
not be reconstructed except in conformity with the provisions of
this chapter.

C. Should such structure be moved for any reason for any distance
whatever, it shall thereafter conform to the regulations for the
district in which it is located after it is moved.

Alexandria, Louisiana, Code of Ordinances 28-7.1 provides the purpose and

intent for allowing nonconforming structures to exist and states in pertinent part:

A. Within the districts established by this chapter or amendments
that may later be adopted there exist (1) lots, (2) structures, (3)
uses of land and structures, and (4) characteristics of use, which
were lawful when they were established, but which would be
prohibited, regulated or restricted under the terms of this
chapter or future amendment. It is the intent of this chapter to
permit these nonconformities to continue until they are
REMOVED, but not to encourage their survival, except by
application of a special exception to the board of
adjustments and appeals.

B. It is further the intent of this chapter that nonconformities
shall not be enlarged upon, expanded or extended, nor be
used as grounds for adding other structures or uses
prohibited elsewhere in the same district.

(Emphasis added.)

It is clear that, when the Davenports bought their home in 1968, it only had a

one car carport. In 1969, Mr. Davenport added the “lean-to” as a separate addition

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to the existing carport and it encroached into the five-foot setback. In 1973, the

Davenport’s paved a driveway to the “lean-to,” and in 1980, poured a slab under

the “lean-to.” All of this work was done prior to the adoption of Alexandria,

Louisiana, Code of Ordinances 28-3.7(E)(2), which requires a five foot setback.

Thus, the “lean-to” was a non-conforming structure which was grandfathered in

and allowed to remain as long as it was not removed pursuant to Alexandria,

Louisiana, Code of Ordinances 28-7.1.

The testimony of Mr. Fowler, the Davenport’s contractor, clearly reflects

that the “lean-to” was torn down, except as the trial court determined, “The only

thing that was left of the old lean-to was electrical service and one beam. Mr.

Fowler could not remember if they took that beam down, if they raised it or if it

was taken off.” The trial court’s determination that the “lean-to” was voluntarily

removed is confirmed by the before and after pictures of the Davenport home,

which show a full size second carport. Thus, the Davenport’s statement to the City

that they only intended to re-roof the “lean-to,” which did not require a permit, was

not completely accurate.

The Davenports argue the application of Alexandria, Louisiana, Code of

Ordinances 28-7.4(B), which allows them to rebuild a nonconforming structure if

less than fifty percent of the replacement cost of the structure was destroyed. The

application of this section of the Alexandria, Louisiana, Code of Ordinances would

require that the “lean to” was a part of the original house purchased in 1968 by the

Davenports and that a portion of the “lean-to” was destroyed. The facts are clear

that the “lean-to” was added by Mr. Davenport in 1969 and was voluntarily

removed by the Davenports during the construction of the second carport.

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Therefore, the trial court correctly determined that Alexandria, Louisiana, Code of

Ordinances 28-7.4(B) was not applicable.

The findings of fact by the trial court and its application of the Alexandria,

Louisiana, Code of Ordinances in force at the time of the construction of the

second carport support the trial court’s conclusion that the “lean-to” was a

nonconforming structure that was voluntarily removed by the Davenports. In

completing the second carport without a permit and in violation of a cease and

desist order, the trial court had no choice but to grant the City’s request for a

mandatory injunction pursuant to Alexandria, Louisiana, Code of Ordinances 28-

6.1. Therefore, we find the Davenport’s first three assignments of error are

without merit.

The Davenport’s Assignments of Error Four and Five

The Davenports maintain that the “trial court committed legal error” when it

found that they were “not discriminated against by the City,” and that the “City’s

Code of Ordinances and actions were constitutional, when the Code gives

unfettered and unbridled discretion to a City Employee, who determines who

receives a permit without any uniform standards to do so.”

The underlying basis of both of their claims is that their neighbor, Ms.

Laurent, was treated differently by the City when she was required to make repairs

to the roof of her home after it was damaged by a tornado in 2012. The ordinance

which applies to the repairs of non-conforming structures such as Ms. Laurent’s

roof and Mr. Davenport’s “lean-to,” states, “A non-conforming structure may be

repaired and maintained so long as any such repair or maintenance does not in any

way increase its nonconformity and it remains otherwise lawful.” (Emphasis

added.)

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In the case of Ms. Laurent’s roof, damaged by the tornado, she was allowed

to repair the portion of her roof that may have been in violation of the five-foot

setback required by Alexandria, Louisiana, Code of Ordinances 28-3.7(E)(2),

based on the exception in Alexandria, Louisiana, Code of Ordinances 28-7.7,

which allows repairs to nonconforming structures. Ms. Laurent began repairs to her

roof without a permit from the City. However, when a complaint was filed with

the City, she ceased the work on the roof repair until the City issued her a permit

which did not require a variance. Ms. Laurent’s treatment by the City, which did

not require her to submit plans or obtain a variance, is in stark contrast to the

situation of the Davenports.

The Davenports informed the City that they intended to re-roof the “lean-to”

structure, added in 1969, to their original one carport home purchased in 1968. In

1973, a driveway was added leading to the “lean-to,” and a slab was poured to that

structure in 1980. The testimony and photographs clearly confirm that the “lean-

to” was not just re-roofed, but was removed and replaced by a second completed

carport addition. Thus, we agree with the trial court’s findings that the

Davenports’ construction of a second carport and Ms. Laurent’s repairs to her roof

occasioned by tornado damage required the application of different portions of the

Alexandria, Louisiana, Code of Ordinances.

A panel of the first circuit succinctly stated the necessary requirements for

the Davenports’ claims of discrimination and the unconstitutional application of

the Alexandria, Louisiana, Code of Ordinances:

The Fourteenth Amendment and La. Const. art. I, § 3 provide
that all persons are entitled to equal protection of the law, and require
that “persons similarly situated receive like treatment.” Whitnell v.
Silverman, 95–0112, pp. 9–10 (La.12/6/96), 686 So.2d 23, 29–30. But
the equal protection provisions of the federal and state constitutions

12

do not require absolute equality or precisely equal advantages.
McCormick v. Hunt, 328 So.2d 140, 142 (La.1976).

The guarantees of equal protection under the federal and state
constitutions differ, and therefore usually require separate analysis as
to whether each has been violated. Progressive Security Insurance
Company v. Foster, 97–2985, p. 17 (La.4/23/98), 711 So.2d 675, 685–
86. However, where no fundamental or express constitutional right or
“suspect” class (such as race or religion), nor any other enumerated
class such as birth, age, sex, culture, or political affiliation, is alleged
as the basis for discrimination, the use of another classification is
subject to the minimal or lowest level of scrutiny under the guarantees
of both constitutions. American International Gaming Association,
00–2864 at p. 15, 838 So.2d at 17. Such a classification is
unconstitutional only if proven to be not rationally related to any
legitimate state interest. Progressive Security Insurance Company,
97–2985 at pp. 18–19, 711 So.2d at 686.

Johansen v. Louisiana High Sch. Athletic Ass’n, 04-0937, pp. 9-10 (La.App. 1 Cir.

6/29/05), 916 So.2d 1081, 1088-89.

In its reasons for judgment, the trial court found that the Davenports had not

been singled out by the City for “discriminatory application of the City Code.”

The City, after receiving the complaint from Ms. Laurent, was required to respond

and address the violation of the five-foot setback required under the ordinance in

effect, Alexandria, Louisiana, Code of Ordinances 28-3.7(E)(2). Additionally, the

court stated, “I do not find that there was a -- discriminatory application of the City

Code by the defendant. They didn’t drive up and down the street and see this and

decide we’re going to mess with the Davenports.”

The trial court also found that, had the City failed to respond to the

complaint made by Ms. Laurent, and had the Davenport’s house caught fire and

spread to the neighbor’s house, “the City would be responsible, or would be liable

for any damages that she would have received along with Mr. Davenport.” The

trial court recognized the City’s responsibility, pursuant to La.R.S. 33:101 et seq.

and La.R.S. 33:4721 et seq., to promote the health, safety, convenience, and

13

general welfare of the City’s residents and stated, “So, when you live in the city

with a bunch of houses, this is obviously part of the police power that the city can

use to try and prevent fires in the city.”

The Davenports do not fall into any of the protected classes that have a

fundamental or express constitutional right. Therefore, their claims are subject to

“the minimal or lowest level of scrutiny,” and are “unconstitutional only if proven

to be not rationally related to any legitimate state interest.” Progressive Security

Ins. Co. v. Foster, 97-2985, pp. 18-19 (La. 4/23/98), 711 So.2d 675, 686. The trial

court correctly found that the protection of the residents of a city from an

additional threat of fire is per se a “legitimate state interest,” which could not be

ignored by the City. Id. Thus, we also affirm the trial court’s ruling denying the

Davenports’ claims of discrimination and the unconstitutional application of the

Alexandria, Louisiana, Code of Ordinances and find their assignments of error four

and five to be without merit.

The City’s Assignment of Error

In its assignment of error, the City asserts that the trial court erred in crafting

an alternative judgment which would have allowed the Davenports “only to tear

out the portions of the offending structure to the five-foot line and not abating the

entirety of the structure.” At oral argument, in responding to questioning by the

panel, the City requested that the mandatory injunction granted by the trial court in

its April 4, 2014 judgment be affirmed, which requires the Davenports to remove

the addition to their home, attached as Exhibit A to the trial court’s judgment.

The Davenports failed to comply by June 27, 2014, the deadline stated in the

trial court’s alternative judgment. This is unfortunate as the trial court expended

considerable time and effort in seeking to reach a compromise that would satisfy

14

both parties, comport with the law, and result in reduced costs and modifications to

the Davenport home.

This court is left with no other alternative than to find that the City’s request

has merit and thus we affirm that portion of the April 4, 2014 judgment of the trial

court granting the mandatory injunction filed by the City in reconvention, finding

that the alternative judgment of the trial court has been rendered moot.

The affirmation of the trial court’s judgment granting the City’s

reconventional demand for a mandatory injunction requires that the Davenports:

[S]hall abate and remove from the property located at 3025 Madonna
Drive and described as follows:

Lot “A” of the Subdivision of Lots 6, 7 and 8 of block 9
of Mimosa Place (as per plat recorded in CB 425-529),
Alexandria, Rapides Parish, Louisiana as per PB 5-119,
records of Rapides Parish Louisiana.

As recorded at Conveyance Book 718 Page 661, Entry No. 551566,
on or before June 27, 2014 all building materials, including but not
limited to lumber, decking, shingles, plywood and insulation, which
was incorporated into the addition to the home since February, 2011
as shown in the area highlighted in gray on Exhibit A, attached hereto
and made part of this Judgment.

Due to the appeal, the June 27, 2014 date has expired. We, therefore,

remand the case to the trial court for a date to be fixed for the Davenports to

comply with the mandatory injunction in accordance with the judgment of the trial

court and consistent with this court’s ruling.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment granting the

City of Alexandria’s mandatory injunction against Thomas D. Davenport, Sr. and

Dinah Lachney Davenport ordering abatement of the entirety of the structure

attached as Exhibit A to the trial court’s judgment. We also remand the case to the

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trial court for a date to be fixed for the Davenports to comply with the mandatory

injunction in accordance with the judgment and in accordance with this court’s

ruling. Costs of this appeal are assessed to Thomas D. Davenport, Sr. and Dinah

Lachney Davenport.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—
Courts of Appeal, Rule 2–16.3.

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