Succession of Allen L.smith,jr. v. Keith Alan Portie

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-183 consolidated with 19-409

SUCCESSION OF ALLEN L. SMITH, JR.

VERSUS

KEITH ALAN PORTIE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-4038
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AFFIRMED.

Kenneth Michael Wright
203 West Clarence Street
Lake Charles, LA 70601
Telepohone: (337) 439-6930
COUNSEL FOR:
Defendant/Appellant – Keith Alan Portie

Christopher E. John
City of Lake Charles Legal Department
P. O. Box 900
Lake Charles, LA 70602-0900
Telephone: (337) 491-1547
COUNSEL FOR:
Defendant/Appellee – City of Lake Charles

Timothy O’Dowd
Jared W. Shumaker
O’Dowd Law Firm LLC
924 Hodges Street
Lake Charles, LA 70601
Telephone: (337) 310-2304
COUNSEL FOR:
Plaintiff/Appellee – Shirley Smith

THIBODEAUX, Chief Judge.

This case arises out of a dispute between two adjacent landowners

regarding a five-foot strip of land which forms a border between the property owned

by Plaintiff, Shirley Smith,1 and the property owned by Defendant, Keith Alan

Portie. The strip of land between the two properties was dedicated as a public

drainage servitude and accepted by the City of Lake Charles via Resolution Number

366 on February 20, 1952. The strip of land, or five-foot drainage, remained bare

land until August 21, 2015, when Mr. Portie purchased Lot 26 and placed drainage

pipes, cement barriers, and truck loads of dirt on the strip of land. Ms. Smith alleges

that Mr. Portie’s actions violated subdivision restrictions which prohibit certain

improvements from being made on the five-foot strip of land. Ms. Smith claims that

Mr. Portie’s actions resulted in drainage problems on her property. The drainage

damaged her property and interfered with her enjoyment of use of the property.

On December 11, 2018, the trial court granted Ms. Smith’s motion for

a preliminary injunction and ordered Mr. Portie to stop draining his property onto

Ms. Smith’s property, to stop interfering with Ms. Smith’s drainage across the five-

foot strip of land at issue, and to stop increasing the drainage burden on Ms. Smith’s

property.

I.

ISSUES

We will consider:

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When the original petition was filed, the plaintiff in this case was the Succession of Allen
Smith, Jr.; however, Shirley Smith was subsequently substituted as the party plaintiff.

(1) whether the trial court erred as a matter of law in
issuing a preliminary injunction with vague and
mandatory language; and

(2) whether an alleged violation of Louisiana Civil
Code Article 667 is a violation of a “prohibitory
law” relieving Shirley Smith of the burden of
proving irreparable injury.

II.

FACTS AND PROCEDURAL HISTORY

Ms. Smith is the owner of Lot 27 of the Charles O. Noble Subdivision

of Lots 4 and 5 of W.W. Blackman Subdivision. Mr. Portie owns Lot 26 of Charles

O. Noble Subdivision. Two plats of the Charles O. Noble Subdivision were filed on

December 26, 1951. The first plat was recorded in Plat Book 6, page 108, bearing

Clerk’s file number 516678, and the second was recorded in Plat Book 6, page 126,

bearing Clerk’s file number 522940. On February 20, 1952, the City of Lake Charles

adopted Resolution Number 366. The dedication of the first plat states that the street

in the subdivision of Lot 4 and 5 of the W.W. Blackman Sub. of Lot Section 13,

T10S – R 9W is dedicated to public use. The dedication of the second plat added

the five-foot strip of land between Lots 26 and 27 for drainage.

Additionally, the City of Lake Charles accepted the subdivision through

a resolution and declared that all streets and/or avenues shown on the plat were

thereby declared public property. The resolution further provided that the City of

Lake Charles accepted the five-foot drainage easement for public use. The

resolution also stated that if any interested property owner desired to install, maintain

or improve the drainage of said easement, it must be done with the consent and

approval of the City Council.

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Prior to Mr. Portie purchasing Lot 26 in the Charles O. Noble

Subdivision, the five-foot strip of land between Lots 26 and 27 was vacant. The

clear space allowed water to flow west, down a slope into Contraband Bayou from

Lots 26 and 27 and from the remainder of the subdivision. After Mr. Portie

purchased the lot, he began placing pipe, hauling cement barriers and truck loads of

dirt onto the five-foot strip of land. Subsequently, the drainage between Lots 26 and

27 was obstructed.

As a result, Ms. Smith filed a petition on October 6, 2015, which

sought, among other relief, injunctive relief. The trial court initially granted a

temporary restraining order (TRO), and at a hearing on December 21, 2015, the TRO

was dissolved. Ms. Smith filed a motion for preliminary injunction which the trial

court heard on June 25, 2018. Prior to the judgment being signed, there was an

objection to its proposed wording and a request for reconsideration or a new trial on

the preliminary injunction. The trial court reconsidered its ruling at an October 29,

2018 hearing, then rendered written reasons for the judgment on December 11, 2018.

On December 12, 2018, Mr. Portie filed a motion and order for suspensive appeal

and the record for that appeal was lodged in this court on March 8, 2019, under this

court’s docket number CA 19-183.

Prior to the rendering of Judgment on Ms. Smith’s preliminary

injunction, on November 30, 2018, Mr. Portie filed a motion for partial summary

judgment. The trial court heard the motion on February 4, 2019, and signed the

judgment denying the partial summary judgment on February 5, 2019. In denying

the summary judgment, the trial court found that the five-foot servitude for drainage

was owned by the City of Lake Charles and had not lapsed by liberative prescription.

Mr. Portie filed an order for devolutive appeal on February 6, 2019, alleging the trial

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court erred in failing to grant the partial summary judgment. The February 6, 2019

devolutive appeal record was lodged in this court on June 4, 2019, under appeal

number CA 19-409. We converted that proposed appeal into a supervisory writ.

This court consolidated appeal numbers CA 19-183 and CA 19-409. On its own

motion, this court dismissed the writ under docket number 19-409.

III.

STANDARD OF REVIEW

The issuance of a preliminary injunction will not be disturbed on appeal

absent a clear abuse of discretion. Vartech Sys., Inc. v. Hayden, 05-2499 (La.App.

1 Cir. 12/20/06), 951 So.2d 247.

IV.

LAW AND DISCUSSION

Pursuant to La.Code Civ.P. art. 3601, “[a]n injunction shall be issued

in cases where irreparable injury, loss, or damage may otherwise result to the

applicant[.]” “A moving party is generally entitled to issuance of a preliminary

injunction only if he proves the existence of three elements: (1) that the injury, loss,

or damage he will suffer if the injunction is not issued may be irreparable; (2) that

he is entitled to the relief sought; and (3) that he will be likely to prevail on the merits

of the case.” St. Raymond v. City of New Orleans, 99-2438, p. 3 (La.App. 4 Cir.

5/17/00), 769 So.2d 562, 564 rehearing denied 99-2438 (La.App. 4 Cir. 8/2/00) 775

So.2d 31, writ denied 00-2565 (La. 9/13/00) 767 So.2d 697.

A “preliminary injunction requires less proof than is required in an

ordinary proceeding for permanent injunction and the trial court has great discretion

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to grant or deny a preliminary injunction.” Breaud v. Amato, 94-1054, p. 5 (La.App.

5 Cir. 5/30/95), 657 So.2d 1337, 1339.

For the purpose of determining injunctive relief, “irreparable harm”

generally means loss that cannot be adequately compensated in money damages or

measured by pecuniary standard. Robbins v. State, Through State Land Office, 97-

671 (La.App. 3 Cir. 12/17/97), 704 So.2d 961, writ denied 98-176 (La. 3/20/98), 715

So.2d 1214 (quoting Star Enter. v. State, Through Dep’t Of Revenue and Taxation,

95-1980, 95-1981, 95-1982, p. 13 (La.App. 1 Cir. 6/28/96), 676 So.2d 827, 834, writ

denied, 96-1983 [(La. 3/14/97)], 689 So.2d 1383). While the trial court has broad

discretion in deciding whether to grant injunctive relief, injunction is an

extraordinary remedy and should only issue where the party seeking relief is

threatened with irreparable loss without adequate remedy at law. Licfro, Inc. v.

State, ex rel. Dep’t of Revenue, Office of Alcohol & Tobacco Control, 03-737

(La.App. 4 Cir. 10/1/03), 859 So.2d 739.

Mr. Portie contends that the trial court did not make any factual findings

that Ms. Smith suffered irreparable injury. However, upon review of the record, we

note that the trial court cited various testimonies and exhibits to support its finding

that Ms. Smith suffered irreparable harm. The trial court found that after Mr. Portie

began construction for the improvement of Lot 26, there were changes in the

drainage of Lot 26 and 27. Specifically, the trial court found that Ms. Smith’s

Exhibit P-9 shows that rainwater from Mr. Portie’s house would run across the

concrete wall that was installed by Mr. Portie, instead of the five-foot drainage,

ultimately causing drainage issues on Ms. Smith’s property.

Additionally, the trial court noted Ms. Smith’s testimony in which she

stated that the changes in drainage continuously caused her distress. Ms. Smith also

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stated Mr. Portie’s construction caused water to accumulate in her yard after heavy

rains. Ms. Smith’s testimony was buttressed by the testimony of Johnny Bennett,

who had been tending to Ms. Smith’s property for approximately thirty years. At

the hearing, the trial court found Mr. Bennett to be a credible witness. Mr. Bennett

stated that Ms. Smith’s property has changed since Mr. Portie purchased Lot 26. Mr.

Bennett noticed that since the construction on Lot 26, Ms. Smith’s property remained

saturated with water after heavy rains. Mr. Bennett specifically stated that before

Mr. Portie began construction on Lot 26, he never had a problem mowing Ms.

Smith’s yard. However, after the construction had taken place, Mr. Bennett was

unable to mow out of concern of becoming bogged in the inundated yard.

We find that the trial court was not manifestly erroneous in its

conclusion. Ms. Smith was deprived of the enjoyment of use of her land due to Mr.

Portie’s actions. Additionally, based on our review of the jurisprudence, we agree

with the trial court’s finding that Ms. Smith’s deprivation of enjoyment is not

measurable by a pecuniary standard.

In Livingston Parish Police Jury v. Smith, 442 So.2d 529 (La.App. 1

Cir. 11/22/83), the police jury sought an injunction to prohibit a landowner from

draining his property in a certain manner because his drainage deprived the Parish

enjoyment of its property. The defendant presented testimony of a civil engineering

expert. The civil engineer testified that the resulting damage to the property caused

by standing water could be repaired at a cost of $500.00 to $1,000.00. However, the

court also found that due to the continuing nature of the harm, the damage could not

be adequately compensated monetarily.

Similarly, in this case the drainage issue causing damage may be

repairable. The continuing nature of the deprivation of the enjoyment of Ms. Smith’s

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land, however, cannot be adequately measured.2 “Preliminary injunctions may be

entered prior to trial on the merits in order to protect the applicant from irreparable

injury during the pendency of the action.” S. Cent. Bell Tel. Co. v. Louisiana Pub.

Ser. Comm’n, 555 So.2d 1372 (La.1990). Therefore, Ms. Smith has met her burden

of proving irreparable injury.

Furthermore, we reject Mr. Portie’s contention that the injunction fails

to specify the acts sought to be prohibited contrary to the requirements of La.Code

Civ.P. art. 3605, which provides:

An order granting either a preliminary or a final
injunction or a temporary restraining order shall describe
in reasonable detail, and not by mere reference to the
petition or other documents, the act or acts sought to be
restrained. The order shall be effective against the parties
restrained, their officers, agents, employees, and counsel,
and those persons in active concert or participation with
them, from the time they receive actual knowledge of the
order by personal service or otherwise.

In Patin v. Richard, 357 So.2d 1285 (La.App. 3 Cir. 1978), the plaintiff

and the defendant were owners of adjoining campsites. First, the plaintiff filed a suit

against the defendant seeking a right of passage across the defendant’s property. A

right of passage was granted to the plaintiff along the west twelve feet of the

defendant’s property. Subsequently, the plaintiff filed another suit alleging that the

defendant violated the previous judgment by digging a drainage ditch across the

servitude right-of-way. The plaintiff requested a preliminary injunction among other

relief. The trial court granted the preliminary injunction and the defendant appealed

the order. Like Mr. Portie, the defendant in Patin asserted that the order granting

the injunction failed to apprise him of the acts sought to be restrained.

2
We, therefore, pretermit a decision on whether La.Civ.Code art. 667 is a prohibitory law
which would make a finding of irreparable harm unnecessary.

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Importantly, the order in Patin stated the following:

IT IS FURTHER ORDERED that the Rule for a
Preliminary Writ of Injunction filed herein by Austin J.
Patin be, and it is hereby made absolute and, accordingly,
IT IS ORDERED that a preliminary writ of injunction
issue herein enjoining, restraining and prohibiting Dennis
S. Richard from digging up, excavating or in any manner
whatsoever interfering with whatever rights plaintiff,
Austin J. Patin, may be entitled under the Judgment in this
proceeding previously rendered herein on March 3, 1975;
the said preliminary writ of injunction to issue herein upon
plaintiff furnishing bond in the amount of FIVE
HUNDRED DOLLARS ($500) in accordance with law.

Patin, 357 So.2d at 1287.

In Patin, this court found that the trial court’s order plainly enjoined the

defendant from engaging in any activity or erecting any work that would interfere or

prevent the plaintiff from exercising his servitude of passage.

In this case, the trial court’s December 12, 2018 order specifically

states:

IT IS FURTHER ORDERED that a preliminary
injunction issue in favor of Shirley Smith and against
Keith Portie, cease and desist draining his property onto
Shirley Smith’s property, cease and desist the
circumstances that are interfering with Shirley Smith’s
property from draining across what has been referred to as
the five foot easement, and cease and desist from
otherwise increasing the drainage burden on Shirley
Smith’s property.

Therefore, we cannot say that the trial court’s order in this suit is vague

or fails to specify the acts sought to be prohibited.

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V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Costs are assessed to Keith Alan Portie.

AFFIRMED.

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