Kevin O'Connor and Blair O'Connor v. the Grove Homeowners Association

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-676

KEVIN O’CONNOR, ET UX

VERSUS

THE GROVE HOMEOWNERS ASSOCIATION, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2018-5446, DIVISON “D”
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Van H. Kyzar, and
Jonathan W. Perry, Judges.

REVERSED AND RENDERED.

John A. Mouton, III
Post Office Box 82438
Lafayette, Louisiana 70598-2438
(337) 988-6499
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Kevin and Blair O’Connor

Thomas R. Hightower, Jr.
Wade Kee
Thomas R. Hightower, III
Charles T. Texada, Jr.
Law Offices of Thomas R. Hightower, Jr., APLC
Post Office Drawer 51288
Lafayette, Louisiana 70505
(337) 233-0555
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Kevin and Blair O’Connor

Jack E. Truitt
Lou Anne Milliman
Michelle Mayne Davis
Nancy N. Butcher
Lauren A. Duncan
Jonathan M. Lee
The Truitt Law Firm, LLC
149 North New Hampshire Street
Covington, Louisiana 70433
(985) 327-5266
COUNSEL FOR DEFENDANTS/APPELLEES:
The Hidden Grove Homeowners Association, Inc. and
Hidden Grove, LLC

Doris T. Bobadilla
Megan M. Clark
Galloway, Johnson, Tompkins, Burr & Smith, APLC
328 Settlers Trace Boulevard
Lafayette, Louisiana 70508
(337) 735-1760
COUNSEL FOR DEFENDANTS/APPELLEES:
Thomas F. Desormeaux, Kendra Desormeaux, Karen Lee Hail,
Cesar Augusto Ramirez-Astacio, Brittany Deshotel Ramirez,
Stephen Deval Gremillion, Linda Lou Hill Gremillion, Thomas
Kirby Arceneaux, Ross Kenneth LeBlanc, Erin Elizabeth Zuschlag
LeBlanc, James A. Chance, Terence R. Chapman, Andrea Bertinot
Chapman, Mark Blaine Chaisson, Tiffany Zerangue Chaisson,
Margaret “Pegge” Luken Alciatore, Douglas Terrence Ryan, Erin
Kennedy Ryan, Richard Andrew Brauns, Leslie Donner Brauns,
J.W. Digiglia, and Lea Raye Digiglia

Travis J. Broussard
Durio, McGoffin, Stagg
Post Office Box 51308
Lafayette, Louisiana 70505-1308
(337) 233-0300
COUNSEL FOR DEFENDANT/APPELLEE:
Thomas Kirby Arceneaux

PERRY, Judge.

Plaintiffs appeal the issuance of a permanent injunction against them in favor

of Defendants. For the following reasons, the judgment of the trial court is reversed.

We render judgment (1) issuing a preliminary injunction in favor of Plaintiffs against

Defendants and (2) denying Defendants’ petitions for injunctive relief.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Kevin and Blair O’Connor (“Plaintiffs”), are the owners of property

located at 805 Cambridge Drive in Lafayette, Louisiana, having purchased the

property from Kevin O’Connor’s parents in 2010. Plaintiffs’ property, situated near

the Vermilion River, is bordered by a coulee on its northern and eastern sides.

Across the coulee from Plaintiffs’ property lies the Hidden Grove Subdivision (“The

Grove”). Access to The Grove is facilitated by a bridge which spans the coulee, the

center of which serves as the boundary between Plaintiffs’ property and The Grove.

Access to the bridge is afforded by a predial servitude1 which extends from

Cambridge Drive to the property line of The Grove. A private road named Hidden

Grove Place signifies the right of way between Cambridge Drive, a public street, and

1
The Act of Credit Sale between Plaintiffs’ ancestors in title which established the predial
servitude on November 15, 1976, provides in pertinent part:

Vendor does expressly grant and dedicate unto purchasers, their heirs, successors,
and/or assigns, a fifty foot (50') road right-of-way, easement and/or servitude over
vendor’s remaining property to purchasers’ above described and foregoing
property, which road right-of-way will commence from purchasers’ property and
run in a northwesterly direction over a concrete bridge (measuring approximately
36' x 12'), thence in a westerly direction a distance of approximately 122 feet (which
122 feet shall run immediately South of, and parallel to, vendor’s four foot chain
linked wire fence imbedded in a narrow concrete wall) and will traverse vendor’s
concrete retaining wall and/or swail ditch, and shall then run in a northwesterly
direction (immediately south of, and parallel to, said vendor’s concrete retaining
wall and/or swail ditch) to a point where said road right-of-way shall intersect and
join University Row.

That certain 36 foot by 12 foot concrete bridge (indicated on the above described
plat) over the concrete coulee and/or drainage canal connecting the above described
property with a fifty foot access easement, road right-of-way, and or servitude more
fully described herein.

the bridge which spans the coulee. A dispute over the scope of the servitude which

encumbers Plaintiffs’ property is the basis for this litigation.

On August 31, 2018, Plaintiffs filed a petition for declaratory judgment

seeking a judicial determination about the extent of the predial servitude established

in 1976 which encumbers their property. Named Defendants herein are: (1) Hidden

Grove, LLC, the developer of The Grove; (2) The Hidden Grove Homeowners’

Association (“the HOA”), a non-profit organization established for the purpose of

maintaining the common areas of The Grove; and the owners of all lots in The

Grove, namely, (3) Thomas F. Desormeaux; (4) Kendra Desormeaux; (5) Karen Lee

Hail; (6) Cesar Augusto Ramirez-Astacio; (7) Brittany Deshotel Ramirez;

(8) Stephen Deval Gremillion; (9) Linda Lou Hill Gremillion; (10) Thomas Kirby

Arceneaux; (11) Ross Kenneth LeBlanc; (12) Erin Elizabeth Zuschlag LeBlanc;

(13) James A. Chance; (14) Terence R. Chapman; (15) Andrea Bertinot Chapman;

(16) Mark Blaine Chaisson; (17) Tiffany Zerangue Chaisson; (18) Margaret “Pegge”

Luken Alciatore; (19) Douglas Terrence Ryan; (20) Erin Kennedy Ryan;

(21) Richard Andrew Brauns; (22) Leslie Donner Brauns; (23) J.W. Digiglia; and

(24) Lea Raye Digiglia (henceforth the twenty-two lot owners will be collectively

referred to as “the homeowner Defendants”).

Plaintiffs contend the servitude grants Defendants a right of way which is

limited to ingress and egress and allege Defendants’ actions exceed the right granted

by the servitude, violating Plaintiffs’ property rights in the process. Defendants

contend Plaintiffs unlawfully restrict their use of the right of way.

The instant appeal concerns opposing requests for injunctive relief.

Defendants filed petitions2 for temporary restraining order and preliminary and

2
Hidden Grove, LLC, and the HOA filed a petition and the homeowner Defendants filed
a separate petition for injunctive relief, pleading corresponding allegations.

2

permanent injunctive relief. In said petitions, Defendants allege Plaintiffs have

interfered with repairs to an electronic gate and a gas lantern, and have destroyed

improvements made by Defendants, i.e., trees, all of which are located on the right

of way.

The hearing on Defendants’ temporary restraining order, on March 18, 2019,

concluded with the trial court stating it would visit the right of way. Additionally,

the trial court specified it would consider Defendants’ request for a preliminary

injunction on April 8, 2019.

On April 3, 2019, Plaintiffs filed their own petition for temporary restraining

order and injunctive relief in which they sought to enjoin Defendants from harassing

them, threatening them, and trespassing on property which lies outside the right of

way in dispute. The record indicates Plaintiffs’ petition for injunctive relief was also

set for hearing on April 8, 2019.

The hearing on April 8, 2019, began with arguments from counsel, after which

the trial court pronounced it would issue to Defendants’ a permanent injunction.

Counsel for Plaintiffs objected, urging that only a hearing on preliminary injunctions

was noticed. The trial court allowed the parties to present evidence following a

suggestion by counsel3 for one of the homeowner Defendants.

Thereafter, Defendants called a single witness to testify. Karen Hail, who

owns a home in The Grove, testified her first recollection of there being a conflict

with Plaintiffs was in October 2017. Ms. Hail recalled Plaintiffs being “upset about

some things that had gone on with the third-party contractor” who was installing a

bulkhead. According to Ms. Hail, “that was the first time, I think, I had heard from

[Mr. O’Connor] about the walls of the bridge, and that we hadn’t used a licensed

3
Defense counsel Travis Broussard, whom the record reflects is enrolled as counsel for
one homeowner Defendant, Thomas Kirby Arceneaux, suggested, “Your Honor, we can resolve it
by putting two witnesses on the stand and Your Honor can enter a permanent injunction.”

3

contractor, and that it hadn’t been approved by the City and things like that.” In

August 2018, a contractor who was working on Ms. Hail’s home parked a lift

“probably halfway on the right of way for the O’Connors and halfway on where the

City property is.” She recalled receiving a telephone call from her attorney

indicating that Plaintiffs’ attorney “want[ed] to know when [the lift was] going to be

moved from the street.” Also in August 2018, the day before Plaintiffs filed the

instant lawsuit, Ms. Hail spoke with Mr. O’Connor about having the grass cut on the

City’s property near the right of way. She described, “[H]e and I just had -- probably

-- I say -- not -- it was just a good conversation about doing that.” Ms. Hail described

an incident, which occurred on February 10, 2019, when she was with three other

homeowner Defendants who were attempting to repair the motor of an electronic

gate at The Grove’s entrance, on the right of way. Ms. Hail testified Plaintiffs

threatened to cut landscaping if homeowner Defendants did not stop working on the

electronic gate. Homeowner Defendants did not stop working, and Plaintiffs cut

down several crepe myrtle trees which were less than ten feet from the electronic

gate. The final incident Ms. Hail described occurred two days later, on February 12,

2019, when Plaintiffs used a tractor to remove The Grove’s marble sign, placing it

at the corner of Cambridge Drive and Hidden Grove Place.

On cross examination, Ms. Hail testified she has read the right-of-way

agreement dated 1976 and acknowledged it did not provide for landscaping, gas

lines, gas lanterns, or a gate. She explained The Grove has two electronic gates, one

for entrance and one for exit, and conceded that occasionally the electronic

entrance-gate malfunctions, requiring the electronic exit-gate to serve as both an

entry to and exit from The Grove. Ms. Hail declared she considered it harassment

for Plaintiffs’ attorney to call her attorney, who then called her, in reference to the

lift that had been parked on the right of way by a contractor she hired in August

4

2018. Finally, Ms. Hail testified there was no harassment when she conversed with

Mr. O’Connor about having the grass cut on the City’s property in August 2018.

On redirect examination, Ms. Hail testified the personnel who were previously

hired to repair the electronic gates no longer wanted to be hired “because of their

dealings with Mr. O’Connor[.]” She also claimed, though she was not the individual

responsible, that it was her understanding Plaintiffs were provided the information

they requested regarding insurance for the contractor who worked on the bridge and

the bulkhead.

Both Plaintiffs, Kevin and Blair O’Connor, testified concerning harassment

and intimidation directed toward them by Defendants. Mr. O’Connor explained he

and his wife were seeking an injunction against Defendants because their property

rights were being ignored.

According to Mr. O’Connor, in fall 2017, he noticed construction work being

performed on the bridge crossing the coulee, property of which Plaintiffs own half.

He initially assumed the work was being performed by the Lafayette City-Parish

Consolidated Government (“LCG”). After speaking to construction workers,

however, Mr. O’Connor learned the workers were not LCG employees and, instead,

were hired by Steve Gremillion, a homeowner Defendant. Plaintiffs had not been

given notice of the work on the bridge crossing the coulee by Defendants.

Mr. O’Connor deduced that unlicensed contractors were performing the work

without permits. A certified letter, dated October 4, 2017, was sent from the Public

Works Department of LCG notifying Steve Gremillion that, “LCG has not received

the appropriate engineering analyses and construction plan for the construction

activities being performed within this area. Therefore, in accordance with NFIP

5

FEMA regulations, LGC requires a Cease and Desist of both[4] construction activities

until further notice.”

Mr. O’Connor claimed he was informed by LCG that as an owner of a portion

of the property on which the unsanctioned construction work occurred, he could be

financially responsible for any necessary repairs. He stated Defendants had verbally

“offered hold harmless agreements” to absolve Plaintiffs of financial liability, but

no written agreement had been attained. Mr. O’Connor testified he was particularly

concerned because subsequent to the construction in 2017, cracks had formed in the

coulee walls on his property.

Mr. O’Connor testified the right-of-way agreement dated 1976 contains no

provisions for landscaping, gas lines, or gas lanterns. He recalled the gate was

erected around the time The Grove was developed, in either 2001 or 2002,

recollecting, “I grew up on that property and it was not there in the late ‘90s.”

Mr. O’Connor further acknowledged there was a period of time when there was a

peaceful coexistence with Defendants. In fact, Mr. O’Connor sent a letter to Jeffrey

Gossen, a registered agent for Hidden Grove, LLC, in May 2010 which stated:

“[Y]ou have my permission to landscape the sections of my property to either side

of your entrance gate at your expense. I will notify you in writing if our landscaping

needs change and this arrangement will no longer be in our best interest.” On

October 2, 2017, in light of the construction done without his knowledge,

Mr. O’Connor sent electronic mail to Steve Gremillion withdrawing the permission

to landscape and requesting a new written agreement. Mr. O’Connor explained he

sent two attachments with his email, “giving the Grove possibilities for continuing

4
The letter, introduced into evidence as Plaintiffs’ Exhibit Number Four, specifically
references “the ongoing construction of 1) a bulkhead along the Vermillion [sic] River and 2)
concrete abutments under the private bridge crossing the Rena Drive Coulee at Hidden Grove
Place, directly atop existing LCG maintained trapezoidal concrete walls.”

6

to work on the gate, landscaping and everything else within certain parameters[.]”

However, because “[n]either of those documents were ever sent back[,]” the decision

was made “to not allow contractors on our property, unless we were specifically

hiring them.” Mr. O’Connor conceded Defendants twice presented proof of liability

insurance—once for a company owned by Mark Chaisson, a homeowner

Defendant—however, he was never provided proof of workers’ compensation

insurance.

Mr. O’Connor testified he has been subjected to harassment and intimidation.

While in his yard with his six-year old daughter on February 14, 2019, a man who

identified himself as a resident of The Grove, drove out The Grove’s gate, parked,

and yelled profanities at Mr. O’Connor.5 Mr. O’Connor recalled a woman, whom

he believed lives in Lot 14 of The Grove, “landscaping outside of the gated area on

[his] property.” He confronted the woman, asking if he could help her. The woman

fled and called the police on Mr. O’Connor.

After Mr. O’Connor removed trees from his property, residents of The Grove

called the police, falsely accusing him of trying to cut down the gas lantern at The

Grove’s gate.6 On another occasion, while work was being performed on a bulkhead

in The Grove, a construction worker was cutting beams on Mr. O’Connor’s property.

He told the worker that he did not have permission to be on Mr. O’Connor’s

property. The worker “had an expletive-laced tirade [and Mr. O’Connor] was

surrounded by five individuals threatening to beat [him] up.”

5
Photographs of a truck parked in front of Plaintiffs’ gate were introduced into evidence
as Plaintiffs’ Exhibit Number Thirteen.
6
Surveillance photographs introduced into evidence as Plaintiffs’ Exhibit Number 11
indicate this occurred on February 19, 2019. Photographs, though undated, which show
Mr. O’Connor cutting a tree with a chainsaw, were also introduced into evidence as Defendants’
Exhibit Number Three.

7

Mr. O’Connor presented surveillance photographs from March 2, 2019,

showing a man and the woman who called the police on Mr. O’Connor after he found

her landscaping on his property. The individuals walked around his property for five

minutes, repeatedly “staring in the camera[.]” Mr. O’Connor clarified that each of

the incidents he had described involved individuals trespassing on his private

property, not property which is subject to the right of way.

Mr. O’Connor denied ever interfering with anyone entering or leaving The

Grove, saying the electronic gates cause the only obstruction. The electronic gate at

the entrance of The Grove is on the right of way and, according to Mr. O’Connor, it

is often out of order. Mr. O’Connor testified that even though he has never blocked

The Grove’s entrance gate, his private driveway has been blocked by a truck

belonging to a landscaping company being utilized by residents of The Grove.7 He

also stated that the gas lantern at The Grove’s entrance is not the only light source.

Mr. O’Connor submitted photographs of an illuminated security light near The

Grove’s entrance gate. It was his observation the gas lantern is solely esthetic, not

utilitarian. Mr. O’Connor recalled his conversation with Ms. Hail as “quite

pleasant.” He also testified his family was living with his parents. According to

Mr. O’Connor, the incidents stemming from this lawsuit have caused his wife, Blair,

to suffer an emotional breakdown and her therapist recommended that the family

relocate.

On cross examination, Mr. O’Connor was quizzed about his knowledge of

engineering and concrete. Although he admitted he has not worked with concrete,

Mr. O’Connor explained he owns and manages apartment complexes and claimed

he is familiar with the “need to anchor something into the concrete.” Mr. O’Connor

7
Surveillance photographs of this incident were introduced into evidence as Plaintiffs’
Exhibit Number Seven.

8

has a bachelor’s degree in engineering science, but he is not a licensed engineer.

Mr. O’Connor conceded he has not hired an engineer, an architect, or a licensed

contractor to assess the structural integrity of the construction work on the bridge

crossing the coulee. His concerns are based on personal observations and the

concerns expressed in LCG’s cease and desist letter.

Mr. O’Connor was questioned about the following statement from his email

to Steve Gremillion on October 2, 2017: “By law, the rights of use The Grove holds

over property I own are restricted to a private access easement unless we enter into

a separate agreement.” His understanding of the access easement came from his

reading of the right-of-way agreement dated 1976, but he is not an attorney and he

was not told by an attorney it was a true statement. Mr. O’Connor estimated that on

ten different occasions he spoke with contractors who were on his property while

purportedly performing work for residents of The Grove. On those occasions, he

simply identified himself as the property owner—he did not present proof of his

ownership nor was he asked for proof. Mr. O’Connor admitted he notified LCG that

construction work was being performed on the bridge crossing the coulee. He

contacted Mark Lavergne, an engineer employed by LCG, to report that

unauthorized people were constructing things on the coulee on his property.

Mr. O’Connor’s property was purchased from his parents in 2010. He

testified there was no written agreement concerning landscaping between his parents

and The Grove’s residents; however, soon after his acquisition of the property,

Mr. O’Connor granted permission for landscaping at the entrance gate of The Grove,

as shown in his letter to Jeffrey Gossen in May 2010. The first time Mr. O’Connor

said anything to the residents of The Grove about the entrance gate was in October

or November 2017. He denied ever saying anything about the gas lantern.

9

Mr. O’Connor installed eleven surveillance cameras in January 2019 to

monitor his property. At this point during cross examination, the trial court asked,

“Mr. O’Connor, when you talk about ‘your property,’ monitoring your property,

essentially you’re talking about monitoring the right of way?” When Mr. O’Connor

answered in the affirmative, the trial court posed more questions:

THE COURT: So basically, anybody traversing that right of way, it is
your feeling that you have a right to query them about whether
or not they have insurance . . . to do the work that a resident
would require? Or do you think you have the right to stop
everybody that’s driving down the street and say, hey, do you
have auto insurance?

MR. O’CONNOR: No, sir, I do not feel that way.

....

MR. BROUSSARD: Tell the Judge, what do you feel you have the
right to do, vis-a-vis professionals doing work for the residents
of the Grove, in that right of way?

MR. O’CONNOR: If they’re professionals performing work on my
property, my land, even on the right of way, I feel that I should
at least be aware of what they are doing, that they’re doing it
within codes, that they have the right permits and that they are
insured, especially given that we have had contractors who were
not licensed contractors, not insured and doing it without
permits.

When asked whether he knew of Stinson gate repair company, Mr. O’Connor

acknowledged he had used the gate repair service prior to this dispute, noting he

verified Stinson was, in fact, licensed and insured. He was then asked, “So you have

known all of this time that the company repairing that gate has the proper credentials,

haven’t you?” To which Mr. O’Connor replied, “No, sir, because, again, whenever

I utilized him he had insurance. But that had long since expired.” Mr. O’Connor

testified he contacted Stinson after this dispute arose, asking for current insurance

information. Although he was assured the information would be provided,

Mr. O’Connor never received the credentials he requested.

10

On redirect examination, Mr. O’Connor explained his awareness there were

engineering deficiencies in the structure erected on the bridge over the coulee came

from his copy of a certified letter sent to Steve Gremillion from Mark Lavergne with

the Public Works Department of LCG.8 He read aloud the following excerpt:

Therefore, LCG is requiring that the installed abutments be removed by
the individuals and/or parties responsible for constructing the
structures. A qualified engineer licensed within the State of Louisiana
must develop a plan to remove the abutments and submit to LCG for
review and approval prior to the commencing with the required
removal. Additionally, the engineer will be required to evaluate the
trapezoidal channel for potential and/or detectable damages associated
with the abatement installation. Any damages to the trapezoidal
concrete-lined channel must be repaired by the applicable individuals
or parties to the satisfaction of LCG.

Mr. O’Connor recapitulated that he lived on the property the majority of his life.

Although he purchased the property in 2010, he began living on the property with

his parents when he was one year old.

Plaintiff Blair O’Connor also testified she has been subjected to harassment

and intimidation. She claimed homeowner Defendants have threatened “they were

going to bury us in legal fees” and she felt “constantly approached by these

people[.]” In the summer of 2018, her sons were outside when a black truck with

tinted windows backed into her driveway. Mrs. O’Connor went outside and

approached the truck; however, when she walked forward the truck drove forward,

and when she stopped walking the truck also stopped. Ultimately, the truck drove

forward and parked on the street, across from the home’s driveway. After the truck

remained a short while, Mrs. O’Connor approached the truck again. The driver’s

window opened, revealing Mark Chaisson, a homeowner Defendant.

The letter, dated August 27, 2018, was introduced into evidence as Plaintiffs’ Exhibit
8

Number Fifteen.

11

Mrs. O’Connor clarified this incident began on her private property—her home’s

driveway—not her property which is subject to the right of way.

When asked if other instances occurred when she felt harassed or intimidated,

Mrs. O’Connor referred to February 19, 2019, the day Mr. O’Connor cut down trees

on the right of way near the entrance to The Grove. She recalled several of The

Grove’s residents were on the right of way while an electrician made repairs to The

Grove’s electronic entrance gate. According to Mrs. O’Connor, the homeowner

Defendants who were present “said that they were going to do what they thought

they had the right to do.” Consequently, the O’Connors decided to landscape.

Mrs. O’Connor testified that since Defendants obtained a temporary

restraining order against them, she is “scared that if I pull any weeds that they would

call the cops on us[.]” In April 2019, while she was planting flowers in her yard,

Mrs. O’Connor was watched for thirty minutes by someone in a black truck parked

on the right of way. Mrs. O’Connor testified she often feels anxious and helpless.

As a result, Mrs. O’Connor is living with her family at Mr. O’Connor’s parents’

home so she can “feel safe for a while[.]”

On cross examination, Mrs. O’Connor said she assumed, but could not

confirm, that Mark Chaisson was driving the black truck in April 2019. When asked

the reason for cutting down trees in the right of way, Mrs. O’Connor explained it

was in their plans to have a better visual of their property at the river’s front. She

stated the trees were planted when Defendants had written permission to landscape,

permission which had since been revoked. Finally, Mrs. O’Connor testified she did

not know whether the harassment she endured was authorized or approved by

Hidden Grove, LLC, or the HOA.

On redirect examination, Mrs. O’Connor clarified that the road through the

right of way, i.e., Hidden Grove Place, is a private road. She further stated it is her

12

understanding the right of way agreement does not provide for landscaping or

lighting.

Following this testimony, Plaintiffs motioned for an involuntary dismissal of

Defendants’ requests for injunctive relief, contending Defendants failed to prove any

irreparable harm. Plaintiffs asserted Ms. Hail’s “only testimony of harassment was

two attorneys talking to each other. She cited -- and the only instance of any

complaints she had was related to landscaping, which was outside of the right of way

agreement. There’s no -- she was never denied any ingress or egress.” Conversely,

Plaintiffs contended their evidence proved various instances of harassment and

intimidation by Defendants. The following dialogue succeeded Plaintiffs’ motion:

THE COURT: I’m going to deny it. Denied. Ms. O’Connor, I’m going
to show you these photographs, these photographs and ask you:
Do you recognize these photographs?[9]

MRS. O’CONNOR: Yes, sir.

THE COURT: Well, what do those photographs depict?

MRS. O’CONNOR: That’s me watching what trees are going to go
while Kevin’s cutting.

THE COURT: He’s cutting, essentially what looks to be a crepe
myrtle?

MRS. O’CONNOR: Yes, sir.

THE COURT: All right. Now, what authority did he have to cut those
crepe myrtles?

MRS. O’CONNOR: Because we had a landscaping agreement that we
reneged on; that we told them we no longer -- we had the ability
to take away, and so we were changing the landscaping. We cut
them down and we were replanting.

THE COURT: The landscaping agreement with whom?

MRS. O’CONNOR: Gossen.

9
It appears the trial court referred to photographs introduced into evidence as Defendants’
Exhibit Number Three.

13

THE COURT: What does Gossen have to do with this?

MRS. O’CONNOR: Gossen was with the Association. The
Association is my -- understanding is the one who’s responsible
for maintaining the access.

THE COURT: Okay. Anything else?

MR. BROUSSARD: We rest, Your Honor.

(WITNESS EXCUSED)

THE COURT: All right. The Court has before it competing
preliminary -- applications for preliminary injunctions. The
Court has listened attentively to both sides today. The Court was
not impressed with the testimony of the Plaintiff, so as to
constitute sufficient evidence to grant the preliminary injunction.
However, the Court was impressed with the testimony of the
Association member, and, as such, I’m going to grant the
preliminary injunction to the Association, and deny it for the
Plaintiff.

MR. BROUSSARD: Your Honor, I would only add that, as I recall,
what we did procedurally, here this morning, Your Honor, before
the testimony was inclined to grant the preliminary injunction,
and even the permanent injunction. And I had been under the
impression that Your Honor heard the testimony to allow Your
Honor to grant a permanent injunction and that’s why we put on
that testimony.

THE COURT: Well, we continued it the last time for preliminary
injunction. Mr. Hightower, it was reset for --

MR. HIGHTOWER: Preliminary injunction.

THE COURT: And permanent.

MR. MOUTON: No, Your Honor, not permanent. Your Honor, the
Court can’t grant a permanent injunction without a trial on the
merits and we haven’t conducted any significant discovery. And
this certainly wasn’t noticed as a trial on the merits; it’s on the
rule docket. We need to have an ordinary proceeding. And I’ve
got case law to . . . substantiate my argument.

THE COURT: Let’s see, it was set for permanent injunction as well.
Both[.]

MR. MOUTON: Your Honor, that’s an ordinary proceeding. This is a
summary proceeding. We’re entitled to a trial on the merits after
discovery and --

14

THE COURT: Well, we’ve heard witnesses from both sides.

MR. MOUTON: I understand, but --

MR. BROUSSARD: This is an ordinary proceeding, Your Honor --

THE COURT: One at a time.

MR. HIGHTOWER: This is not what you would hear in an ordinary
proceeding, Your Honor. There’s witnesses for the City that we
would call, otherwise. This is a summary proceeding. I’m sorry,
Mr. Mouton.

MR. MOUTON: It is a summary proceeding, and I’ve got a list of cases
here that basically say that the right to a permanent injunction
may only issue after a trial on the merits, which the burden of
proof is a preponderance of the evidence, where here you just
have to make a prima facie case for a preliminary injunction.

MR. BROUSSARD: Your Honor, it was an application for injunctive
relief filed within an ordinary proceeding, Your Honor. Your
Honor entered a preliminary injunction at the last hearing.[10]
These pictures have come about because there has been an
exchange of information in discovery, Your Honor.

MR. MOUTON: Your Honor, we have discovery outstanding.

MR. BROUSSARD: Your Honor has heard testimony --

MR. MOUTON: We’ve got discovery outstanding.

MR. HIGHTOWER: It’s nowhere near ready for an ordinary
proceeding, Your Honor.

THE COURT: Yes, but, Mr. Mouton, last week you all filed for a
preliminary and the Court allowed it as of last Thursday.

MR. MOUTON: For a preliminary injunction, not a permanent
injunction.

THE COURT: Well, which is again in violation of our local rules,
because this should have been at least 10 days for a hearing on
it.

MR. HIGHTOWER: Only two, Your Honor.

10
The record does not reflect the issuance of a preliminary injunction following the hearing
on March 18, 2019. The court’s minutes reflect: “The Court ordered that the current temporary
restraining order currently in place, shall remain in effect until April 8, 2019, at which time the
Court reset these matters to.”

15

MR. MOUTON: No. You have to have two to ten.[11]

MR. HIGHTOWER: Two to ten.

THE COURT: All right. Well, you’ve got my ruling now, so I’m going
to grant the permanent injunction. And if I’m wrong, take it up.

MR. MOUTON: We will, Your Honor.

MS. CLARK: Your Honor, I just have one brief clarification. You
stated that the association’s injunction is granted. Is that also the
homeowners in the individual capacity as well?

THE COURT: That’s correct.

A judgment in favor of Defendants was signed on April 24, 2019:

restraining, enjoining, and prohibiting [Plaintiffs] from obstructing,
interfering, harassing, verbally abusing, or threatening any person
coming onto the right-of-way for the purpose of repairing the gate,
located on or about Cambridge Drive, in Lafayette, Louisiana, in any
manner whatsoever; prohibiting [Plaintiffs] from interfering with
[Defendants’] attempts to repair the gas lantern that is also located on
the right of way; and prohibiting [Plaintiffs] from destroying any of
[Defendants’] improvements located on the servitude property,
including but not limited to the sign and landscaping at the entrance of
Hidden Grove Subdivision[.]

Plaintiffs now appeal, contending the trial court erred in granting injunctive

relief to Defendants and in denying injunctive relief to Plaintiffs.

ASSIGNMENTS OF ERROR

1. The trial court was clearly wrong and committed manifest error in
granting a permanent injunction within the context of a summary
proceeding, contrary to the dictates of Arco Oil & Gas v. DeShazer,
[98-1487 (La. 1/20/99), 728 So.2d 841]. Indeed, at the outset, the
trial court evidenced its desire to grant a permanent injunction
without even a formal hearing.

2. Alternatively, the trial court was clearly wrong and committed
manifest error in granting injunctive relief ab initio to Appellees
despite a lack of factual and legal basis to do so.

3. The trial court was clearly wrong and committed manifest error in
failing to grant preliminary injunction in favor of [the O’Connors]
11
Louisiana Code of Civil Procedure Article 3602 provides, “A preliminary injunction
shall not issue unless notice is given to the adverse party and an opportunity had for a hearing. An
application for a preliminary injunction shall be assigned for hearing not less than two nor more
than ten days after service of the notice.”

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after [the O’Connors] incontrovertibly demonstrated trespass on
their property free and clear of the right of way at issue, as well as
within the right of way after permission was revoked to perform
landscaping, maintenance on a gate, gas lighting and other activities
outside of the scope of the right of way.

DISCUSSION

Plaintiffs’ Motion to Strike

As a preliminary matter, we must address Plaintiffs’ motion to strike

statements made in Defendants’ appellate briefs. Action on this motion was referred

to the merits of this appeal.

Plaintiffs allege the homeowner Defendants’ appellate brief contains

“references to an attempt to repair an electronic gate and how it became inoperable”

and relies “upon statements [David Stinson] either made or was privy to.” Plaintiffs

assert the record contains no evidence to support the homeowner Defendants’

improper references because David Stinson did not testify at the hearing. They urge

this court to strike the second and third paragraphs contained in the “Statement of

the Case” of the homeowner Defendants’ appellate brief.

Plaintiffs further allege the appellate brief of Hidden Grove, LLC, and the

HOA references an affidavit of John Burke that was not introduced into evidence at

the hearing. Plaintiffs urge this court to strike the appellate brief of Hidden Grove,

LLC, and the HOA in its entirety “[a]s the improper and impermissible references

form the basis for the remainder of their argument.”

Plaintiffs argue that pursuant to La.Code Civ.P. arts. 2164, 2127,12 and 2128,13

this court is precluded from considering these statements which are not part of the

trial court record. We agree.

12
Louisiana Code of Civil Procedure Article 2127 provides, in pertinent part, “The clerk
of the trial court shall have the duty of preparing the record on appeal.”
13
Louisiana Code of Civil Procedure Article 2128 provides:

17

Under La.Code Civ.P. art. 2164, “The appellate court shall render any

judgment which is just, legal, and proper upon the record on appeal.” “Appellate

courts are courts of record and may not review evidence that is not in the appellate

record, or receive new evidence.” Fruge Aquafarms, Inc. v. Hicks, 16-1001, p. 7

(La.App. 3 Cir. 5/3/17), 218 So.3d 1106, 1111. “Evidence not properly and

officially offered and introduced into evidence cannot be considered, even if it is

physically placed in the record.” Id. at 1112. Furthermore, “[t]he appellate briefs

of the parties are not part of the record on appeal, and this court has no authority to

consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto,

if those facts are not in the record on appeal.” Chavers v. Bright Truck Leasing,

06-1011, p. 3 (La.App. 3 Cir. 12/6/06), 945 So.2d 838, 841, writ denied, 07-304

(La. 4/5/07), 954 So.2d 141.

At the hearing of the instant matter, the record revealed David Stinson did not

testify, nor was the affidavit of John Burke officially offered and introduced into

evidence. References to statements from either individual are therefore not properly

before this court for consideration. Consequently, this court grants Plaintiffs’

motion to strike with respect to Defendants’ aforementioned references to David

Stinson and John Burke—we do not rely on assertions concerning either individual

in our ruling.

The form and content of the record on appeal shall be in accordance with
the rules of the appellate court, except as provided in the constitution and as
provided in Article 2128.1. However, within three days, exclusive of holidays,
after taking the appeal the appellant may designate in a writing filed with the trial
court such portions of the record which he desires to constitute the record on appeal.
Within five days, exclusive of holidays, after service of a copy of this designation
on the other party, that party may also designate in a writing filed with the trial
court such other portions of the record as he considers necessary. In such cases the
clerk shall prepare the record on appeal as so directed, but a party or the trial court
may cause to be filed thereafter any omitted portion of the record as a supplemental
record. When no designation is made, the record shall be a transcript of all the
proceedings as well as all documents filed in the trial court.

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Issuance of Permanent Injunction

Louisiana Code of Civil Procedure Article 3601(A) provides, in pertinent part,

“An injunction shall be issued in cases where irreparable injury, loss, or damage may

otherwise result to the applicant, or in other cases specifically provided by law . . . .”

“During the pendency of an action for an injunction the court may issue a temporary

restraining order, a preliminary injunction, or both . . . .” La.Code Civ.P. art.

3601(C). “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.

La.Code Civ.P. art. 3601.” Arco, 728 So.2d at 843.

Plaintiffs argue the trial court erred in granting a permanent injunction within

the context of a summary proceeding. They allege the trial court evidenced its desire

to grant a permanent injunction at the outset, without even a formal hearing. We

find merit in Plaintiffs’ contention and, further, the record fully supports their

allegation.

A permanent injunction can only be granted, or denied, “after a trial on the

merits in which the burden of proof is a preponderance of the evidence . . . .” Mary

Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, p. 9 (La. 4/14/04), 875 So.2d 22,

29. The jurisprudence clearly states that in the absence of a stipulation between the

parties, a trial court cannot convert a preliminary hearing to a permanent injunction

hearing. Elysian Fields Church of Christ v. Dillon, 08-989 (La.App. 4 Cir. 3/18/09),

7 So.3d 1227. See also Nola Bourbon, LLC v. Rodriguez-Franco, 17-1002

(La.App. 4 Cir. 4/18/18), 243 So.3d 693, writ denied, 18-817 (La. 8/3/18), 248 So.3d

1288.

Significantly, after hearing only arguments of counsel on April 8, 2019, the

trial court tried to grant a permanent injunction. Counsel for Plaintiffs and two

different defense counsel reminded the trial court that it was deciding whether or not

19

to issue a preliminary injunction. A third defense counsel suggested the trial court

hear testimony in order to justify its issuance of a permanent injunction. Counsel

for Plaintiffs vehemently objected, to no avail. As set forth in detail above, the

parties presented evidence after which the trial court initially stated it would deny

Plaintiffs’ application for a preliminary injunction but grant Defendants’. The trial

court was reminded by a defense counsel that prior to hearing testimony, it had

indicated its intention was to issue a permanent injunction. Counsel for Plaintiffs

again objected, arguing the trial court was without authority to issue a permanent

injunction. Nevertheless, the trial court granted a permanent injunction in favor of

Defendants.

This matter was scheduled for consideration of opposing petitions for

preliminary injunctions. While the trial court allowed testimony, that does not

negate the intimation that it was predisposed to ruling in favor of Defendants prior

to the parties’ submission of evidence. Furthermore, changing the objective during

the hearing is in direct contravention to Plaintiffs’ notice rights. Prior to the hearing,

Plaintiffs were not notified of, nor did they agree at the hearing to consolidate the

trial on the merits of a permanent injunction and the rule of the preliminary

injunction. Consequently, we find the issuance of a permanent injunction was legal

error and, therefore, we reverse the judgment of the trial court. Given this finding,

this matter is subject to our de novo review of the trial court’s denials of the parties’

opposing applications for preliminary injunctions.

Preliminary Injunction

A party seeking the issuance of a preliminary injunction must show

irreparable injury, loss, or damage will occur if the injunction is not issued and must

show entitlement by a prima facie showing that the party has a good chance to

prevail on the merits of the case. Mount Zion Missionary Baptist Church v. Jones,

20

11-961 (La.App. 3 Cir. 2/1/12), 84 So.3d 674. A showing of irreparable injury is

not required “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.” Jurisich v. Jenkins,

99-076, p. 4 (La. 10/19/99), 749 So.2d 597, 599. As this court explained in El Paso

Field Serv., Inc. v. Minvielle, 03-1293, p. 9 (La.App. 3 Cir. 3/3/04), 867 So.2d 120,

127 (footnotes omitted):

[Louisiana Code of Civil Procedure Article] 3663 authorizes the trial
court to grant an injunction to protect a ROW if another obstructs or
disturbs the ROW owner’s possession or enjoyment of this real right in
immovable property and if the ROW owner or their ancestors in title
have had this ROW for more than a year. When a party seeks an
injunction on this ground, there is no need to make a showing of
irreparable harm. In addition, nothing in Article 3663 suggests the
existence of a mandate requiring these parties to prove that the law does
not offer them any other adequate remedy.

“Although the hearing on the preliminary injunction may touch upon, or even

tentatively decide, the substantive issues that comprise the petition for the permanent

injunction, those substantive issues raised in the principal demand will be decided

only after a full trial under ordinary process.” Mount Zion, 84 So.3d at 678.

This litigation emanates from a dispute over the scope of a right of way.

Defendants’ requests for injunctive relief are based on allegations Plaintiffs thwart

Defendants’ efforts to repair an electronic gate or beautify the entrance of The

Grove, which is on the right of way. Plaintiffs deny inhibiting Defendants’ rightful

use of the right of way, asserting that although the electronic gate at the entrance of

The Grove is often out of order, it is not the only gate. There is also a gate across

the coulee, on The Grove’s property, which is used by residents to exit The Grove.

Plaintiffs’ request for injunctive relief is based on Defendants’ alleged

trespass on their private property, which is not the right of way at issue, in order to

harass and intimidate Plaintiffs. They also seek to limit Defendants’ use of the right

21

of way for ingress and egress until a full trial on the merits, asserting La.Code

Civ.P. art. 3663 says, in relevant part:

Injunctive relief . . . to protect or restore possession of immovable
property or a real right therein, is available to:

....

(2) A person who is disturbed in the possession
which he and his ancestors in title have had for more than
a year of immovable property or of a real right therein of
which he claims the ownership, the possession, or the
enjoyment.

Considering Defendants’ evidence, we find a prima facie showing has not

been made sufficient to justify the issuance of a preliminary injunction pursuant to

La.Code Civ.P. art. 3601. Defendants have failed to present any evidence to show

Plaintiffs have interfered with their use of the right of way. Ms. Hail’s testimony

does not support the issuance of a preliminary injunction. Ms. Hail felt harassed

because Mr. O’Connor’s attorney called her attorney who, in turn, called her. We

decline to equate this sequence of events to harassment. Even if it were harassment,

Defendants have failed to show Plaintiffs’ refusals to allow maintenance of an extra

gate, a gas lantern, and landscaping will cause irreparable injury, loss, or damage,

and Defendants have failed to show they have a good chance to prevail on the merits

of the case. Thus, Defendants’ application for a preliminary injunction is denied.

Conversely, the evidence shows Plaintiffs’ actions are justifiable efforts to

protect their property and to defend against possible financial ramifications of

Defendants’ allegedly unlawful actions. For their efforts, Plaintiffs have endured

threats, intimidation, and trespass on their property which is not property subject to

the right of way. A finding of irreparable harm is not required to obtain injunctive

relief in matters, such as this, to enjoin trespassers and other disturbers. See La.Code

Civ.P. art. 3663(2). Thus, we find Plaintiffs are entitled to injunctive relief.

22

DECREE

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

Judgment is hereby rendered in favor of Plaintiffs and against Defendants. We order

a preliminary injunction be issued to Plaintiffs, enjoining and restraining

Defendants, their officers, agents, employees, successors or assigns, counsel, and

those persons in active concert or participation with them, from harassing Plaintiffs,

threatening Plaintiffs, and from using the right of way at issue herein for anything

other than ingress or egress until a final judgment is rendered following a trial on the

merits in this matter. See La.Code Civ.P. art. 3605.

Additionally, Defendants’ applications for preliminary injunctions are denied.

All costs of this appeal, and in the trial court, are assessed against

Defendants/Appellees.

REVERSED AND RENDERED.

23