Gary Stoute and Lori Stoute v. Lupe T. Camacho and Polly Camacho

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-226

GARY STOUTE AND LORI STOUTE

VERSUS

LUPE T. CAMACHO AND POLLY CAMACHO

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, DOCKET NO. 134792
HONORABLE LEWIS H. PITMAN, DISTRICT JUDGE
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SYLVIA R. COOKS
CHIEF JUDGE
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Court composed of Sylvia R. Cooks, Charles G. Fitzgerald, and Gary T. Ortego,
Judges.

AFFIRMED AND RENDERED.

Lucretia Pecantte
Lucretia Pecantte & Associates
124 W. Washington Street, Suite B
New Iberia, LA 70560
(337) 374-1822
COUNSEL FOR DEFENDANTS/APPELLANTS:
Lupe T. Camacho and Polly Camacho

William Repaske
Landry, Watkins, Repaske & Breaux
211 E. Main Street
New Iberia, LA 70560
(337) 364-7626
COUNSEL FOR PLAINTIFFS/APPELLEES:
Gary Stoute and Lori Stoute

COOKS, Chief Judge.

This litigation arose out of several disputes between neighbors, Lupe and

Polly Camacho and Gary and Lori Stoute. On September 6, 2019, the Stoutes filed

a Petition for Permanent Injunction and for Damages against the Camachos. The

petition alleged the Camachos engaged in activities meant to harass the Stoutes in

the peaceful possession of their property, including piping rainwater from the

Camacho residence across their property to the boundary line with the Stoutes’

property, causing excessive flooding of the Stoutes’ property, eroding the footings

of the Stoutes’ fencing, shining lights at the Stoutes’ house and other acts meant to

harass the Stoutes.

On October 14, 2019, the Camachos filed an Answer and Reconventional

Demand. In the reconventional demand, the Camachos alleged the Stoutes harassed

them with numerous phone calls and texts, removing drainage pipes, calling the

police unnecessarily, and interfering with the drainage of the Camachos’ property.

A trial was held on December 18, 2020, following which the trial court took

the matter under advisement. On February 23, 2021, the trial court on its own

motion, appointed Jim Foret, a horticulturist, as an expert on the issue of water

drainage to independently examine the situation. The Camachos and Stoutes were

ordered to cooperate with Mr. Foret in his assessment of the dispute. Mr. Foret

forwarded a report to the trial court on April 1, 2021. In his report, Mr. Foret

described the situation and his proposed solution as follows:

. . . it looks like these two painted themselves into the proverbial corner.
There are not too many ways to go from here without ripping
everything out an starting over.

At some point the soil around [the] Camacho home settled and water
pooling under the home (on piers) became an issue. Camacho installed
gutters as a means of moving excess water away from his home. In
order to enhance the gutters he extended the downspout on the Stoute ,
east side, to just behind [the] Camacho’s crossties using a 3-4” flexible
drain pipe on the soils surface, open ended at the crossties. This extra
drainage water seems to be [the] point of contention. I did not observe

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excessive water movement and soil erosion anywhere along the Stoute
fence. I saw minor settling or erosion, but away from the open pipe.

In order to get the extension pipe to the property line it is passed under
the driveway. It appears to me that this is not very efficient and it occurs
to me that a different solution is be [sic] available that will remove this
source of irritation to Stoute and allow Camacho to remove excess
water from under his home. The west drainage ditch along [the]
Camacho south line should handle that water without crossing the
driveway by extending the gutter in that direction. The driveway being
slightly higher would block the water movement to the east forcing it
to follow the slope developed during the original turtle backing to the
ditch along the Camacho south property line. From there it will drain
to the west and then north towards the RR berm. I believe in low tech
solutions. This may be one.

On May 7, 2021, the trial court issued a Judgment accompanied by written

reasons for judgment. The trial court enjoined the parties from harassing each other,

enjoined the Camachos from having exterior lights shining in the direction of the

Stoutes’ house “which is higher than the horizontal angle,” and ordered the

Camachos by June 30, 2021 “to relocate the rain water drainage from their house in

conformity with the expert opinion of Jim Foret.”

In the months following, the Stoutes believed the Camachos were not

complying with the judgment and on August 10, 2021 filed a Motion and Order for

Contempt. In that motion they specifically alleged the Camachos “have failed to

abide [with the judgment], and in fact, have installed additional drain lines directing

rainwater toward the Stoute property.”

The Motion and Order for Contempt was heard on October 3, 2021. The trial

court ordered the filing as a supplement to the expert’s report, a screen shot of a text

message from Mr. Foret concerning the Camachos’ actions since the judgment:

Mr. Camacho did not follow my direction and our agreed upon solution
to the drainage conflict. He, instead of developing a drainage swale
half way between the property line and the driveway, placed a roof
gutter on the soil surface from the out flow of his carport drain and the
front ditch. He boxed it in with landscape timbers. Very neatly done
but right along the property line. It is not visible to Stoute unless he
goes looking for it. It works well, but not what we discussed and you
agreed to.

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At the conclusion of the hearing, the trial court rendered oral reasons for

judgment, and made the following findings:

. . . in it’s judgment of May 7, 2021[the court] set a deadline of June 30,
2021 for the [Camachos] to complete the recommendations of Mr. Foret
in his report. Court does not recall exactly the conversation with Jim
Foret, the one in which Mr. Foret came away from the meeting feeling
the deadline was flexible and conveyed that to the [Camachos]. Court
believes Mr. Foret and the [Camachos] never had any disagreement
with actions and always tried to follow his directions. Mr. Foret
checked two weeks ago and all was to his satisfaction as to the part of
the project that he was overseeing. The failure of the [Camachos] to
complete the drainage until October 7, 2021 does not rise to the level
of contempt.

Now, the drainage piping depicted on [Stoutes’] Exhibit 2 was
constructed after the trial on the merits, and Exhibit 3 photo sometime
after 2 was taken when they replaced black piping with a white piping.
The flow off this ten by ten roof was directed toward the boundary and
is not connected to the approved Foret design. This drainage is to be
removed as shown on Exhibit 2 and 3 to allow the water to free flow to
the ground, thus the Court orders the removal of the gutters and drain
pipe of the ten by ten roofing depicted on Exhibit 2 and Exhibit 3. This
is to be done within thirty days of the date of judgment is signed.

Court further orders that all seams and/or connections of the
Foret approved piping be sealed for leaks. Once again to be done within
thirty days of the date the judgment is signed. No encroachments of
landscape timbers or other materials are allowed on the fence or bottom
part of the [Stoutes’] fence. Once again any encroachments are to be
removed within thirty days of the signing of this judgment.

The placing of that drainage upon the ten by ten roof after the
trial on this matter indicates the [Camachos] had a willful disregard of
causing water to flow towards the boundary of their neighbor. Court
therefore holds the [Camachos] in contempt for this action.
[Camachos] are ordered to pay directly to the Attorney William
Repaske attorney fees in the sum of Two Thousand Five Hundred
Dollars. [Camachos] are to pay all court cost in this matter.

A judgment reflecting these rulings was signed on November 19, 2021. The

Camachos appealed, asserting the following assignments of error:

1. The trial court erred by granting the Motion and Order for Contempt
and finding the Camachos in Contempt of Court of the Judgment dated
May 7, 2021.

2. The trial court erred by awarding attorney fees in the amount of
$2,500.00 to the Stoute’s attorney.

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The Stoutes filed an answer to the appeal, asserting they will incur additional

attorney fees as a result of the appeal, and requested an increase in the amount of

attorney fees.

ANALYSIS

A. Finding of Contempt.

The judgment of May 7, 2021, specifically ordered the Camachos to “relocate

the drainage from their house in conformity with the expert opinion of Jim Foret.”

In his expert opinion, Mr. Foret stated that the rainwater should be directed to the

front of the Camacho property along the west side of the Camacho driveway. The

facts established that rather than direct the rainwater as Mr. Foret instructed, the

Camachos erected a new pipe which directed the rainwater towards the Stoutes’

property line. Mr. Foret specifically noted that “Mr. Camacho did not follow my

direction and our agreed upon solution to the drainage conflict.”

The Camachos argue because the new pipe which directed rainwater towards

the Stoutes’ property was added after the May 7, 2021 judgment, they should not be

held in contempt of court for their actions because the new piping could not have

been the object of the May 7, 2021 judgment. We do not agree. The May 7, 2021

judgment clearly sought to prevent the Camachos from directing rainwater towards

the Stoutes’ property. Mr. Foret believed the “west drainage ditch along [the]

Camacho south line should handle that water without crossing the driveway by

extending the gutter in that direction.” The Camachos actions in erecting new

drainage piping which directed the rainwater towards the Stoutes’ property line did

not comply with the May 7, 2021 judgment and constituted an open and obvious

intent to avoid its objective.

Pursuant to La.Code Civ.P. art. 224(2), constructive contempt is the “[w]ilful

disobedience of any lawful judgment, order, mandate, writ, or process of the court.”

“A trial court is vested with great discretion to determine whether a party should be

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held in contempt for willfully disobeying a trial court judgment.” Barnes v. Barnes,

07-27, p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-

987 (La. 11/28/01), 801 So.2d 346). We find the trial court did not abuse its

discretion in finding the Camachos in contempt of court for their wilful disobedience

of the May 7, 2021 judgment.

B. Attorney Fees.

The Camachos also argue the trial court erred in awarding attorney fees in this

matter. In support of this argument, the Camachos cite Dazet Mortgage Solutions

LLC v. Faia, 12-486 (La.App. 5 Cir. 4/10/13), 116 So.3d 711, writ denied, 13-1046

(La. 6/21/13), 118 So.3d 1095. In Dazet, the appellate court affirmed the trial court’s

judgment finding defendant in contempt of court, but vacated the portion of the

judgment imposing $2,500.00 in attorney fees. However, the court in Dazet held it

was vacating the award of attorney fees solely because “the trial judge did not

impose a ‘fine’ as contemplated under La. R.S. 13:4611, [thus] we vacate that

portion of the judgment imposing $2,500.00 in attorney fees.” Since the rendition

of Dazet, the Louisiana Legislature via La. Acts No. 132, § 2, amended La.R.S.

13:4611, to add paragraph (1)(g), which provides “[t]he court may award attorney

fees to the prevailing party in a contempt of court proceeding provided for in this

Section.” Thus, as noted by the Louisiana Supreme Court in Luv N’ Care, Ltd. v.

Jackel Int’l Ltd., 19-749, p. 9 (La. 1/29/20), ___ So.3d ___, “the attorney fees

provision of Subparagraph (1)(g) is necessarily one of the punishments referenced

by the first sentence of Paragraph (1), which a court is authorized to impose on a

person adjudged guilty of a contempt of court.” Accordingly, the trial court was

authorized to award attorney fees in this matter.

The Stoutes have answered the appeal and request an increase in attorney fees

for the work necessitated by this appeal. An award for additional attorney fees is

proper for work necessitated by the appeal when an award for attorney fees is granted

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at the trial level. Oracle 1031 Exchange, LLC v. Bourque, 11-1133 (La.App. 3 Cir.

2/8/12), 85 So.3d 736, writ denied, 12-546 (La. 4/20/12), 85 So.3d 1272. The

Stoutes were awarded attorney fees in the trial court. They have successfully

defended the appeal by the Camachos. We find an additional award of $1,500.00

is appropriate for the work necessitated by this appeal.

DECREE

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

judgment is amended to award additional attorney fees of $1,500.00 for the work

performed on this appeal and appearance before this court. All costs of this appeal

are assessed against Appellees, Lupe and Polly Camacho.

AFFIRMED AND RENDERED.

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