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Jackson v. Pfeifer

Court of Appeal of Louisiana, Fourth Circuit

November 12, 2014

LARRY VAN JACKSON, JR.
v.
JOHN C. PFEIFER

Page 999

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2012-10857, DIVISION " C" . Honorable Sidney H. Cates, Judge.

John A. E. Davidson, Christopher J. Davidson, DAVIDSON & DAVIDSON, APLC, Metairie, LA, COUNSEL FOR PLAINTIFF/APPELLANT, LARRY VAN JACKSON, JR.

Rachel Wisdom, John Mark Fezio, STONE PIGMAN WALTHER WITTMAN L.L.P., New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE, MARQUEE INVESTMENT PROPERTIES, LLC.

Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Roland L. Belsome. BELSOME, J., CONCURS IN THE RESULT AND ASSIGNS REASONS.

OPINION

Page 1000

Terri F. Love, Judge.

[2014-0062 La.App. 4 Cir. 2] This appeal arises from the issuance of a preliminary injunction against the defendant-in-reconvention, who claims ownership of plaintiff-in-reconvention's alleged blighted immovable property via acquisitive prescription. The defendant-in-reconvention contends that the trial court erred in granting the preliminary injunction, in denying his request for injunctive relief, and for denying his claim for damages, costs, and attorney's fees regarding the temporary restraining order and preliminary injunction. We find that the trial court did not abuse its discretion in granting plaintiff-in-reconvention's request for a preliminary injunction because it presented a prima facie case that it would prevail in a trial on the merits of the petitory action. However, the defendant-in-reconvention failed to present a prima facie case that demonstrated he would likely prevail in his possessory action. Thus, the trial court did not abuse its discretion in denying his request for a preliminary injunction. Lastly, we find that the trial court did not abuse its discretion in denying the request for " Damages for Dissolution of Wrongfully Issued Preliminary Injunction," and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

John Pfeifer purchased the immovable property located at 7049 Magazine Street/203 Audubon Street (" Property" ) in January 1992, and resided there until [2014-0062 La.App. 4 Cir. 3] August 2005. From August 2005 to May 2008, Mr. Pfeifer visited the Property regularly. The Property was declared blighted after May 2008. From May 2008 to January 10, 2013, Mr. Pfeifer allegedly intended to continue possessing the Property. On August 18, 2010, Citywide Development Services, L.L.C. (" Citywide" ) filed an Affidavit of Possession, in accordance with La. R.S. 9:5633, on the Property. Larry Van Jackson, Jr. signed the affidavit on behalf of the affiant, Citywide.

Mr. Jackson, Jr. filed a possessory action against Mr. Pfeifer in 2012, praying for a judgment recognizing his possession of the Property in his individual capacity. On January 10, 2013, Mr. Pfeifer sold the Property to Marquee Investment Properties, LLC (" Marquee" ). Marquee then filed a motion to be substituted for Mr. Pfeifer as the defendant in Mr. Jackson, Jr.'s possessory action. Subsequently, Marquee filed its Answer, Reconventional Demand, Petition for Writ of Mandamus,

Page 1001

Petition for Temporary Restraining Order, Preliminary and Permanent Injunction. Marquee contended, as the plaintiff-in-reconvention, that the possessory action should be converted into a petitory action, and requested that Mr. Pfeifer be enjoined from trespassing on the Property.

The duty judge[1] issued a temporary restraining order (" TRO" ) and a preliminary injunction in favor of Marquee. However, this Court vacated the preliminary injunction on supervisory review because the duty judge did not have the authority to grant the injunction. Marquee then re-urged the motion for a preliminary injunction before Division C,[2] the division that was allotted the case. The trial court denied Mr. Jackson, Jr.'s Motion for Preliminary Injunction. Mr. [2014-0062 La.App. 4 Cir. 4] Jackson, Jr.'s " Exceptions of No Cause of Action/Improper Use of Summary Proceedings and for Damages for Dissolution of Wrongfully Issued Preliminary Injunction" were also denied. The trial court granted Marquee's Motion for Preliminary Injunction. The trial court " enjoined and prohibited" Mr. Jackson, Jr. " from entering on the" Property. Mr. Jackson, Jr.'s devolutive appeal followed.

Mr. Jackson, Jr. contends that the trial court erred by 1) dismissing his claims for damages, costs, and attorney's fees from the temporary restraining order and preliminary injunction; 2) denying his request for injunctive relief; ...


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