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Stevens v. St. Tammany Parish Government

Court of Appeals of Louisiana, First Circuit

January 18, 2017

TERRI LEWIS STEVENS AND JENNIFER FRUCHTNICHT, WIFE OF/AND CRAIG RIVERA
v.
ST. TAMMANY PARISH GOVERNMENT

         Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 2015-10649 The Honorable Allison H. Penzato, Judge Presiding.

          Louis R. Koerner, Jr. New Orleans, Louisiana Counsel for Plaintiffs /Appellants Terri Lewis Stevens and Jennifer Fruchtnicht, wife of /and Craig Rivera.

          James E. Blazek Lacombe, Louisiana James L. Bradford, III Kirk N. Aurandt D. Stephen Brouillette, Jr. Covington, Louisiana Counsel for Defendant /Appellee St. Tammany Parish Government.

          BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         This is a companion case to Stevens v. St. Tammany Parish Government, 16-0534 (La.App. 1 Cir. --/--/--), ___ So.3d ___, handed down this same date. The plaintiffs-appellants, Terri Lewis Stevens and Jennifer Fruchtnicht, wife of/and Craig Rivera (collectively "the petitioners"), appeal a judgment entered by the trial court in favor of the defendant-appellee, St. Tammany Parish Government ("STPG"), denying the petitioners' request for preliminary injunction on the construction of a certain public works project. For the following reasons, we dismiss this appeal as moot.

         FACTS AND PROCEDURAL BACKGROUND

         On February 18, 2015, the petitioners filed a petition for injunctive relief, damages, and attorney fees against STPG. The petitioners claimed they were the owners of adjoining five-acre tracts of land located in St. Tammany Parish, Louisiana, bordering Dove Park Road, a thoroughfare owned and maintained by STPG, and which fronts the northern border of Dove Park Subdivision. The petitioners claimed that in the 1950s, STPG or its predecessor in interest approved the development of Dove Park Subdivision, which, as originally designed, did not affect the drainage of water on the petitioners' property. However, the petitioners claimed that, in or around 2003, STPG conceived and executed a public works project to pave the streets within the subdivision, which changed the drainage of water in a manner that substantially and unlawfully burdened the petitioners' property. The petitioners claimed that STPG then approved another public works project to widen Dove Park Road in order to handle more drainage water, despite knowing that the project would substantially increase the drainage of water onto the petitioners' property. Based upon the foregoing, the petitioners sought damages, permanent injunctive relief, mandamus relief, and a temporary restraining order and preliminary injunction prohibiting STPG from beginning or continuing work on the Dove Park Road widening project.

         Relevant for purposes of this appeal, the trial court set the petitioners' request for preliminary injunction for a hearing on March 27, 2015. At the hearing on the preliminary injunction, the trial court accepted testimony from the petitioners and several other witnesses regarding both the flooding conditions and the effects of the road widening project. After the petitioners presented their case-in-chief, STPG moved for involuntary dismissal.[1] The trial court took the matter under advisement, and, on April 1, 2015, in open court, the trial court granted STPG's motion for dismissal and assigned oral reasons for judgment. The trial court explained that the petitioners failed to provide any evidence that the road widening project would impact the current drainage conditions and that a preliminary injunction was therefore unnecessary to preserve the status quo. Thereafter, on April 20, 2015, the trial court signed a judgment granting the motion for involuntary dismissal and denying the petitioners' request for the issuance of a preliminary injunction on the construction of the road widening project. The trial court reserved judgment on "all other issues for later determination." The petitioners now appeal.

         ASSIGNMENTS OF ERROR

         The petitioners raise the following assignments of error:

1. The trial court erred in not setting, considering, and ruling on the motions to receive additional evidence and alleging mandatory grounds for new trial.
2. It was error to refuse to consider Exhibits 28-31, contended to impeach the testimonies of Jay Pittman and Jean Thibodeaux and contended to demonstrate at least an ill practice on the part of STPG. The trial court erred in not reopening the preliminary injunction to consider these exhibits.
3. Although the original petition contained detailed factual allegations that STPG had trespassed on the petitioners' property, had disturbed their possession, and had illegally burdened their land, the trial court erroneously refused to consider these causes of action and the testimonial proof positive that STPG was dumping water, trash, and sewerage that was eroding and fouling the petitioners' property. There was additional ...

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