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Nola Bourbon, LLC v. Rodriguez-Franco

Court of Appeals of Louisiana, Fourth Circuit

April 18, 2018

NOLA BOURBON, LLC
v.
JORGE RODRIGUEZ-FRANCO AND LILLIAN BENITEZ

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-07653, DIVISION "L" Honorable Kern A. Reese, Judge

          Scott M. Galante Salvador I. Bivalacqua Lauren Bergeron Griffin GALANTE & BIVALACQUA, LLC COUNSEL FOR PLAINTIFF/APPELLEE

          Vincent J. Booth BOOTH & BOOTH, Bradley J. Egenberg EGENBERG, APLC, COUNSEL FOR DEFENDANTS/APPELLANTS

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dennis R. Bagneris, Sr., Pro Tempore

          Daniel L. Dysart, Judge

          Jorge Rodriguez-Franco and Lillian Benitez appeal the issuance of a permanent injunction against them and in favor of Nola Bourbon, LLC. For the reasons that follow, we reverse and remand this matter for further proceedings.

         BACKGROUND:

         Nola Bourbon, LLC, (hereinafter "Nola Bourbon" or "plaintiff") is the owner of the property located at 933 Bourbon Street in New Orleans, having purchased the property on September 27, 2011. Jorge Rodriguez-Franco and Lillian Benitez (hereinafter referred to collectively as "Benitez" or "defendants") are the owners of 927-931 Bourbon Street, and have been since 1995. A dispute over the alley that runs between the two properties is the basis for this lawsuit.

         In August of 2015, Nola Bourbon filed a Petition for Preliminary Injunction, Permanent Injunction and Ex Parte Motion for Temporary Restraining Order. In the petition, Nola Bourbon alleged that Benitez ordered it to remove air conditioning units that were on defendants' property, allegedly with defendants' permission. Upon learning that defendants no longer wanted the air conditioning units on their property, plaintiff entered into a verbal and written agreement with defendants to refrain from taking any action for a ten-day period. However, prior to the termination of the ten-day period, defendants closed in with bricks plaintiff's previously existing gate opening in the wall between the properties. Nola Bourbon alleged that the closure of the wall caused damage to its property. Specifically, plaintiff alleged that because its property could no longer drain into a pre-existing French drain between the properties, water would accumulate on plaintiff's property, flooding a downstairs unit; plaintiff could no longer access its air conditioning units for maintenance; and, repairs and/or maintenance could no longer be done to that side of plaintiff's property.

         In their ex parte motion for a temporary restraining order, plaintiff requested that defendants be enjoined from dismantling or moving the air conditioning units, and from denying plaintiff access to defendants' side of the alley wall. The trial court granted only the portion of the restraining order addressing the air conditioning units. The defendants answered the petition, raising allegations of harm to their property, and arguing that plaintiff had no rights to the use of the alley.

         Prior to a hearing being held on the petition for injunctive relief, defendants filed exceptions of no cause of action, improper use of summary proceeding and prematurity, all of which were denied by the trial court.

         On October 15, 2015 and July 12, 2016, the trial court held hearings on plaintiff's petition for injunctive relief. A judgment was rendered on September 13, 2017, along with written reasons for judgment. The trial court ordered defendants to remove the brick wall that was constructed between the two properties to block plaintiff's gate. The trial court's ruling also permanently enjoined defendants and any successors in title from denying access to plaintiff and any successors in title to the defendants' side of the alley; from blocking or obstructing the French drain in the common alleyway; from removing the currently existing air conditioning units on defendants' property or from preventing maintenance of said units.

         Defendants now appeal.

         D ...


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