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Wattigny v. Hoskin Homes L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

November 14, 2018

ROBERT L. WATTIGNY, SR.
v.
HOSKIN HOMES L.L.C., AND BS RENTALS OF LOUISIANA, L.L.C.

          APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 55-928, DIVISION "B" Honorable Michael D. Clement

          Philip A. Gattuso Alex D. Lambert LAMBERT & LAMBERT COUNSEL FOR PLAINTIFF/APPELLEE

          Gilbert V. Andry, IV THE ANDRY LAW FIRM, L.L.C.

          Michael J. Winsberg LAW OFFICES OF WINSBERG & WINSBERG COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown

          DANIEL L. DYSART JUDGE

         Defendants, Hoskin Homes, L.L.C. and BS Rentals of Louisiana, L.L.C., appeal a judgment rendered on April 25, 2017, in accordance with a jury verdict returned and recorded on March 27, 2017. The jury found Hoskins Homes, L.L.C., fifty percent at fault, BS Rentals of Louisiana, L.L.C., twenty-five percent at fault and the Parish of Plaquemines twenty-five percent at fault. Both parties filed motions for judgment notwithstanding the verdict, which were denied by the trial court. Plaintiff, Robert L. Wattigny, Sr., answered the appeal, seeking to modify the judgment. For the reasons that follow, we affirm the judgment in part, reverse in part, amend in part, and render.

         BACKGROUND:

         BS Rentals, L.L.C. ("BSR") purchased vacant property in Belle Chasse, Louisiana, and contracted with Hoskin Homes, L.L.C. ("HH") to develop the property. The property was subdivided into five lots, with three homes being built on Lots 3, 4 and 5. The homes were designated as 130, 140 and 150 Tall Pines Road, Belle Chasse, Louisiana. Plaintiff, Robert L. Wattigny, Sr., ("Wattigny" or "plaintiff"), owns and resides on the property adjacent to and north of the subject property.

         Prior to construction of the homes, HH elevated the grade of the property to three feet above that of Wattigny's property, and, as required by Plaquemines Parish ordinances, built a retaining wall at the north end of the three home sites to prevent run off of water and soil onto Wattigny's property. The three homes were subsequently sold to three individuals.

         Prior to filing suit, Wattigny notified both HH and BSR of the defects in the retaining wall and of the damage being caused to his property, but was unsatisfied with their responses. He filed a Petition to Abate Nuisance on June 20, 2008, naming HH and BSR as defendants, seeking to have the retaining wall declared a nuisance, and to have an injunction issue to defendants ordering them to remove the wall and replace it with a suitable wall, or to pay plaintiff reasonable damages.[1]

         Plaintiff filed an Amended and Supplemental Petition on June 25, 2010, naming the persons who had since bought the three houses constructed by HH, alleging that the new owners and BSR, as owner of Lots 1 and 2, were also responsible for the defective wall. As a result of the negligence and/or nuisance of defendants, plaintiff suffered loss of enjoyment of his property, mental anguish, irritation, anxiety and discomfort.

         On May 4, 2012, a telephone conference was held and a new bench trial date of November 28, 2012 was selected. On November 13, 2012, plaintiff filed a Second Amended and Supplemental Petition, adding a subsequent owner of Lot 3. A joint motion was filed to continue the trial. The new owner of Lot 3 answered the petition, and filed a cross-claim against the person who sold him the lot for breach of implied warranty. Various answers, cross-claims, affirmative defenses and exceptions were filed by the parties. Before any of those actions were heard, plaintiff filed a Restated and Amended Petition to Abate Nuisance. He again named the original defendants and all owners and subsequent owners of the property. Ms. Gloria Bonvillian, the original purchaser of Lot 3, filed a third party petition against her homeowner insurer.

         On June 13, 2013, the trial court heard argument on various exceptions filed by Ms. Bonvillian. It denied her exception of no cause of action, but granted her exception of vagueness, ordering plaintiff to amend his petition.

         Ms. Bonvillian also filed cross-claims against HH and BSR, and a third-party demand against Bonnie Buras, as a member of BSR, and against Buras's employer, TEC Realtors, LLC d/b/a Coldwell Banker Realtors. She also filed a third-party petition against Western World Insurance Company that had issued various policies to HH. TEC Realtors requested a jury trial.

         On February 24, 2014, plaintiff filed a Third Amended and Supplemental Petition naming the homeowner insurers of the owners of Lots 3, 4 and 5. On September 4 and 16, 2014, the trial court heard arguments on various motions filed by the parties. Ultimately, the trial court granted summary judgment in favor of all of the defendant homeowners of Lots 3, 4 and 5, and their homeowner insurers. Plaintiff filed notices of appeal, but did not appeal that ruling, which is now final.

         On November 17, 2014, plaintiff filed a Fourth Amended and Supplemental Petition, naming another homeowner insurer; Ricky Southall and South Tech, Inc., alleging that the latter two defendants constructed the wall at the direction of HH.

         On July 4, 2015, HH, BSR and Bonnie Buras filed a reconventional demand against plaintiff, arguing that plaintiff was liable to them as his claims were baseless and vindictive, that plaintiff admitted he had suffered no damage personally or to his property, that other parties were sued in bad faith, and that plaintiffs-in-reconvention had suffered damages, specifically, inability to sell the remaining properties. Plaintiff responded with an Exception of Prematurity, among others, which was granted by the trial court on December 11, 2015.

         After numerous delays, this matter proceeded to trial on March 21, 2017, against HH and BSR as defendants. On March 27, 2017, the jury returned a verdict finding BSR twenty-five percent at fault, HH fifty percent at fault, and Plaquemines Parish twenty-five percent at fault for Wattigny's damages in the amount of $98, 750.00, plus legal interest from the date of demand, and court costs and expert fees to be determined at a later date. A judgment conforming to the verdict was rendered on April 25, 2017.

         On August 3, 2017, the trial court signed a judgment ordering BSR and HH to pay plaintiff $14, 611.75 in court costs and $3, 639.00 in expert fees. The court further denied motions for judgment notwithstanding the verdict filed by both plaintiff and defendants, and denied defendants' Motion to Cancel Mortgage Inscription.

         DISCUSSION:

         A. Defendants' appeal:

         All of BSR's and HH's assignments of error are based upon Wattigny's dismissed claim for injunctive relief. The dismissal took place during a pre-trial conference on the morning of trial. The trial court advised the parties that it would allow the jury to consider a claim for damages. Defendants argue: 1) the claim was waived; 2) a claim for injunctive relief could not be maintained against the prior property owner; 3) a jury charge relative to La. Civ. Code art. 667 was improper; and, 4) a jury charge for damages relative to a nuisance claim was improper.

         We find none of these assignments of error to be meritorious, and set forth our reasons in more detail below.

         On the morning of trial, the defendants orally moved for a ruling on an exception of no cause of action. They argued that plaintiff was not entitled to injunctive relief, as the defendants no longer owned the property in question, and therefore the defendants could not legally enter the property to remedy the problems with the retaining wall. Further, although plaintiff had sued the current owners, those parties had been dismissed from the case by summary judgment. Thus, there was no injunctive relief available to plaintiff. The trial court granted the exception.

         We agree that plaintiff could not proceed on a claim for injunctive relief; however, we disagree with the defendants' argument that the case proceeded on plaintiff's petition for injunction or that damages were awarded in connection with an injunction. Rather, we find that damages were awarded in connection with a nuisance.

         In Moreland v. Acadian Mobile Homes Park, Inc., 313 So.2d 877 (La.App. 2d Cir. 1975), the Second Circuit addressed a situation strikingly similar to the facts of the case below. In Moreland, homeowners brought an action for injunctive relief and damages against Acadian Mobile Homes Park, Inc. ("Acadian"), and its successors in ownership. Plaintiffs, who originally purchased their property in 1965, alleged that the construction and operation of the mobile home park adjacent to plaintiff's property beginning in 1970, caused damage to their property. Specifically, Acadian removed trees and graded the property, causing loose top soil to flow onto plaintiffs' property. Heavy rainfall would also cause sand and other debris to flow onto plaintiffs' land. In 1973, defendant Acadian sold the property to a partnership, Pittman-Harber, which continued to operate the trailer park.

         Plaintiffs sued both Acadian and Pittman-Harber seeking damages for loss of value to their home and for mental anguish. They also sought injunctive ...


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