ROBERT L. WATTIGNY, SR.
HOSKIN HOMES L.L.C., AND BS RENTALS OF LOUISIANA, L.L.C.
FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 55-928, DIVISION
"B" Honorable Michael D. Clement
A. Gattuso Alex D. Lambert LAMBERT & LAMBERT COUNSEL FOR
Gilbert V. Andry, IV THE ANDRY LAW FIRM, L.L.C.
Michael J. Winsberg LAW OFFICES OF WINSBERG & WINSBERG
COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart,
Judge Paula A. Brown
L. DYSART JUDGE
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
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.
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
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
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.
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
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.
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
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.
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.
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,
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.
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.
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.
none of these assignments of error to be meritorious, and set
forth our reasons in more detail below.
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.
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.
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.
sued both Acadian and Pittman-Harber seeking damages for loss
of value to their home and for mental anguish. They also
sought injunctive ...