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Howell v. Jurgens

Court of Appeals of Louisiana, Second Circuit

January 16, 2019

BERT HOWELL, JR. Plaintiff-Appellee
v.
TERESA GREEN JURGENS Defendant-Appellant

          Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court No. 45, 570 Honorable Jacque D. Derr, Judge

          JAMES E. CALHOUN Counsel for Appellant

          GARY D. NUNN Counsel for Appellee

          Before MOORE, PITMAN, and McCALLUM, JJ.

          PITMAN, J.

         Defendant-Appellant Teresa Green Jurgens appeals the trial court's judgment in favor of Plaintiff-Appellee Bert Howell, Jr. For the following reasons, we vacate the judgment of the trial court and remand for further proceedings.

         FACTS

         On December 27, 2017, Mr. Howell filed a petition and stated that he and Ms. Jurgens lived together for many years, but recently separated. He alleged that she refused to allow him to retrieve from her house items belonging to him and his mother. He provided a list of these items: personal documents such as his birth certificate, social security card and tax returns; two horses, a horse trailer and a saddle and tack; a boat, boat trailer and fishing equipment; bedroom furniture, including a bed, a dresser and a chest of drawers; two mounted deer heads; an alarm; two cowboy hats; tool boxes and tools; a gas generator and two gas cans; two window air conditioners; a Bowflex exercise system; his clothing; his pillow; and a crossbow. Mr. Howell requested that the trial court issue an ex parte temporary restraining order enjoining Ms. Jurgens from abusing or harassing him and from transferring, damaging or disposing of his property. He requested that she return all his items or pay their value in the event that she has disposed of or damaged them.

         On January 8, 2018, the trial court signed a temporary restraining order.

         At a hearing on March 5, 2018, counsel for Mr. Howell noted that counsel for Ms. Jurgens was not present in court because he was in the hospital, but that they agreed to continue the case to May 1, 2018. Counsel for Mr. Howell stated that counsel for Ms. Jurgens would be notified by telephone call of the new court date. The minutes of the court from this date state "No notice to be sent by clerk."

         A hearing was held on May 1, 2018. Mr. Howell and his counsel were present, but Ms. Jurgens was not present and was not represented by counsel. Counsel for Mr. Howell stated that in a letter dated April 11, 2018, Ms. Jurgens's counsel informed her that he would not be able to represent her further. Mr. Howell testified that he and Ms. Jurgens lived together in her house, but never married. He discussed the items listed in his petition and stated that he wanted all of his possessions except the bed, the horse named Blue Girl and two gas cans. He requested that a law enforcement officer accompany him to retrieve his items from Ms. Jurgens's house. He also requested that the restraining order be made permanent to stop Ms. Jurgens from harassing him and destroying his property. The trial court found that the items listed in the petition were the property of Mr. Howell. It specified that the horse trailer and boat trailer were the property of Mr. Howell and ordered Ms. Jurgens to execute any documents necessary to place ownership in Mr. Howell's name. It ordered that Ms. Jurgens return to Mr. Howell all of the items that Mr. Howell testified that he wanted and stated that she would be held in contempt for her failure to do so. It also ordered a sheriff's deputy to accompany Mr. Howell to retrieve his property. It granted Mr. Howell's requests for restraining orders and assessed all costs of the proceeding against Ms. Jurgens.

         On May 9, 2018, the trial court filed a judgment and issued a preliminary and permanent injunction restraining, enjoining and prohibiting Ms. Jurgens or her agents from any form of abuse or harassment of Mr. Howell and from going to his place of residence, his place of employment or any place where he is located. It ordered that Ms. Jurgens return to Mr. Howell the items listed in his petition, except for a bed, the horse named Blue Girl and two gas cans.

         On May 21, 2018, Ms. Jurgens filed a motion for new trial. She stated that she was not represented by counsel and was not notified that the hearing set for March 5, 2018, was continued to May 1, 2018. She received notice of the judgment on May 17, 2018. She argued that the judgment should be declared null and void and that the matter be set for trial.

         A hearing on the motion for new trial was held on June 22, 2018. The trial court discussed the procedural history of the case and stated that Ms. Jurgens's counsel was present in court when the continuance was granted. Ms. Jurgens stated that her attorney did not inform her of the May 1, 2018 court date and that she was not served with notice of this court date. ...


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