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Forrester v. Bruno

Court of Appeals of Louisiana, Fourth Circuit

May 1, 2019

WILLIAM R. FORRESTER, JR. AND REGAN A. FORRESTER
v.
JOSHUA L. BRUNO KATHRYN R. MCCOOL AND DEAN G. SMITH, 1458 NASHVILLE AVENUE, NEW ORLEANS, LOUISIANA 70115
v.
JOSHUA L. BRUNO, 1448 NASHVILLE AVENUE, NEW ORLEANS, LOUISIANA 70115

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-02574, DIVISION "F" Honorable Christopher J. Bruno, Judge

          Thomas A. Robichaux THOMAS A. ROBICHAUX, ATTORNEY AT LAW COUNSEL FOR APPELLANT, JOSHUA R. BRUNO

          David C. Forrester FORRESTER & CLARK COUNSEL FOR APPELLEES, WILLIAM R. FORRESTER AND REGAN A. FORRESTER

          Kyle D. Schonekas Maria G. Marks SCHONEKAS EVANS McGOEY & McEACHIN, L.L.C COUNSEL FOR APPELLEES, KATHRYN MCCOOL AND DEAN SMITH

          Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown

          PAULA A. BROWN JUDGE

         This matter arises out of a boundary dispute. Plaintiffs/appellees, William R. Forrester, Jr., Regan A. Forrester (collectively, the "Forresters"), Kathryn McCool and Dr. Dean Smith (collectively, the "McCools"), [1] filed petitions to fix boundary against their neighbor, Joshua L. Bruno, defendant/appellant herein. During the pendency of their petitions to fix boundary, each filed motions for preliminary injunctions. In this appeal, Mr. Bruno argues the district court erred in granting the Forresters' motion for preliminary injunction, granting in part the McCools' motion for preliminary injunction, and denying Mr. Bruno's exceptions of no cause of action and unauthorized use of a summary proceeding. Finding no error of law or abuse of the district court's discretion, we affirm the judgments.

         FACTUAL AND PROCEDURAL HISTORY

         The Forresters purchased their home, 1442 Nashville Avenue, on March 28, 1984. The McCools bought their home, 1458 Nashville Avenue, on December 31, 2014. Mr. Bruno moved into 1448 Nashville Avenue, next door to the Forresters, on August 9, 2015. The Forresters and Mr. Bruno share a garage located in the rear of their properties and bounded by Garfield Street. The McCools' property is bounded to the south by Mr. Bruno's residence.[2]

         On March 14, 2016, the Forresters filed a "Petition to Fix Boundary." They alleged that "[d]uring the period from August through December 2015, [Mr. Bruno] ha[d] erected, expanded and maintained encroachments on petitioners' property beyond the boundaries set forth in his deed and survey, in the form of fencing, pool/pump equipment and A/C equipment." The Foresters requested an order compelling Mr. Bruno to abide by his survey and to remove the encroachments.

         The McCools filed a "Petition to Fix Boundary; Petition to Enjoin Criminal Trespass; Destruction of Immovable Property; Request for Treble Damages; Request for Injunction" (collectively, "petition to fix boundary") on September 19, 2017.[3] They alleged, in part, that Mr. Bruno, his workers and/or guests continually trespassed on their property; parked in the McCools' driveway, blocking the McCools' egress and ingress to their driveway; erected scaffolding on their property; removed plants; and destroyed several of the McCools' holly trees. Additionally, the McCools alleged Mr. Bruno heaved a six-foot rebar onto their property, spat on one of the McCools' landscapers, and threatened to bankrupt them with litigation. As part of the prayer for relief, the "request for injunction" demanded a mandatory injunction to restrain and permanently enjoin Mr. Bruno from committing further acts of trespass and assault.

         The Forresters moved to consolidate their petition to fix boundary with the McCools' petition to fix boundary on January 29, 2018. The district court granted the motion on April 2, 2018.[4]

         On May 7, 2018, the Forresters filed a supplemental and amending petition. They alleged that after the filing of their petition to fix boundary, Mr. Bruno had made verbal threats, intentionally damaged, altered or removed the Forresters' property, and had continually encroached and trespassed on the Forresters' property, including their backyard, side yard, and the Forresters' portion of the shared garage which faces Garfield Street. They demanded preliminary and permanent injunctions. On May 15, 2018, the Forresters followed-up their supplemental petition with a motion for preliminary injunction to enjoin Mr. Bruno's actions pending the trial on the merits on the petition to fix boundary.

         On the same day, May 15, 2018, the McCools filed a motion for preliminary injunction to enjoin Mr. Bruno, his agents, and guests from parking, trespassing, and throwing items on their property and to prohibit Mr. Bruno from cursing, harassing, making obscene gestures, or threatening the McCools. Along with the motion, the McCools filed a rule to show cause as to why a temporary injunction should not issue against Mr. Bruno.

         Mr. Bruno filed exceptions of no cause of action and unauthorized use of summary proceedings in opposition to the respective motions for preliminary injunction. He asserted the motions did not allege facts to support a preliminary injunction and that the motions represented an improper use of summary proceedings to establish property rights.

         The hearing on the preliminary injunctions and Mr. Bruno's exceptions was held on May 22, 2018. The district court, at the outset of the hearing, considered and orally denied Mr. Bruno's exceptions and, thereafter, proceeded with the hearing on the merits of the respective preliminary injunctions. The district court first heard testimony in support of the Forresters' preliminary injunction. The Forresters

         Tommy Francis, an expert in the installation and maintenance of video security equipment retained by the Forresters, testified that he installed surveillance cameras in the garage in areas under the Forresters' control on or about December 2017. Mr. Francis identified videos which depicted Mr. Bruno removing and damaging the surveillance cameras, trespassing, and engaging in behavior Mr. Francis described as malicious. Mr. Francis testified Mr. Bruno directly threatened him with lawsuits.

         William Forrester testified that his problems with Mr. Bruno began shortly after Mr. Bruno moved in next door when Mr. Bruno's work crews used the Forresters' yard as a "staging" area to build a swimming pool, without providing any notice or obtaining permission. Mr. Bruno's workers also dug a trench across his backyard in order to build a concrete sidewalk leading to the back door of the garage. The workers pulled up the Forresters' pavers and sprinkler system, took down a fence on the property line, constructed a fence that was partially on the Forresters' property, and used the Forresters' water supply. Mr. Forrester voiced his objections to Mr. Bruno, posted a "no trespassing" sign, and sent numerous emails to Mr. Bruno in October and November 2015 detailing his complaints. Mr. Forrester also asked Mr. Bruno for his survey to establish the property lines, but Mr. Bruno did not respond. After these actions yielded no results, Mr. Forrester obtained a copy of Mr. Bruno's survey from the Conveyance Office, retained his own surveyor, and filed the Forresters' petition to fix boundary.[5]

         Mr. Forrester testified that Mr. Bruno had ripped out the Forresters' surveillance camera equipment and police officers had to retrieve the equipment from Mr. Bruno's house. Mr. Forrester complained that Mr. Bruno routinely dumped his garbage in the Forresters' yard, blocked Mrs. Forrester's access to the garage, and had his workers service Mr. Bruno's pool pump equipment, which is on the Forresters' property. Mr. Forrester testified that in February 2018, Mr. Bruno threatened to "bury" him after Mr. Forrester had asked Mr. Bruno's workers-who were standing in Mr. Forrester's azaleas-to get off his property. Approximately three weeks before the hearing, while Mr. Forrester was walking his dog, Mr. Bruno confronted him, screaming about the litigation. In response, Mr. Forrester instructed his attorney to tell Mr. Bruno's counsel that any communication between the two should go through their respective legal representatives. He believed Mr. Bruno intentionally tried to provoke him, and he felt intimidated.

         On cross-examination, Mr. Forrester admitted that problems associated with the construction of the swimming pool mostly ceased in 2015; however, he reiterated that Mr. Bruno's workers still entered his property to service Mr. Bruno's pool pump equipment. As to whether the only access to the garage was through the Forresters' backyard, Mr. Forrester testified that Mr. Bruno could gain entry to the garage by using a sidewalk going from Mr. Bruno's property through a gate to Garfield Street. While Mr. Forrester believed Mr. Bruno had constructed a fence which encroached on the Forresters' property and that Mr. Bruno's pool pump equipment was on their property, he made clear the relief sought by the preliminary injunction did not include demands for Mr. Bruno to remove the fence or the pool pump equipment. He testified those matters would be resolved at the hearing on the petition to fix boundary.

         Regan Forrester testified that Mr. Bruno's workers sometimes prevented her from using her side of the garage by leaving equipment in the garage. On an occasion when she complained to Mr. Bruno, she said he put his finger in her face and said, "I have people who can take [care] of you - - who can handle you. . ." She said she felt threatened. The situation worsened after Mr. Bruno was served with their lawsuit in December 2017. Mrs. Forrester returned home to discover the rear garage door had been torn off its hinges and tossed into her backyard. That incident caused the Forresters to install the surveillance cameras. Mrs. Forrester testified Mr. Bruno frequently parks too close to her car and that she often has to remove objects placed behind her car before she backs out. Mrs. Forrester described an incident around Mother's Day when she returned home after midnight and was forced to park in the street because Mr. Bruno's vehicle was parked in the middle of the garage.

         Mr. Bruno, the sole witness in opposition to the motions for preliminary injunction, [6] acknowledged that he and the Forresters share garage space. He contended, however, that he utilizes the rear door to access the garage at least twice a week because the garage does not open properly. He said he enters the garage through a paved walkway in the Forresters' backyard as it is a safer route for his young children than entering from Garfield Street. He testified that he became aware the Forresters had a problem with his usage of the rear entry to the garage only after they filed the preliminary injunction.

         Mr. Bruno admitted he removed and repacked the pavers in the Forresters' backyard. He maintained he "stabilized" the pavers for walking and pushing a baby stroller. Mr. Bruno testified that he removed and replaced the "mutually shared" fence because of termites. He said he attempted to resolve his differences with Mr. Forrester before the preliminary injunction was filed; however, he claimed Mr. Forrester refused to talk to him.

         On cross-examination by the Forresters' counsel, Mr. Bruno did not dispute that he had to walk on part of the Forresters' property to get to the garage; but rather, he maintained he had a legal servitude over a "large swath" of the Forresters' backyard, which entitles him to enter their yard to access the rear garage door. He admitted he had told police he owned the entire garage at the time he ripped out the Forresters' surveillance equipment. He explained he removed the Forresters' surveillance equipment, in part, because he thought the equipment was placed by another party with whom he was engaged in a domestic dispute. He denied threatening Mrs. Forrester and yelling at Mr. Forrester while Mr. Forrester walked his dog. As to the threat to "bury" Mr. Forrester, he testified that he told Mr. Forrester that they would bury each other with litigation.

          The McCools

         Kathryn McCool testified that in 2015, she consented for Mr. Bruno to landscape a "small bit" of the front corner of her property. She said, however, that Mr. Bruno removed her plants without her permission and landscaped a fifty-four feet area to which she had not consented. As a result, his workers were constantly on her property to maintain his landscaping. Her relationship with Mr. Bruno deteriorated in June 2017 when he complained that leaves from her holly trees had damaged his swimming pool. He demanded that she trim the trees. Ms. McCool permitted him to trim the trees and cut down a tree trunk that hung over onto Mr. Bruno's property. When she returned from a vacation in July 2017, she discovered Mr. Bruno had totally removed the trees. Thereafter, the McCools sent notices to Mr. Bruno to remove the shrubs and trees he had planted on their property and to return their property to its preexisting state. She asserted his plantings amounted to an encroachment based on his "Cash Sale" document and the certified survey of his property registered with the Clerk's Office.

         Ms. McCool identified still photographs from videos which showed Mr. Bruno had tossed a six foot piece of rebar, hurled chicken bones, and thrown other garbage onto the McCools' property.[7] She testified that Mr. Bruno, his guests and his employees frequently parked in her driveway or within three feet of her driveway. She also said Mr. Bruno had threatened to bankrupt the McCools with litigation. Ms. McCool requested the district court enjoin Mr. Bruno, his employees, or guests from trespassing and littering on the McCools' property and from using or blocking their driveway.

         On cross-examination, Ms. McCool admitted if Mr. Bruno had not cut down her holly trees, she would have had no landscaping issues with him. She re-urged that she wanted Mr. Bruno to not trespass on her property in accordance with the boundary lines as established in the surveys. When Mr. Bruno's counsel disputed the surveys presented by Ms. McCool, the district court opined that it could not resolve the property line dispute in the preliminary injunction proceeding. Mr. Bruno's counsel acknowledged that, for purposes of the McCools' preliminary injunction, Mr. Bruno was not ...


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