WILLIAM R. FORRESTER, JR. AND REGAN A. FORRESTER
JOSHUA L. BRUNO KATHRYN R. MCCOOL AND DEAN G. SMITH, 1458 NASHVILLE AVENUE, NEW ORLEANS, LOUISIANA 70115
JOSHUA L. BRUNO, 1448 NASHVILLE AVENUE, NEW ORLEANS, LOUISIANA 70115
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-02574,
DIVISION "F" Honorable Christopher J. Bruno, Judge
A. Robichaux THOMAS A. ROBICHAUX, ATTORNEY AT LAW COUNSEL FOR
APPELLANT, JOSHUA R. BRUNO
C. Forrester FORRESTER & CLARK COUNSEL FOR APPELLEES,
WILLIAM R. FORRESTER AND REGAN A. FORRESTER
D. Schonekas Maria G. Marks SCHONEKAS EVANS McGOEY &
McEACHIN, L.L.C COUNSEL FOR APPELLEES, KATHRYN MCCOOL AND
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Paula A. Brown
A. BROWN JUDGE
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"),  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.
AND PROCEDURAL HISTORY
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.
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
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. 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
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.
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
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 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.
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.
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.
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.
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.
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.
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
Bruno, the sole witness in opposition to the motions for
preliminary injunction,  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
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
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.
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.
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. 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
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