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Jacobs v. Balentine Carbondale Holdings, LLC

Court of Appeals of Louisiana, Fourth Circuit

August 28, 2019

TERRENCE JACOBS
v.
BALENTINE CARBONDALE HOLDINGS, LLC

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-12688, DIVISION "N-8" Honorable Ethel Simms Julien, Judge.

          Yvette Anne D'Aunoy Rebecca S. Miller Marianne Garvey THE MIDDLEBERG RIDDLE GROUP, COUNSEL FOR PLAINTIFF/APPELLANT.

          Jimmy A. Castex, Jr. CASTEX ESNARD, L.L.C., COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins.

          SANDRA CABRINA JENKINS JUDGE.

         In this appeal, Terrence Jacobs challenges the trial court's ruling on the merits of his underlying boundary action decided within its January 25, 2019 judgment following a summary hearing on Jacobs' request for a preliminary injunction. For the reasons that follow, we strike that portion of the judgment addressing the merits of the boundary action, and remand for a trial consistent this with this opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         On December 19, 2018, Jacobs filed a boundary action against appellee Balentine Carbondale Holdings, LLC ("Balentine"), asking the trial court to set the boundary line between adjacent properties in the French Quarter owned by Jacobs and Balentine. On December 20, 2018, Jacobs filed a verified petition for a preliminary injunction and a temporary restraining order, seeking to enjoin Balentine from making any construction on or attachments to the fence separating the properties, pending a decision on the underlying boundary action.

         On January 19, 2019, as a request for a preliminary injunction, the matter came for hearing based solely upon the parties' verified pleadings and supporting affidavits, rather than taking proof as in ordinary cases. See La. C.C.P. art. 3609. On January 25, 2019, after considering argument of counsel and upon its review of the verified petition, affidavits, exhibits, the opposition memorandum, and applicable law, the trial court denied Jacobs' request for a preliminary injunction. In the judgment, the trial court also stated that the disputed fence is located on the Balentine property:

IT IS ORDERED, ADJUDGED AND DECREED, that Terrence Jacobs' application for injunctive relief is hereby DENIED, for those reasons orally stated in Court and based on the lack of sufficient evidence that Jacobs will likely prevail on the merits of his claims, and that the fence (also referred to as "the wall" by the parties) belongs to and is located on the Balentine property. (Emphasis added.)

         On February 6, 2019, Jacobs filed a Motion for Devolutive Appeal, which was granted on that date.

         DISCUSSION

         Jacobs lists a single assignment of error. Jacobs contends that the trial court erred in deciding the underlying boundary action at the hearing on the preliminary injunction. According to Jacobs, the only issue at the January 19, 2019 hearing was whether the preliminary injunction should issue maintaining the status quo until the boundary action could be heard. Jacobs argues that the trial court legally erred in ruling on the merits of the boundary action, i.e., declaring "the fence . . . belongs to and is located on the Balentine property," without affording Jacobs a full trial.[1] We agree.

         The record does not contain a transcript of the injunction hearing. The January 25, 2019 judgment states that it is based on the trial court's review of the verified petition, affidavits, exhibits, the opposition memorandum, and applicable law. Although we cannot determine whether evidence was offered by the parties, we find it unnecessary to remand for a transcribed hearing on the preliminary injunction because Jacobs doesn't challenge the denial of his request for an injunction. We address only Jacobs' position on the single legal issue he raises, which is whether the trial court legally erred in deciding the merits of the boundary action in a summary injunction proceeding, which is "dispositive ...


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