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Newburger v. Orkin, L.L.C.

Court of Appeals of Louisiana, Third Circuit

November 6, 2019

GERALD A. NEWBURGER, JR.
v.
ORKIN, L.L.C., ET AL.

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 261, 969 HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE

          William Alan Pesnell Alan Pesnell Lawyer LLC COUNSEL FOR: Plaintiff/Appellant - Gerald A. Newburger, Jr.

          Barbara Bell Melton Faircloth Melton, LLC COUNSEL FOR: Defendant/Appellee - Orkin, L.L.C.

          Matthew Nowlin Keiser Law Firm, P.L.C. COUNSEL FOR: Defendant/Appellee - Cypress Point at Lake District Condominium Association, Inc.

          Christopher J. Roy, Sr. COUNSEL FOR: Plaintiff/Appellant - Gerald A. Newburger, Jr.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE.

         Plaintiff, Gerald A. Newburger, Jr., filed a petition for injunctive relief seeking to enjoin Cypress Point at Lake District Condominium Association, Inc. (Cypress Point) and Orkin, L.L.C. (Orkin) from performing pest control operations at or near Plaintiff's condominium. The matter proceeded to trial on the permanent injunction against Cypress Point. After Plaintiff completed the presentation of his evidence, Cypress Point moved for involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B). The trial court granted the motion, finding that Plaintiff failed to establish, by a preponderance of the medical evidence, that he will suffer irreparable harm as a result of Cypress Point conducting pest control operations at or near his condominium. As our review of the record reveals no manifest error or abuse of discretion, we affirm the trial court's judgment.

         I.

         ISSUES

         Plaintiff raises the following issues for this court's review:

(1) whether Plaintiff presented evidence of irreparable harm to his person being caused by Defendant's pest control operations on motion for involuntary dismissal;
(2) whether Plaintiff presented prima facie evidence that Defendant's pest control operations caused his physical problems on motion for involuntary dismissal;
(3) whether the trial court properly dismissed Plaintiff's case on a motion for involuntary dismissal; and,
(4) whether the trial court erred in failing to introduce the statement of Dr. Robert C. Morrison into the record, given the defense ...

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