Judgment rendered November 19, 2025. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,549-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
BOSSIER PARISH POLICE Plaintiff-Appellee JURY
versus
ROY GENE HICKS, III and Defendants-Appellants ALLSTAR CONSTRUCTION CLEANUP & HAULING, LLC
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 165,323
Honorable Allen Parker Self, Jr., Judge
HARGROVE, SMELLEY & STRICKLAND Counsel for Appellants By: Parker W. Maxwell
PATRICK R. JACKSON Counsel for Appellee Bossier Parish Attorney
WIENER, WEISS & MADISON, APC By: Reid A. Jones
Before PITMAN, THOMPSON, and HUNTER, JJ. PITMAN, C. J.
Defendants-Appellants Roy Gene Hicks, III and Allstar Construction
Cleanup & Hauling, LLC (collectively, “Hicks”) appeal in part the district
court’s granting of a preliminary injunction in favor of Plaintiff-Appellee
Bossier Parish Police Jury (the “Police Jury”). On appeal, Hicks filed an
exception of prescription as to the Police Jury’s claim regarding the
driveway. For the following reasons, we sustain the exception of
prescription, vacate the preliminary injunction regarding the driveway,
dismiss with prejudice the Police Jury’s claim regarding the driveway and
remand for further proceedings regarding the zoning claim.
FACTS
On July 15, 2021, the Police Jury filed a petition for injunctive relief
against Hicks. It stated that on August 25, 2020, it received a complaint
concerning a property located at 297 Linton Road in Benton, Louisiana (the
“Property”), that was being used for business operations but was zoned for
residential and agricultural use. It also alleged that commercial vehicles
were accessing the Property by way of Edwards Street, a dead-end road in
the Edwards Subdivision built for the use of the subdivision’s residents and
guests. It alleged that Hicks constructed a concrete driveway on parish
property without the knowledge or consent of the parish, in violation of
Bosser Parish Ordinance 94-111.1 On July 8, 2021, the Police Jury sent
1 Ordinance 94-111 states: Any person desiring to construct a driveway or entrance into a parish highway or street from privately owned property shall apply to the police jury by written request for a permit to install or construct any such driveway extending onto the public road or street; and upon receipt of such request by the policy jury, it shall be the duty of the parish engineer or road superintendent to inspect the location of such driveway installation and recommend to the private owner the required size of the drainage Hicks a letter advising him that the driveway was constructed over an
existing metal culvert, that he failed to request a driveway permit and that he
had 14 days to remove the driveway and culvert. The Police Jury alleged
that as of the date of the petition, it had reason to believe that Hicks
continued to operate his business from his home and to access the Property
from the illegal driveway. It requested that the court issue a temporary
restraining order restraining, enjoining and prohibiting Hicks from
proceeding with any further operation of a commercial business at the
residence; requiring him to remove all heavy machinery, excessive debris
and building materials being housed on the Property; requiring him to
remove the driveway off parish property; and prohibiting him from illegally
accessing the Property from Edwards Street.
On September 29, 2021, Hicks filed an answer. He denied the Police
Jury’s allegations that the Property was being used for business operations.
He stated that all materials and equipment found on the Property were
proper for residential and agricultural zoning. He argued that the Police
Jury’s claim regarding the driveway violation is barred. He alleged a police
juror informed him that a permit was not required for the driveway. He
stated that a former owner of the Property granted a servitude to the
developer of the Edwards Subdivision; and, in return, the developer granted
him the right to build an asphalt road. He stated that all owners of the
Property have accessed it from Edwards Street and have never received
communication that they were prohibited from doing so. He also raised
affirmative defenses, including estoppel, comparative fault and prescription.
under such driveway and, further, to have such driveway placed at the proper elevation to ensure correct drainage. 2 A hearing was held on January 23, 2025. The parties elected to
submit affidavits in lieu of live witness testimony.2 Counsel for the Police
Jury stated that Hicks purchased the Property in 2018 and that his neighbors
began complaining of commercial activity in 2020. He referred to
photographs showing large trucks and commercial equipment bearing
Hicks’s company’s name and/or logo and also showing large piles of dirt
and rock. Counsel stated that complaints regarding the driveway arose
because commercial vehicles drove through the Edwards Subdivision, of
which the Property is not a part. He argued that Ordinance 94-111 requires
private owners to obtain a permit in order to connect their property to a
parish road but that Hicks did not request a permit. Counsel for Hicks
alleged that the photographs introduced by the Police Jury were taken in
2020 and that they differ greatly from photographs taken two weeks before
trial. He stated that the affidavits of the previous owners of the Property
show a historical use of the driveway and that a prior owner constructed it
pursuant to a 1979 servitude and Hicks resurfaced it in March 2021. He
contended that Ordinance 94-111 concerns drainage and that there is no
evidence that the driveway has ever impacted drainage. In response, counsel
for the Police Jury noted that Ordinance 94-111 had been in place since 1950
and that there is no evidence that any owner of the Property applied for a
written permit. Counsel also stated that a police juror cannot individually
grant a permit and that it is a citizen’s responsibility to comply with the law.
2 The Police Jury offered the affidavits of Eric Hudson, the parish engineer; Megan Ramos, the parish secretary; and Kelly Barnett, a land and title abstractor. Hicks offered his affidavit and the affidavits of previous owners of the Property, i.e., Dr. B.M. Cooley, Stephen Jay Brown and Nancy Trosclair, and of John French, an engineer. 3 On February 10, 2025, the district court filed an opinion and order. It
noted that although the Police Jury might have difficulty proving that Hicks
was actively engaged in commercial business on the Property, the evidence
suggested that activity may have occurred previously. In order to maintain
the status quo, the district court issued the preliminary injunction prohibiting
Hicks’s engagement in any commercial activities on the Property in
accordance with its current zoning. It also granted a preliminary injunction
prohibiting the use of the driveway constructed by Hicks.
On February 24, 2025, the district court filed a judgment granting the
Police Jury’s application for preliminary injunction. It ordered that Hicks is
enjoined from conducting business or commercial activities and from storing
commercial or other heavy equipment on the Property, provided that he may
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Judgment rendered November 19, 2025. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,549-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
BOSSIER PARISH POLICE Plaintiff-Appellee JURY
versus
ROY GENE HICKS, III and Defendants-Appellants ALLSTAR CONSTRUCTION CLEANUP & HAULING, LLC
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 165,323
Honorable Allen Parker Self, Jr., Judge
HARGROVE, SMELLEY & STRICKLAND Counsel for Appellants By: Parker W. Maxwell
PATRICK R. JACKSON Counsel for Appellee Bossier Parish Attorney
WIENER, WEISS & MADISON, APC By: Reid A. Jones
Before PITMAN, THOMPSON, and HUNTER, JJ. PITMAN, C. J.
Defendants-Appellants Roy Gene Hicks, III and Allstar Construction
Cleanup & Hauling, LLC (collectively, “Hicks”) appeal in part the district
court’s granting of a preliminary injunction in favor of Plaintiff-Appellee
Bossier Parish Police Jury (the “Police Jury”). On appeal, Hicks filed an
exception of prescription as to the Police Jury’s claim regarding the
driveway. For the following reasons, we sustain the exception of
prescription, vacate the preliminary injunction regarding the driveway,
dismiss with prejudice the Police Jury’s claim regarding the driveway and
remand for further proceedings regarding the zoning claim.
FACTS
On July 15, 2021, the Police Jury filed a petition for injunctive relief
against Hicks. It stated that on August 25, 2020, it received a complaint
concerning a property located at 297 Linton Road in Benton, Louisiana (the
“Property”), that was being used for business operations but was zoned for
residential and agricultural use. It also alleged that commercial vehicles
were accessing the Property by way of Edwards Street, a dead-end road in
the Edwards Subdivision built for the use of the subdivision’s residents and
guests. It alleged that Hicks constructed a concrete driveway on parish
property without the knowledge or consent of the parish, in violation of
Bosser Parish Ordinance 94-111.1 On July 8, 2021, the Police Jury sent
1 Ordinance 94-111 states: Any person desiring to construct a driveway or entrance into a parish highway or street from privately owned property shall apply to the police jury by written request for a permit to install or construct any such driveway extending onto the public road or street; and upon receipt of such request by the policy jury, it shall be the duty of the parish engineer or road superintendent to inspect the location of such driveway installation and recommend to the private owner the required size of the drainage Hicks a letter advising him that the driveway was constructed over an
existing metal culvert, that he failed to request a driveway permit and that he
had 14 days to remove the driveway and culvert. The Police Jury alleged
that as of the date of the petition, it had reason to believe that Hicks
continued to operate his business from his home and to access the Property
from the illegal driveway. It requested that the court issue a temporary
restraining order restraining, enjoining and prohibiting Hicks from
proceeding with any further operation of a commercial business at the
residence; requiring him to remove all heavy machinery, excessive debris
and building materials being housed on the Property; requiring him to
remove the driveway off parish property; and prohibiting him from illegally
accessing the Property from Edwards Street.
On September 29, 2021, Hicks filed an answer. He denied the Police
Jury’s allegations that the Property was being used for business operations.
He stated that all materials and equipment found on the Property were
proper for residential and agricultural zoning. He argued that the Police
Jury’s claim regarding the driveway violation is barred. He alleged a police
juror informed him that a permit was not required for the driveway. He
stated that a former owner of the Property granted a servitude to the
developer of the Edwards Subdivision; and, in return, the developer granted
him the right to build an asphalt road. He stated that all owners of the
Property have accessed it from Edwards Street and have never received
communication that they were prohibited from doing so. He also raised
affirmative defenses, including estoppel, comparative fault and prescription.
under such driveway and, further, to have such driveway placed at the proper elevation to ensure correct drainage. 2 A hearing was held on January 23, 2025. The parties elected to
submit affidavits in lieu of live witness testimony.2 Counsel for the Police
Jury stated that Hicks purchased the Property in 2018 and that his neighbors
began complaining of commercial activity in 2020. He referred to
photographs showing large trucks and commercial equipment bearing
Hicks’s company’s name and/or logo and also showing large piles of dirt
and rock. Counsel stated that complaints regarding the driveway arose
because commercial vehicles drove through the Edwards Subdivision, of
which the Property is not a part. He argued that Ordinance 94-111 requires
private owners to obtain a permit in order to connect their property to a
parish road but that Hicks did not request a permit. Counsel for Hicks
alleged that the photographs introduced by the Police Jury were taken in
2020 and that they differ greatly from photographs taken two weeks before
trial. He stated that the affidavits of the previous owners of the Property
show a historical use of the driveway and that a prior owner constructed it
pursuant to a 1979 servitude and Hicks resurfaced it in March 2021. He
contended that Ordinance 94-111 concerns drainage and that there is no
evidence that the driveway has ever impacted drainage. In response, counsel
for the Police Jury noted that Ordinance 94-111 had been in place since 1950
and that there is no evidence that any owner of the Property applied for a
written permit. Counsel also stated that a police juror cannot individually
grant a permit and that it is a citizen’s responsibility to comply with the law.
2 The Police Jury offered the affidavits of Eric Hudson, the parish engineer; Megan Ramos, the parish secretary; and Kelly Barnett, a land and title abstractor. Hicks offered his affidavit and the affidavits of previous owners of the Property, i.e., Dr. B.M. Cooley, Stephen Jay Brown and Nancy Trosclair, and of John French, an engineer. 3 On February 10, 2025, the district court filed an opinion and order. It
noted that although the Police Jury might have difficulty proving that Hicks
was actively engaged in commercial business on the Property, the evidence
suggested that activity may have occurred previously. In order to maintain
the status quo, the district court issued the preliminary injunction prohibiting
Hicks’s engagement in any commercial activities on the Property in
accordance with its current zoning. It also granted a preliminary injunction
prohibiting the use of the driveway constructed by Hicks.
On February 24, 2025, the district court filed a judgment granting the
Police Jury’s application for preliminary injunction. It ordered that Hicks is
enjoined from conducting business or commercial activities and from storing
commercial or other heavy equipment on the Property, provided that he may
conduct those activities contemplated in a residential and agricultural zone.
It listed equipment that could be stored on the Property. It also ordered that
Hicks is enjoined from using the driveway constructed on the Property to
access Edwards Street. It stated that the preliminary injunction would
remain in effect pending a trial on the merits.
Hicks appeals the preliminary injunction regarding the driveway. He
abandons any assignments of error related to the alleged zoning violations.
On appeal, he filed a peremptory exception of prescription as to the
driveway claim, which this court referred to the merits of the appeal.3
3 An appellate court may consider a peremptory exception filed for the first time in that court if the exception is pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears of record. La. C.C.P. art. 2163(A). Although the Police Jury filed an opposition to Hicks’s peremptory exception of prescription, it did not demand that the case be remanded to the trial court for a trial of the exception, as provided for in La. C.C.P. art. 2163(B). 4 DISCUSSION
Hicks argues that the district court failed to apply the five-year
prescriptive period that extinguished any enforcement action brought after
1984, when the driveway had already existed for five years without
challenge. He argues that since prescription ran in 1984, the driveway
became a statutorily lawful, vested nonconforming improvement.
The Police Jury argues that the five-year prescriptive period does not
apply because Ordinance 94-111 is not a zoning restriction, building
restriction or subdivision regulation but, rather, a condition on the use of
public property. It contends that applying La. R.S. 9:5625 would undermine
fundamental principles of public ownership.
La. R.S. 9:5625 states, in pertinent part:
(A)(1) All actions civil or criminal, created by statute, ordinance, or otherwise, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities, or their instrumentalities or by any person, firm, or corporation to require enforcement of and compliance with any zoning restriction, building restriction, or subdivision regulation, imposed by any parish, municipality, or an instrumentality thereof, and based upon the violation by any person, firm, or corporation of such restriction or regulation, must be brought within five years from the first act constituting the commission of the violation. *** (B) In all cases where the prescription provided for herein has accrued, the particular property involved in the violation of the zoning restriction, building restriction or subdivision regulation shall enjoy the same legal status as land uses, construction features of buildings or subdivisions made nonconforming by the adoption of any zoning restriction, building restriction or subdivision regulation. However, the governing authority may provide for the removal of nonconforming signs and billboards in accord with the provisions of R.S. 33:4722.
The prescriptive period set forth in La. R.S. 9:5625 is applicable to
this case as Ordinance 94-111 is a building restriction. The “first act 5 constituting the commission of the violation,” as contemplated by La.
R.S. 9:5625(A)(1), was the original construction of the driveway in 1979
without a permit. Prescription, therefore, ran five years from this date, i.e.,
in 1984, and the Police Jury’s 2021 petition for injunctive relief is untimely
as to its claim regarding the driveway. The driveway now enjoys
nonconforming status by operation of La. R.S. 9:5625(B). See McCormick
v. Ford, 24-01007 (La. 5/9/25), 408 So. 3d 932.
Accordingly, we sustain Hicks’s exception of prescription as to the
driveway claim, vacate the preliminary injunction regarding the driveway
and dismiss this claim with prejudice. We need not address Hicks’s
remaining assignments of error as to this claim. As Hicks does not appeal
the preliminary injunction regarding the zoning violations, we will not
address this portion of the district court’s judgment but remand the matter
for further proceedings as to this claim.
CONCLUSION
For the foregoing reasons, we sustain the exception of prescription
filed on appeal by Defendants-Appellants Roy Gene Hicks, III and Allstar
Construction Cleanup & Hauling, LLC, vacate the preliminary injunction
regarding the driveway, dismiss with prejudice the Police Jury’s claim
regarding the driveway and remand for further proceedings regarding the
zoning claim. Costs of this appeal are assessed to Plaintiff-Appellee Bossier
Parish Police Jury in the amount of $1,803.50.
EXCEPTION OF PRESCRIPTION SUSTAINED;
PRELIMINARY INJUNCTION VACATED IN PART; CLAIM
DISMISSED WITH PREJUDICE; REMANDED.