STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-721
FELIX MOUTON, JR.
VERSUS
RAPIDES PARISH POLICE JURY
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 218920 HONORABLE GEORGE C. METOYER, DISTRICT JUDGE
********** J. DAVID PAINTER JUDGE **********
Court composed of John D. Saunders, Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, and J. David Painter, Judges.
AFFIRMED AS AMENDED.
SAUNDERS, J., dissents and assigns written reasons.
Daniel E. Broussard, Jr. P.O. Box 1311 Alexandria, LA 71309 Attorney for Defendant-Appellant: Rapides Parish Police Jury
Malcolm X. Lavardain 626 Eighth St. Alexandria, LA 71301 Attorney for Plaintiff-Appellee: Felix Mouton, Jr. PAINTER, Judge.
The Defendant, Rapides Parish Police Jury (“the RPPJ”), appeals the trial
court’s failure to award damages for wrongful issuance of a temporary restraining
order (TRO). The Plaintiff, Felix Mouton, Jr., answered the appeal asserting that the
trial court erred in assessing him with attorney’s fees pursuant to La.Code Civ.P. art.
3608. Finding that an award of damages is appropriate, we amend the judgment of
the trial court and affirm the judgment as amended.
FACTS AND PROCEDURAL HISTORY
Mouton was employed by the RPPJ as Work Investment Action Operations
Director. He was placed on administrative leave with pay pending an investigation
of certain complaints. At its scheduled meeting on November 8, 2004, the RPPJ
planned to consider terminating Mouton’s employment. On that date, Mouton
obtained an ex parte TRO restraining the RPPJ from terminating him or altering any
term of his employment at that meeting. On November 9, 2004, Mouton filed a
Petition for Injunction seeking a preliminary injunction in the form of the TRO and
asking for damages under the Louisiana Whistleblower Statute, La.R.S. 23:967.
The RPPJ responded by filing a dilatory exception of unauthorized use of
summary proceedings. Therein, it asserted that the issuance of a TRO without notice
to the RPPJ was inappropriate under the provisions of La.Code Civ.P. art. 3603. The
RPPJ also filed a motion to dissolve the TRO and an exception of no cause of action,
asserting again that the TRO was wrongfully issued and, additionally, that Mouton
had no cause of action under La.R.S. 23:967.
At a January 3, 2005 hearing on the petition for injunctive relief and the
exception of unauthorized use of summary proceedings, Mouton moved to dismiss
1 all his claims for injunctive relief with prejudice. The court granted that motion and
dismissed the claims for injunctive relief.
On January 31, 2005, a hearing was held on the RPPJ’s exception of no cause
of action and its motion for attorney’s fees and damages in connection with the
wrongful issuance of the TRO. The trial court granted the exception and awarded
attorney’s fees in the amount of $4,947.87 but denied the request for damages. The
RPPJ appeals this ruling. Mouton filed an Answer to Appeal.
DISCUSSION
Motion to Dismiss Answer to Appeal
In his answer to the appeal, Mouton asserts that the trial court erred in
awarding attorney’s fees . The RPPJ argues that the answer to its appeal should be
dismissed because Mouton acquiesced in the judgment by paying the attorney’s fee.
La.Code Civ.P. art. 2085 states that:
An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.
However, “[t]he party alleging acquiescence must establish by direct or
circumstantial evidence that the party now appealing intended to acquiesce.” Vincent
v. State Farm Mut. Auto. Ins. Co., 95-1538, pp. 3-4 (La.App. 3 Cir. 4/3/96), 671
So.2d 1127, 1129 (citation omitted). We find no evidence of record to establish that
Mouton paid the fees, much less that he intended to acquiesce in the judgment.
Attorney’s Fees
Mouton asserts that the trial court erred in awarding attorney’s fees. He
suggests that attorney’s fees were not warranted because he voluntarily dismissed the
2 TRO after the discovery process revealed that he did not have a basis for arguing for
existing law to be overturned. It is well settled, however, that even where “an
injunction [is] voluntarily dismissed, attorney's fees may still be awarded if the
injunction was wrongfully issued.” Scheyd, Inc. v. Jefferson Parish Sch. Bd., 412
So.2d 567, 569 (La.1982) (citation omitted).
In this case, Mouton had a TRO issued without notice. He admitted in his
“Certificate of Compliance with La. Code of Civil Procedure Article 3603” that he
did not attempt to notify the RPPJ. Further, the harm to which he would have been
exposed by the RPPJ’s action, termination of his employment, would have been
pecuniary. Louisiana Code of Civil Procedure Article 3603 provides, in pertinent
part, that:
A. A temporary restraining order shall be granted without notice when:
(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and
(2) The applicant’s attorney certifies to the court in writing the efforts which have been made to give the notice or the reasons supporting his claim that notice should not be required.
“Irreparable injury is injury or loss for which damages cannot be measured by
a pecuniary standard or which cannot be adequately compensated in money
damages.” Brannan v. Talbot, 29,692, p. 10 (La.App. 2 Cir. 4/2/97), 691 So.2d 848,
854, writ denied, 97-1419 (La. 9/19/97), 701 So.2d 172 (citations omitted). See also
Succession of Vice, 385 So.2d 554 (La.App. 3 Cir.), writ refused, 392 So.2d 1066
(La.1980). Therefore, the trial court correctly concluded that the TRO was wrongfully
issued.
3 Furthermore, Louisiana Code of Civil Procedure Article 3608 provides that:
The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or a preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on a motion or after trial on the merits.
Accordingly, the determination as to whether to award attorney’s fees is within
the trial court’s discretion. The decision to award attorney’s fees in this case is well
founded. Although the claims for injunctive relief were ultimately dismissed
voluntarily, the RPPJ had no way of knowing that this would be the outcome and had
to defend themselves from the claims while Mouton continued to pursue them. The
bill rendered by counsel for the RPPJ and the check evidencing payment thereof by
the RPPJ were filed into evidence. The bill shows two months of services, including
attendance at depositions, court hearings, and conferences and pleadings drafted and
filed. Mouton does not contest the amount charged by counsel for the RPPJ. In light
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-721
FELIX MOUTON, JR.
VERSUS
RAPIDES PARISH POLICE JURY
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 218920 HONORABLE GEORGE C. METOYER, DISTRICT JUDGE
********** J. DAVID PAINTER JUDGE **********
Court composed of John D. Saunders, Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, and J. David Painter, Judges.
AFFIRMED AS AMENDED.
SAUNDERS, J., dissents and assigns written reasons.
Daniel E. Broussard, Jr. P.O. Box 1311 Alexandria, LA 71309 Attorney for Defendant-Appellant: Rapides Parish Police Jury
Malcolm X. Lavardain 626 Eighth St. Alexandria, LA 71301 Attorney for Plaintiff-Appellee: Felix Mouton, Jr. PAINTER, Judge.
The Defendant, Rapides Parish Police Jury (“the RPPJ”), appeals the trial
court’s failure to award damages for wrongful issuance of a temporary restraining
order (TRO). The Plaintiff, Felix Mouton, Jr., answered the appeal asserting that the
trial court erred in assessing him with attorney’s fees pursuant to La.Code Civ.P. art.
3608. Finding that an award of damages is appropriate, we amend the judgment of
the trial court and affirm the judgment as amended.
FACTS AND PROCEDURAL HISTORY
Mouton was employed by the RPPJ as Work Investment Action Operations
Director. He was placed on administrative leave with pay pending an investigation
of certain complaints. At its scheduled meeting on November 8, 2004, the RPPJ
planned to consider terminating Mouton’s employment. On that date, Mouton
obtained an ex parte TRO restraining the RPPJ from terminating him or altering any
term of his employment at that meeting. On November 9, 2004, Mouton filed a
Petition for Injunction seeking a preliminary injunction in the form of the TRO and
asking for damages under the Louisiana Whistleblower Statute, La.R.S. 23:967.
The RPPJ responded by filing a dilatory exception of unauthorized use of
summary proceedings. Therein, it asserted that the issuance of a TRO without notice
to the RPPJ was inappropriate under the provisions of La.Code Civ.P. art. 3603. The
RPPJ also filed a motion to dissolve the TRO and an exception of no cause of action,
asserting again that the TRO was wrongfully issued and, additionally, that Mouton
had no cause of action under La.R.S. 23:967.
At a January 3, 2005 hearing on the petition for injunctive relief and the
exception of unauthorized use of summary proceedings, Mouton moved to dismiss
1 all his claims for injunctive relief with prejudice. The court granted that motion and
dismissed the claims for injunctive relief.
On January 31, 2005, a hearing was held on the RPPJ’s exception of no cause
of action and its motion for attorney’s fees and damages in connection with the
wrongful issuance of the TRO. The trial court granted the exception and awarded
attorney’s fees in the amount of $4,947.87 but denied the request for damages. The
RPPJ appeals this ruling. Mouton filed an Answer to Appeal.
DISCUSSION
Motion to Dismiss Answer to Appeal
In his answer to the appeal, Mouton asserts that the trial court erred in
awarding attorney’s fees . The RPPJ argues that the answer to its appeal should be
dismissed because Mouton acquiesced in the judgment by paying the attorney’s fee.
La.Code Civ.P. art. 2085 states that:
An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.
However, “[t]he party alleging acquiescence must establish by direct or
circumstantial evidence that the party now appealing intended to acquiesce.” Vincent
v. State Farm Mut. Auto. Ins. Co., 95-1538, pp. 3-4 (La.App. 3 Cir. 4/3/96), 671
So.2d 1127, 1129 (citation omitted). We find no evidence of record to establish that
Mouton paid the fees, much less that he intended to acquiesce in the judgment.
Attorney’s Fees
Mouton asserts that the trial court erred in awarding attorney’s fees. He
suggests that attorney’s fees were not warranted because he voluntarily dismissed the
2 TRO after the discovery process revealed that he did not have a basis for arguing for
existing law to be overturned. It is well settled, however, that even where “an
injunction [is] voluntarily dismissed, attorney's fees may still be awarded if the
injunction was wrongfully issued.” Scheyd, Inc. v. Jefferson Parish Sch. Bd., 412
So.2d 567, 569 (La.1982) (citation omitted).
In this case, Mouton had a TRO issued without notice. He admitted in his
“Certificate of Compliance with La. Code of Civil Procedure Article 3603” that he
did not attempt to notify the RPPJ. Further, the harm to which he would have been
exposed by the RPPJ’s action, termination of his employment, would have been
pecuniary. Louisiana Code of Civil Procedure Article 3603 provides, in pertinent
part, that:
A. A temporary restraining order shall be granted without notice when:
(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and
(2) The applicant’s attorney certifies to the court in writing the efforts which have been made to give the notice or the reasons supporting his claim that notice should not be required.
“Irreparable injury is injury or loss for which damages cannot be measured by
a pecuniary standard or which cannot be adequately compensated in money
damages.” Brannan v. Talbot, 29,692, p. 10 (La.App. 2 Cir. 4/2/97), 691 So.2d 848,
854, writ denied, 97-1419 (La. 9/19/97), 701 So.2d 172 (citations omitted). See also
Succession of Vice, 385 So.2d 554 (La.App. 3 Cir.), writ refused, 392 So.2d 1066
(La.1980). Therefore, the trial court correctly concluded that the TRO was wrongfully
issued.
3 Furthermore, Louisiana Code of Civil Procedure Article 3608 provides that:
The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or a preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on a motion or after trial on the merits.
Accordingly, the determination as to whether to award attorney’s fees is within
the trial court’s discretion. The decision to award attorney’s fees in this case is well
founded. Although the claims for injunctive relief were ultimately dismissed
voluntarily, the RPPJ had no way of knowing that this would be the outcome and had
to defend themselves from the claims while Mouton continued to pursue them. The
bill rendered by counsel for the RPPJ and the check evidencing payment thereof by
the RPPJ were filed into evidence. The bill shows two months of services, including
attendance at depositions, court hearings, and conferences and pleadings drafted and
filed. Mouton does not contest the amount charged by counsel for the RPPJ. In light
of these factors, the award of attorney’s fees made by the trial court was not an abuse
of discretion.
Damages
The RPPJ contends that the trial court erred in failing to make an award of
damages for wrongful issuance of the TRO. Mouton, on the other hand, argues that
the decision to award damages is purely discretionary with the trial court and that its
decision should not be overturned by this court. He further argues that, since he
voluntarily dismissed the TRO after discovering that he did not have an adequate
basis to challenge existing law, the trial court did not abuse its discretion in refusing
to award damages. As we have stated, the RPPJ had no way of knowing that Mouton
4 did not intend to pursue his claim. Further, while the wrongfully issued TRO was in
effect, the RPPJ continued to pay Mouton’s salary and fringe benefits while he
continued on administrative leave. While it is true that the trial court has great
discretion in deciding whether to make an award of damages in connection with the
dissolution of a wrongfully issued TRO, that discretion is not unlimited. Damages
should be awarded where they are appropriate.1 In this case, an award of damages is
warranted in the amount of salary and fringe benefits paid between November 8, 2004
and January 5, 2005, a total of $10,256.51.
CONCLUSION
For these reasons, the RPPJ’s motion to dismiss Mouton’s answer to the appeal
is denied. The trial court’s award of attorney’s fees is affirmed. The judgment of the
trial court is amended to include an award of damages in the amount of $10,256.51.
Costs of appeal are assessed to the Plaintiff, Felix Mouton, Jr.
1 Although that case was reversed on other grounds by the Lousiana Supreme Court, we agree with the reasoning in this regard set out in ARCO Oil & Gas Co., a Div. of Atlantic Richfield Co. v. Deshazer, 96-1344 (La.App. 3 Cir. 5/21/97), 698 So.2d 408, reversed on other grounds, 98-1487 (La.1/20/99), 728 So.2d 841.
5 NUMBER CA 05-0721
RAPIDES PARISH POLICY JURY
DISSENT
I respectfully dissent. I agree with the majority on all matters except the issue
of damages. The majority notes that awarding damages is within the trial court’s
discretion and should not be overturned absent abuse. It is then noted that the trial
court’s discretion is not unfettered and the majority concluded that damages should
be awarded in the amount of salary and fringe benefits paid to plaintiff while the TRO
was in effect. I disagree. Plaintiff dismissed his claims for injunctive relief after
investigating and analyzing his legal position. He conducted what certainly appears
to have been a good faith investigation into his legal rights and then simply decided
not to pursue his claim. It is also noteworthy that defendant chose to place Mr.
Mouton on leave during the two months in question. Had they not done so, he would
have been at work and would have earned his wages. Under these circumstances, I
do not believe that the trial court abused its discretion by failing to award damages
in the amount of the salary paid to Mr. Mouton while he was in the process of
analyzing his legal position.