Gautreau v. Trahan

971 So. 2d 445, 2007 WL 4245852
CourtLouisiana Court of Appeal
DecidedDecember 5, 2007
Docket07-0875
StatusPublished
Cited by2 cases

This text of 971 So. 2d 445 (Gautreau v. Trahan) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gautreau v. Trahan, 971 So. 2d 445, 2007 WL 4245852 (La. Ct. App. 2007).

Opinion

971 So.2d 445 (2007)

Brent D. GAUTREAU, et ux
v.
Paul M. TRAHAN, et ux.

No. 07-0875.

Court of Appeal of Louisiana, Third Circuit.

December 5, 2007.

Peter F. Caviness Dauzat, Falgoust, Caviness and Bienvenu, L.L.P., Opelousas, LA, for Plaintiffs/Appellees, Brent D. Gautreau, Pamela A. Gautreau.

Stan Gauthier, II, Kristi Hushner Oubre, Jonathan D. Mayeux, Stan Gauthier, II A Law Corporation, Lafayette, LA, for Defendants/Appellants, Paul M. Trahan, Peggy G. Trahan.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.

*446 PETERS, J.

This appeal arises from the trial court judgment granting a preliminary injunction prohibiting the discharge of firearms from property belonging to the defendants, Paul and Peggy Trahan, in the direction of and across the property of the plaintiffs, Brent and Pamela Gautreau. For the following reasons, we affirm the judgment of the trial court in all respects.

DISCUSSION OF THE RECORD

The Gautreaus and the Trahans own immovable property adjacent to each other near Sunset, Louisiana, in St. Landry Parish. Both couples maintain residences on their respective properties. The Gautreaus maintain access to their residence by a dirt road located on the boundary line separating the properties. The ownership of the land upon which the dirt road is located is in dispute and was the subject of a March 23, 2007 suit filed by the Gautreaus to fix the boundary between their properties and to enjoin the Trahans from encroaching upon or otherwise using the Gautreau property. The Trahans answered the suit generally denying the allegations.

The Gautreaus amended their original petition on May 3, 2007, or some six weeks after filing the initial suit. In their supplemental and amending petition, the Gautreaus sought injunctive relief to prevent the Trahans, and other persons acting with their consent, from discharging firearms on the Trahan property in such a manner that the projectiles or rounds fired from the firearms might enter upon or cross the Gautreau property. The Gautreaus sought this relief based on the assertion that the Trahans, and others acting with their consent or participation, had begun discharging firearms on their property in the direction of the Gautreau property since the filing of the March 23, 2007 suit. In response to the amending petition, the trial court issued a temporary restraining order and set a hearing date for the requested preliminary injunction. In their answer to the amending petition, the Trahans admitted that Paul Trahan had discharged firearms in the direction of the Gautreau property, but denied all other allegations.

At the May 11, 2007 preliminary injunction hearing, the evidence established without dispute that Paul Trahan had constructed a homemade backstop for target practice purposes approximately 380 feet south of a coulee which divides the two properties at issue, and that the Gautreau home and yard are located immediately north of the coulee, although not directly in line with the backstop. However, the Gautreaus often use the property directly in line with the backstop. Mr. Trahan initially constructed the backstop using railroad cross ties, and it originally measured five feet wide and six feet high. After the Gautreaus first complained, Officer Joseph Mamou of the St. Landry Parish Sheriff's Office came to the Trahan house, observed the backstop, and recommended that Mr. Trahan increase the size of the backstop. Based on this recommendation, Mr. Trahan increased the width to fifteen feet and the height to eight feet. The photograph of the backstop introduced into evidence by the Trahans reflects a crudely built, straight wall consisting of an assortment of cross ties, boards, logs, and metal sheets.

Paul Trahan acknowledged in his testimony that he used the backstop for target practice purposes at least three times per week for thirty-minute periods and that, on occasion, he allowed his son and brother-in-law to fire weapons toward the backstop. Those using the shooting range would fire at paper targets mounted on the backstop from a range of approximately *447 thirty feet. Additionally, Mr. Trahan admitted using several different weapons, including a .45 caliber pistol firing hollow point bullets, a .357 magnum pistol, a .22 caliber pistol, and a .380 pistol. According to Mr. Trahan, the .45 caliber weapon had a penetration depth of three inches into the backstop, and the .357 magnum weapon had a four-inch penetration depth. He acknowledged that absent the protection of the backstop, both weapons had a range far in excess of the 380 feet to his property line.[1] However, he asserted that the activity presented no danger because he never missed the backstop. Furthermore, he denied ever shooting in any direction except toward the backstop.

With regard to the safety issue as well as the timing and direction of fire, the Gautreaus presented evidence contrary to Mr. Trahan's testimony. Brent Gautreau testified that the firing did not begin until he filed the boundary suit, and that the timing of the firing always coincided with times when he and his family or guests were using the property immediately behind the backstop. That is to say, when individuals were physically in the danger zone. Pamela Gautreau testified to observing an individual near the coulee shooting in the direction of her home and that on occasion she would hear shooting that obviously did not hit the backstop because there was no "reverb." Camille Gautreau, the plaintiffs' fourteen-year-old daughter, testified that one day, as she rode her horse along the dirt road on the property line, Mr. Trahan fired a gun across the road ahead of her, and that approximately three weeks before the hearing on the preliminary injunction, a similar incident happened when she rode her four-wheeler on the dirt road. Eddie Gautreau, Brent Gautreau's father, testified that he had been on the property on numerous occasions when shots were fired, and that the only defense the family had was to retreat inside the house. Officer Christopher Malang of the Cankton Police Department testified that on the occasion when he was called to investigate the Gautreaus' complaint, he heard five shots ring out from the direction of the Trahan property as the Gautreaus' daughter walked into what appeared to be the line of fire, and he ordered everyone back into the house. When he went to the Trahan home to investigate, Mr. Trahan told him that he had been firing toward the backstop, but the officer concluded that the shots he heard did not originate from behind the backstop; that they originated from no more than one hundred yards away as he stood in a clearing near the Gautreau home.

After completion of the evidence, the trial court issued a preliminary injunction enjoining and prohibiting the Trahans and anyone acting in concert with them or participating with them from discharging firearms and other weapons in the direction of or across the property of the Gautreaus. The trial court signed a judgment to this effect on June 14, 2007, and the Trahans have appealed.

OPINION

"An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction." La. Code Civ.P. art. 3612(B). A trial court's determination as to whether to issue a preliminary injunction is subject to the abuse of discretion standard of review. Smith v. W. Va. Oil & Gas, Co., 373 So.2d 488 (La.1979).

The judgment signed by the trial court on June 14, 2007 restrains, enjoins, and prohibits the Trahans, and all those acting *448

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971 So. 2d 445, 2007 WL 4245852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gautreau-v-trahan-lactapp-2007.