Hairford v. Perkins

520 So. 2d 1053, 1987 WL 2445
CourtLouisiana Court of Appeal
DecidedDecember 9, 1987
Docket86-1190
StatusPublished
Cited by11 cases

This text of 520 So. 2d 1053 (Hairford v. Perkins) 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
Hairford v. Perkins, 520 So. 2d 1053, 1987 WL 2445 (La. Ct. App. 1987).

Opinion

520 So.2d 1053 (1987)

Jimmie HAIRFORD, et al., Plaintiffs-Appellees,
v.
John Henry PERKINS, Defendant-Appellant.

No. 86-1190.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1987.

*1054 Michael J. Johnson, Marksville, for plaintiffs-appellees.

John L. Dardenne, Jr., Baton Rouge, and Darrel D. Ryland, Marksville, for defendant-appellant.

Before DOUCET and KING, JJ., and CULPEPPER, J. Pro Tem.[*]

KING, Judge.

The main issues presented by this appeal are whether the trial court abused its discretion in granting plaintiffs' petition for a preliminary injunction, whether a judge ad hoc was the proper judge to hear defendant's motion to recuse the trial judge, and whether the recusal motion should have been granted.

Jimmy and Wayne Hairford (hereinafter referred to as plaintiffs) filed a petition for injunctive relief and damages seeking to prohibit John Henry Perkins (hereinafter referred to as defendant) from threatening the plaintiffs or from carrying a concealed weapon. A hearing was fixed, in accordance with law, for October 3, 1986

The defendant filed a motion for recusation of Judge B.C. Bennett, Jr., to whom the case had been assigned for trial, and a request to transfer the hearing of the recusal motion to another division of the court. Judge Bennett denied defendant's request to transfer the hearing of the recusal motion to another division of the court and instead appointed a judge ad hoc to hear the recusal motion. On October 1, 1986, a judge ad hoc heard the motion to recuse and denied the motion. Defendant applied for supervisory writs from this decision to the Third Circuit, Louisiana Court of Appeal. Writs were denied on October 3, 1986. Hairford v. Perkins, an unreported decision bearing Number 86-985 on the Docket of the Third Circuit, Louisiana Court of Appeal.

A hearing on plaintiffs' petition for a preliminary injunction was then held on October 3, 1986 before Judge Bennett. After the hearing the preliminary injunction was granted in part, enjoining defendant from "harming, harassing, or threatening petitioners, Jimmie Hairford and Wayne Hairford." The trial court did not grant the other relief sought by plaintiff.

The defendant filed a timely devolutive appeal seeking a reversal of the decision on the motion to recuse and the granting of the preliminary injunction. We affirm in part, reverse in part, and render judgment.

FACTS

This litigation is the result of a dispute involving adjoining landowners in rural Avoyelles Parish, Louisiana. The defendant is a domiciliary of East Baton Rouge Parish, who purchased approximately 250 acres in Coonville in Avoyelles Parish in order to raise cattle. The defendant owns a house, which is located on his land adjacent to the plaintiffs' property, that he uses on the weekends when he visits his property. Defendant enjoyed a good relationship with the plaintiffs until October, 1983.

The defendant testified that he received a call in Baton Rouge from plaintiff, Wayne Hairford, informing him that there were three people hunting on his property and asking for defendant's permission to remove the hunters from the property. The defendant instructed Wayne Hairford not to do anything because one of the hunters was an employee and the other was a close friend. He also testified that Wayne *1055 Hairford's father, plaintiff, Jimmie Hairford, called soon thereafter, irritated because of the defendant's failure to allow the Hairfords to remove the hunters. He was told by defendant to stay on his own property and that the hunters would do likewise.

On September 30, 1985 the defendant filed a complaint with the Avoyelles Parish Health Department regarding the discharge of raw sewage onto his property from a trailer owned by the plaintiff, Wayne Hairford. As a result of this complaint, a State Health Inspector made an investigation on September 30, 1985. The inspector testified that, upon investigation, he noticed that a trailer owned by Wayne Hairford had a sewer line which was draining raw sewage 20 feet into the defendant's property. He advised Mr. Hairford that he was in violation of the State Sanitary Code and that he would need to "install a proper approved system" within fifteen days. After several extensions, the problem was finally corrected by March 26, 1986. As a result of the complaint to the Board of Health and the subsequent inspection, problems between the parties began to escalate.

One of the acts of harassment complained of by the plaintiffs allegedly occurred in October, 1985. The plaintiff, Jimmie Hairford, testified that the defendant, armed with a .22 caliber pistol, drove his threewheeler onto plaintiff, Wayne Hairford's property threatening that he would kill him if there was anymore trouble. When questioned by defendant's counsel, he admitted that although the defendant was in possession of a handgun, he never pulled the handgun. The defendant denied the incident ever occurred.

Another incident complained of by the plaintiffs occurred on November 15, 1985. Plaintiff, Wayne Hairford, testified that on that day, he and his brother-in-law drove past the defendant, who was on his tractor, when obscene gestures were made by the defendant in their direction. Later that day, he encountered the defendant again and asked him why the obscene gestures were made. The defendant allegedly replied that he would make trouble and wanted the plaintiff to move. The plaintiff told the defendant if he was not left alone, he "was gonna whip his butt."

The defendant gave an entirely different version of the incident. He testified that he was driving down a nearby highway toward his hay pasture when the plaintiff, Wayne Hairford, pulled out of a neighbor's driveway in front of his tractor. He stated that the plaintiff ordered him to get down from his tractor so he could beat him up. The plaintiff, Wayne Hairford, left after another car pulled up behind the tractor. Defendant further testified that he was frightened by this encounter and that as a result, he took a pistol out of his tool box, which he used to kill snakes while in the pasture, and put it in his pocket. After this incident, he filed simple assault charges against the plaintiff who was arrested on November 16, 1985 and taken to jail. After plaintiff, Wayne Hairford, posted bail and got out of jail, he filed similar charges against the defendant. Both charges were ultimately dismissed by a grand jury.

After this encounter, defendant decided to have his property surveyed in order to determine whether a fence he had constructed between the adjoining lands was on his property or on the land belonging to the plaintiffs. The fence was originally built by the defendant in the Spring of 1978. At that time, the plaintiff, Jimmie Hairford, had asked the defendant to build the fence several feet back from its proposed location in order to give his son, plaintiff, Wayne Hairford, more room to maneuver his trailer on and off his property. After the survey was completed, it showed that the defendant's fence was actually on property owned by plaintiff, Wayne Hairford.

At this point, the defendant testified that he attempted to call his attorney but was unable to reach him; as a result, he decided to visit a local judge for advice. He informed the judge that his fence was 11½ feet over on the Hairford property and asked what action should be taken. He testified that the judge advised him to return *1056 to his property and remove the fence. Based on this advice, the defendant returned to his property with several deputies and proceeded to cut and remove the barbed wire.

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Bluebook (online)
520 So. 2d 1053, 1987 WL 2445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hairford-v-perkins-lactapp-1987.