Hernandez v. Richard

772 So. 2d 994, 2000 WL 1804531
CourtLouisiana Court of Appeal
DecidedDecember 6, 2000
Docket00471-CA
StatusPublished
Cited by6 cases

This text of 772 So. 2d 994 (Hernandez v. Richard) 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
Hernandez v. Richard, 772 So. 2d 994, 2000 WL 1804531 (La. Ct. App. 2000).

Opinion

772 So.2d 994 (2000)

John A. HERNANDEZ, Jr., et al.
v.
James Wayne RICHARD.

No. 00471-CA.

Court of Appeal of Louisiana, Third Circuit.

December 6, 2000.

Susan Carol Severance, Gachassin Law Firm, Lafayette, LA, Counsel for Plaintiff/Appellant: John A. Hernandez, Jr., Patricia Ducote Hernandez.

Jarvis Jerome Claiborne, Attorney at Law, Opelousas, LA, Counsel for Defendant/Appellee: James Wayne Richard.

*995 John Ashby Hernandez, Jr., Attorney at Law, Carencro, LA, Counsel for Defendant/Appellee: John A. Hernandez, Jr., Patricia Ducote Hernandez.

James Wayne Richard, in Proper Person, Grand Coteau, LA, Defendant/Appellee.

Court composed of Honorable BILLIE COLOMBARO WOODARD, Honorable MICHAEL G. SULLIVAN, and Honorable GLENN B. GREMILLION.

WOODARD, Judge.

This is the case of the barking Beagles of Grand Coteau. Mr. John A. Hernandez filed suit to stop Mr. Wayne Richard's Beagles from barking. The two are neighbors, and Mr. Richard keeps a group of Beagles outside, on his property. The trial court denied a temporary injunction, which Mr. Hernandez filed during the proceedings. The legal issue is whether the barking produces frequent or long continued noise, which disturbs the comfort or repose of any person in the vicinity, causing real damages instead of a mere inconvenience. Finding that Mr. Hernandez introduced more than ample evidence to justify the issuance of a temporary injunction, we reverse.

* * * * * *

Mr. Hernandez purchased a home located within the municipal limits of the Town of Grand Coteau, St. Landry Parish, Louisiana, on December 19, 1997. Unbeknownst to him, located approximately 250 feet away from his new home, Mr. Richard, a Grand Coteau resident of twenty years, maintained on his property, an average of at least ten to twelve Beagles, in an outdoor pen. Mr. Richard used the Beagles mainly for hunting, but he also sold some, which he had trained, for $200.00 each.

Mr. Hernandez soon complained of the noise emanating from Mr. Richard's property. First, he attempted to discuss the matter with Mr. Richard. However, the dialogue reached a dead-end, and he resorted to calling the local law enforcement for help. In fact, the Grand Coteau police department's logs reflect countless telephone calls which Mr. Hernandez made, complaining of Mr. Richard's dogs. Finding the local police un-cooperative in his request to have Mr. Richard abate the barking, Mr. Hernandez filed the instant suit, alleging that Mr. Richard violated Article 79 of the Town of Grand Coteau's municipal ordinance, and requested that the trial court issue a permanent injunction and award him damages. He also filed a motion for a preliminary injunction on October 8, 1999. The hearing on the motion for preliminary injunction was originally fixed for the morning of November 5, 1999, but per the parties' agreement, it was refixed for November 10, 1999. Later that morning, having yet to receive a formal answer, Mr. Hernandez presented the trial court with a preliminary default judgment, which the court entered in its minutes. The hearing on the preliminary injunction started on November 10, 1999, but due to the large number of witnesses, after presentation of Mr. Hernandez's case in chief, the trial court continued the trial, setting a reconvening date for November 30, 1999. After it adjourned the preliminary injunction hearing's first day and Mr. Richard had left the courtroom, Mr. Hernandez filed a motion to confirm the default judgment, which the trial court took under advisement and denied on November 16, 1999. Mr. Richard filed an answer regarding the damage claim as well as the preliminary and permanent injunctions on November 29, 1999.

The trial court reconvened for the second day of the preliminary injunction hearing on December 9, 1999, following which it denied Mr. Hernandez's preliminary injunction, holding that he failed to show that Mr. Richard had violated the town ordinance. Mr. Hernandez appeals.

DEFAULT JUDGMENT

Mr. Hernandez claims that the trial court erred when it denied his motion to confirm his preliminary default judgment.

*996 Specifying the time frame within which an answer may be filed, La.Code Civ.P. art. 1001 states that "[a] defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law." Applying to default judgments, La. Code Civ.P. art. 1701(A) states that "[i]f a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him." Further, La.Code Civ.P. art. 1702 specifies in relevant part, that:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
. . . .
B. (2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering the judgment.

In the case sub judice, the trial court denied Mr. Hernandez's motion to confirm the default judgment and allowed the preliminary injunction to proceed on its merits in a judgment signed on November 16, 1999. Mr. Hernandez did not apply for supervisory writs and, thus, never obtained the default judgment's confirmation. Mr. Richard filed an answer on November 29, 1999. It is a well-settled principle that any procedural action, resulting in depriving another party of the right to defend oneself in court, should be strictly construed. In Martin v. Martin,[1] the first circuit went so far as holding that filing an answer after a default judgment has been orally confirmed, but prior to its signing, nullifies the judgment. In this instant case, Mr. Richard answered the petition, and the default judgment confirmation never occurred. Accordingly, we affirm the trial court's decision on this point.

NOISE ORDINANCE VIOLATION

Mr. Hernandez asserts that the trial court erred when it denied his preliminary injunction; specifically, when it found that he did not show that Mr. Richard's dogs barked frequently enough to constitute a violation of Article 79 of the Grand Coteau ordinance.

To show entitlement to a preliminary injunction, a person must show the existence of a resulting irreparable injury, loss, or damage.[2] In the instant case, Mr. Hernandez urges that the noise, which these Beagles generated, caused deafening, aggravating, annoying, and irritating racket which interfered with his reasonable use and enjoyment of his property. He states that it deprived him, his wife, and his daughter of their sleep, which affected their ability to function in their daily professional activities.

Relevant to this issue, La.Civ.Code art. 667 provides, in part, that:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.

Further, La.Civ.Code art.

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Bluebook (online)
772 So. 2d 994, 2000 WL 1804531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-richard-lactapp-2000.