Sandra L. Sawyer v. Leroy J. Kilchrist

• Court: Louisiana Court of Appeal
• Decided: November 5, 2008
• Docket: CA-0008-0575
• Status: Unknown

Opinion

DO NOT PUBLISH

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-575

SANDRA L. SAWYER

VERSUS

LEROY J. KILCHRIST

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APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 111470-E HONORABLE KEITH R. COMEAUX, DISTRICT JUDGE

J. DAVID PAINTER JUDGE

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.

AFFIRMED.

Sandra L. Sawyer 2517 Sidney LeBlanc Road New Iberia, LA 70560 IN PROPER PERSON

Lucretia Pecantte-Burton P.O. Box 13738 New Iberia, LA 70563 Counsel for Defendant-Appellant: Leroy J. Kilchrist PAINTER, Judge.

Plaintiff, Sandra L. Sawyer, was granted a permanent injunction against

Defendant, Leroy J. Kilchrist, enjoining him from abusing, harassing, stalking,

following, or threatening her, from contacting her, from going within one hundred

yards of her residence, and ordering him to stay away from her place of employment.

Defendant appeals, asserting that Plaintiff failed to meet the requisite burden of proof.

Finding no manifest error in the trial court’s grant of the permanent injunction, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, in proper person, filed a petition for temporary restraining order,

preliminary and permanent injunction against her neighbor, Defendant, Kilchrist. In

that petition, Plaintiff alleged that Defendant stalked her and threatened her with a

weapon. She further alleged that the most recent incident involving Defendant

occurred on January 13, 2008, and involved Defendant standing in front of her car

and not allowing her to drive to her residence. A temporary restraining order was

issued on February 14, 2008. Defendant filed an answer denying Plaintiff’s

allegations. A second temporary restraining order was issued on February 27, 2008,

after Defendant was granted a continuance on the rule to show cause why the

temporary restraining order should not be made a preliminary injunction. Following

a hearing on March 13, 2008, a permanent injunction issued against Defendant.

Defendant appeals the issuance of that injunction and alleges that the testimony and

evidence presented did not support the issuance of a permanent injunction. For the

following reasons, we find Defendant’s argument to be without merit and affirm the

issuance of the injunction.

1 DISCUSSION

Louisiana Code of Civil Procedure Article 3601 provides, in pertinent part:

“[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may

otherwise result to the applicant, or in other cases specifically provided by law,” In

Ghannam v. City of Alexandria, 07-23, p. 4 (La.App. 3 Cir. 5/9/07), 957 So.2d 356,

359-360, this court discussed the burden of proof applicable to the issuance of a

permanent injunction as follows:

The manifest error standard applies to the appellate review of the issuance of a permanent injunction. Mary Moe, LLC v. La. Bd. of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22; Metro Ambulance Serv., Inc. v. Med Life Emergency Med. Servs., Inc., 39,440 (La.App. 2 Cir. 3/17/05), 900 So.2d 184. Therefore, the factual determination of the trial court may not be set aside by a reviewing court absent a finding that the determination was manifestly erroneous or clearly wrong. Stobart v. State Through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). A permanent injunction is issued only after a full trial on the merits in which the burden of proof is a preponderance of the evidence. Mary Moe, LLC, 875 So.2d 22. “The primary purpose of injunctive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant. La. C.C.P. art. 3601.” Metro. Ambulance Serv. Inc., 900 So.2d at 188.

In the instant case, Plaintiff bears the burden of proving, by a preponderance

of the evidence, that she is entitled to the injunction which she seeks. Based on our

review of the record, we find that Plaintiff met her burden of proof. Sawyer, Andrea

Kilchrist (Defendant’s sister and Plaintiff’s landlord), and Defendant testified at the

trial of this matter. Plaintiff testified to several incidents of Defendant stopping her

car and photographing her without her consent. She testified that she isn’t sure if

Defendant would physically harm her but that his actions were interfering with her

lease of the property and that she just wanted to be left alone. Andrea testified that

Plaintiff had often expressed her fear of Defendant but that she had not personally

seen Defendant block Plaintiff’s way on the road. The court considered all of the

2 evidence and chose to believe Plaintiff’s testimony that she was being harassed by

Defendant. We find no manifest error in the trial court’s factual determinations and,

therefore, affirm the issuance of the permanent injunction in this case.

DECREE

For the reasons assigned above, the judgment of the trial court is affirmed. All

costs of this appeal are assessed to Defendant-Appellant, Leroy J. Kilchrist.