Zeringue v. St. James Parish School Board

130 So. 3d 356, 13 La.App. 5 Cir. 444, 2013 WL 6073358, 2013 La. App. LEXIS 2355
CourtLouisiana Court of Appeal
DecidedNovember 19, 2013
DocketNo. 13-CA-444
StatusPublished
Cited by13 cases

This text of 130 So. 3d 356 (Zeringue v. St. James Parish School Board) 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
Zeringue v. St. James Parish School Board, 130 So. 3d 356, 13 La.App. 5 Cir. 444, 2013 WL 6073358, 2013 La. App. LEXIS 2355 (La. Ct. App. 2013).

Opinion

ROBERT M. MURPHY, Judge.

1 ¡¿Plaintiff-appellant, Roy F. Zeringue, appeals the trial court’s February 17, 2013 judgment, which denied his request for a temporary restraining order and granted in part and denied in part his request for a permanent injunction against defendant-appellee, St. James Parish School Board (“the Board”). For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On June 5, 2012, Zeringue, filed a petition seeking a temporary restraining order and a permanent injunction against the Board. In his petition, Zeringue sought to enjoin the Board from allowing its school buses to use a specific gate located at Lutcher High School, as an exit from the school. The gate at issue (hereinafter referred to as “the Gate”) is located at the intersection of Buddy Whitney Street and Bulldog Boulevard, which is situated directly across the street from the backyard portion of Zeringue’s property. Zeringue alleges that the Gate had not been used by the Board since 1992. However, after the Board began new construction at Lutcher High School in 2012, it re-opened the Gate. As a result, |3the Board began allowing its school buses to exit the high school through the Gate and travel down the street located behind Zeringue’s house, Buddy Whitney Street.

Zeringue contends that he has experienced a number of problems resulting from the Board’s re-opening of the Gate. Specifically, Zeringue contends the following: (1) the school buses and other school traffic drive the wrong way down- Buddy Whitney Street, which is a one-way street; (2) the school buses and school traffic have caused damage to his property by driving onto the edge of his property; (3) the vibrations from the school traffic have caused structural damage to his property; and (4) the school traffic and noisy students create an ongoing noise disturbance for Zeringue. Zeringue further alleges that the Board is prohibited from opening the Gate by Article V of the Lutcher Zoning Ordinance No. 02-2, and that the Board failed to obtain a permit to re-open the Gate.

On August 15, 2012, the Board filed an opposition and an exception of no cause of action to Zeringue’s petition for a temporary restraining order and a permanent injunction. The Board admits that it commenced new construction at Lutcher High School. However, it contends that the Gate is located at the intersection of two public roads, Buddy Whitney Street and Bulldog Boulevard, that have been in existence for many years prior to the new construction. As such, the Board argues that it is not required, and that Zeringue has not shown that it is required to obtain a permit in order to open the Gate located at the intersection. In addition, the Board contends that the zoning ordinance cited by Zeringue, Article V of the Lutcher Zoning Ordinance No. 02-2, is not applicable to this case. .Specifically, the Board claims that Ordinance No. 02-2 relates only to permitted uses, minimum lot requirements, and maximum structure heights of residential, commercial, and industrial property.

|4Zeringue’s temporary restraining order and permanent injunction and the Board’s exception of no cause of action were set for hearing on October 15, 2012. At the hearing, Zeringue called five witnesses to testify, including (1) himself; (2) three of his neighbors; and (3) Jody Chenier, Director of Operations for the St. James Parish Government. Zeringue’s neighbors testified regarding their experiences since the Board re-opened the Gate. The testimony [358]*358consisted of noise complaints, speeding traffic, cracked sidewalk and tire ruts in the homeowners’ yards. At least some of the neighbors’ complaints were related to the new construction at Lutcher High School, as opposed to the re-opening of the Gate.

Zeringue testified that he owned his home for at least two years before the Board closed the Gate in 1992. Since the Board’s recent re-opening of the Gate, Ze-ringue testified that his fence has been hit seven times. He further stated that he had to re-fill the portion of his property between his fence and Buddy Whitney Street, due to the school buses driving onto his property. Zeringue also complained that the noise from garbage trucks pulling up to the Gate begins at 4:30 a.m., and that the noise from the school buses begins at 5:00 a.m. Additionally, he complained of cracks in tiles of his home and in his driveway and sidewalks, all of which, he contends was caused by the school bus traffic. He testified that he has cancelled family functions at his home due to the noise and traffic travelling from the Gate.

Jody Chenier, as Director of Operations for the St. James Parish Government, testified that the parish did not issue a permit to the Board allowing it to re-open the Gate because the Board was not required to obtain a parish permit to use an exit at two existing roads. Chenier explained that the two roads at issue, Bulldog Boulevard and Buddy Whitney Street, are not parish roads. Because they Rare town roads, Chenier testified that they are under the jurisdiction of the town of Lutcher.

At the conclusion of the hearing, the trial court denied the Board’s exception of no cause of action. Because the trial court concluded that Zeringue had an adequate remedy at law and that any damage complained of could be compensated with monetary damages, it denied Zeringue’s request for a temporary restraining order and a permanent injunction, but granted the injunction to enjoin the Board from using Zeringue’s private property. The trial court’s judgment was signed on February 17, 2018. This appeal follows.

ASSIGNMENTS OF ERROR

On appeal, Zeringue contends that the trial court erred in denying his request for a temporary restraining order and in partially denying his request for a permanent injunction because (1) a showing of irreparable injury is not required when the deprivation of a constitutional right is involved; and (2) the trial court has broad discretion in granting or denying injunctions.

LAW AND DISCUSSION

As an initial matter, we note that Zeringue appeals the trial court’s denial of his request for a temporary restraining order, in addition to its denial of his request for permanent injunction. However, La. C.C.P. art. 3612 provides that “[tjhere shall be no appeal from an order relating to a temporary restraining order.” Therefore, the trial court’s denial of the temporary restraining order is not properly before this Court on appeal. We will now address the trial court’s partial denial of Zeringue’s request for permanent injunction.

In his first argument, Zeringue contends that the trial court erred in denying his request for permanent injunction because he was not required to make a showing of irreparable harm under these facts.

|fiThe issuance of a permanent injunction -takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22, 29. [359]*359The appellate court reviews the granting or denial of a preliminary injunction under the manifest error standard. Id. The standard is the same for a permanent injunction. Id.

Under La. C.C.P. art.

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130 So. 3d 356, 13 La.App. 5 Cir. 444, 2013 WL 6073358, 2013 La. App. LEXIS 2355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeringue-v-st-james-parish-school-board-lactapp-2013.