Clipper Estates Master Homeowners' Association, Inc. VS John B. Harkins, Jr. and Debrorah Kubricht Harkins, ABC Company(ies) and ABC Insurance Company

Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0429 CLIPPER ESTATES MASTER HOMEOWNERS ASSOCIATION INC VERSUS JOHN B I IARKINS JR AND DEBORAH KUBRICHT HARKINS ABC COMPANY AND ABC INSURANCE COMPANY IES 7udgment Rendered NOV 0 4 2013 On Appeal from the 22nd 7udiciai District Court In and for the Parish of St Tammany State of Louisiana 2 5 Trial CourtNo 2007 10186 The Honorable Reginald T Badeaux III Judge Presiding Judith Otero Attorney for Plaintiff Appellant Counsel Appeal Mandeville Louisiana Allen H Ryan New Borne Jr Clipper Estates Master Homeowners Association Attorneys for Defendants Appellees 7ohn B Harkins Jr and P Reece Orleans Louisiana Deborah Kubricht Harkins Lloyd T Bourgeois Thibodaux Louisiana John E McAuliffe Jr Metairie Louisiana BEFORE Attorney for Defendant Appellee State Farm Fire and Casualty Company PARRO GUIDRY AND DRAKE JJ DRAKE J This appeal arises from the dissolution of a temporary restraining order TRO sought by plaintiff Clipper Estates Master Homeowners Association Inc CEMHOA against defendants John B Harkins Jr and Debra Kubricht Harkins to restrain any construction installation activity or landscaping on their lot due to a failed bulkhead adjacent to the defendants lot The TRO was dissolved at the hearing on the preliminary injunction the preliminary injunction was denied and costs and damages were to be rendered at a later date upon defendants motion The trial court awarded damages and attorney fees in a judgment signed on s September 19 2012 following the defendants filing of a Motion to Tax Costs and Award Damages It is from this judgment that CEMHOA appeals FACTS AND PROCEDURAL HISTORY On 7anuary 12 2007 CEMHOA filed a petition against the defendants seeking an injunction to prevent any further damage to the bulkhead adjacent to the defendants property as well as damages The defendants property is located in the Clipper Estates Subdivision St Tammany Parish Louisiana and is subject to the Declaration of Covenants Conditions and Restrictions Declaration and Supplementary Declaration of Covenants Conditions and Restrictions Supplementary Declaration collectively referred to as Restrictive Covenants The property owned by the defendants abuts a waterway passage used by the residents of Clipper Estates Subdivision to get to Lake Pontchartrain CEMHOA owns the waterway passage A bulkhead separates the waterway passage from the property of the defendants CEMHOA first contended in 2007 that the defendants had damaged the bulkhead causing it to fail by their construction and activity on their property in violation of the Restrictive Covenants CEMHOA filed First and Second Supplemental and Amending Petitions adding facts and details as to their claim for an injunction and damages On June 22 2012 CEMHOA filed a Third 2 Supplemental and Amending Petition asserting that a pool installation company had contacted it regarding the defendants property and that exterior landscape and maintenance work was being performed on the lot which violated the Restrictive Covenants CEMHOA also sought a temporary restraining order against the defendants preventing any construction or installation activity The trial court issued the TRO on June 29 2012 and set a hearing date on the preliminary injunction for July 16 2012 The defendants filed a Motion to Vacate Ex Parte Order and Strike Third Supplemental and Amending Petition To Dissolve Temporary Restraining Order and For Damages on July 9 2012 The trial court set the hearing on the defendants motion on the same date as the preliminary injunction hearing Following the hearing the trial court granted the defendants motion for directed verdict on CEMHOA spreliminary injunction dissolved the temporary restraining order denied the preliminary injunction and deferred the defendants request for damages until a motion to tax costs was filed with the judgment being signed accordingly on July 30 2012 The defendants subsequently filed a Motion to Tax Costs and Award Damages which was heard on September 11 2012 After a hearing on costs and damages requested by the defendants the trial court signed a judgment on September 19 2012 awarding the defendants costs attorney fees in the amount of 7 and 700 each in general 600 damages The trial court designated the September 19 2012 judgment as final and appealable in accordance with Louisiana Civil Code of Procedure article A 1915 CEMHOA appeals the awarding of damages and attorney fees to the s Pursuant to La C art 3612 an appeal does not lie from a trial court judgment P dissolving a TRO See Kinchen v Kinchen 256 La 28 235 So 2d 81 83 1970 However a money judgment for the wrongful issuance of a TRO even when coupled with an interlocutory order in a preliminary injunction is a final judgment Kinchen 256 La at 35 235 So 2d at 84 see also Carson v Thomas 342 So 2d 1219 1221 La App 2d Cir 1977 The appeal in the present matter from the money judgment for the wrongful issuance of a TRO is a final appealable judgment 3 i defendants The defendants answered the appeal and seek additional attorney s fees in connection with the appeal ASSIGNMENT OF ERRORS CEMHOA aasserts that the trial court erred in awarding attorney fees s since the preliminary injunction hearing and the motion to dissolve the TRO were held at the same time or because the TRO had expired by its own terms CEMHOA also claims the trial court erred in awarding damages to the defendants Finally CEMHOA claims that the defendants Answer to Appeal seeking additional attorney fees should be denied s S ATTORNEY FEES CEMHOA claims that since the trial court set the preliminary injunction hearing at the same time as the motion to dissolve the TRO the defendants are not entitled to attorney fees The defendants rely upon La C art 3608 which s P states t court may allow damages for the wrongful issuance of a temparary he restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand s Attorney fees may be included as an element of damages CEMHOA asserts that La C art 3607 requires a hearing on the P TRO separate from the hearing on the preliminary injunction Louisiana Code of Civil Procedure article 3607 states An interested person may move for the dissolution or modification of a temporary restraining order or preliminary injunction upon two days notice to the adverse party or such shorter notice as the court may prescribe The court shall proceed to hear and determine the motion as expeditiously as the ends ofjustice may require The court on its own motion and upon notice to all parties and after hearing may dissolve or modify a temporary restraining order or preliminary injunction 4 CEMHOA argues that the defendants were not entitled to attorney fees s since the defendants attendance at the hearing was to defend the preliminary injunction as much as it was to dissolve the TRO The issue before this court is whether attorney fees were permitted to be s awarded when the TRO expired prior to the hearing on the issuance of a preliminary injunction The TRO was signed on June 29 2012 A TRO shall expire by its terms within such time after entry not to exceed ten days as the court prescribes La C art 3604 The defendants filed the motion to dissolve P A the TRO on 7uly 9 2012 which is the day the TRO expired A rule to show cause regarding the issuance of a preliminary injunction was heard on July 16 2012 There is nothing in the record indicating that the TRO was extended Defendants claim they agreed to the extension but the only agreement in the record took place at the July 16 2012 hearing to include all matters the dissolution of the TRO and the issuance of a preliminary injunction at the hearing Where the temporary restraining order has expired by operation of law ten days after issuance before a hearing is had to determine if it should be dissolved the issue is moot and attorney fees have generally been denied Gaudet v Reaux 450 So 2d 1009 1011 La App 1 Cir 1984 See also Lighthouse Life Ins Co Inc v Rich 343 So 2d 444 446 La App 3d Cir 1977 attorney fees not awarded when preliminary injunction hearing continued until after the TRO expired ten days after its issuance Davis v Raymond Petroleum Inc 396 So 2d 600 601 La App 3d Cir 1981 damages but not attorney fees may be awarded when preliminary injunction hearing continued until after the TRO expired ten days after its issuance and TRO was not extended 2 The TRO issued by the trial court did include language that it was in place until further order of this Court However a TRO can only be for ten days with extensions by the court for good cause shown for periods of up to ten days La C art 3604 P 5 The First Circuit again addressed this issue in Morris v Sonnier 546 So 2d 1296 La App 1 Cir 1989 Relying upon Khaled v Khaled 424 Sa 2d 370 La App 2d Cir 1982 this court noted that when a dissolution hearing for a TRO and a preliminary injunction hearing are at the same time the same preparation for both is required Therefore the defendants could not prove damages of attorney s fees required to dissolve the TRO Id The language in La C art 3608 P provides for attorney fees for the services rendered in connection with the s dissolution of a restraining order of premlinary injunction This language refers to the date of the hearing See United Gas Pipe Line Co v Caldwell 590 So 2d 724 726 La App 3d Cir 1991 Therefore if the hearing for dissolution is 27 not held before the TRO expires attorney fees cannot be awarded Id See also s Lewis v Adams 28 La App 2d Cir 8679 So 2d 493 496 496 96 21 Defendants rely upon Cook v Ed Francis Chevrolet Inc 365 So 2d 1178 La App 3d Cir 1978 which permitted attorney fees for the wrongful issuance s of a TRO when the dissolution of the TRO and the preliminary injunction hearing took place at the same time Cook is distinguishable from the present case because the hearing on the preliminary injunction was held on the tenth day after the issuance of the TRO Therefore the TRO had not yet expired Since the TRO in the present case expired prior to the hearing on the dissolution or preliminary injunction attorney fees are not recoverable s Therefore the attomey fees award of the trial court is reversed s DAMAGES CEMHOA also asserts that the damages awarded to the defendants should be reversed After hearing testimony the trial court awarded each defendant 700 in damages for the wrongfu issuance of the TRO The ruling of a trial court on the issue of damages under La C art 3608 should not be disturbed on appeal P absent a clear abuse of discretion Arco Oil 6 Gas Co a Division of Atlantic Richfield Co v DeShazer 98 La 1 728 So 2d 841 844 Louisiana 1487 99 20 Code of Civil Procedure article 3608 provides that the trial court may allow damages far the wrongful issuance of a TRO or preliminary injunction The trial court has great discretion in awarding damages pursuant to La C art 3608 P and such award will not be disturbed on appeal absent an abuse of discretion United Gas 590 So 2d at 726 After reviewing the record we find that the trial court was reasonable and that there was no abuse of discretion in awarding each defendant 700 for the wrongful issuance of the TRO ANSWER TO APPEAL Defendants have answered this appeal and seek additional attorney fees s for defending the appeal of the wrongful damages awarded Because this court finds defendants are not entitled to attorney fees for the dissolution of the TRO s defendants are not entitled to attorney fees for the appeal of the damage award s resulting from the wrongful issuance of the TRO CONCLUSION For the foregoing reasons the judgment of the trial court is reversed in part and affirmed in part Costs of the appeal are assessed equally to both parties REVERSED IN PART AFFIRMED IN APPEAL DENIED 7 PART ANSWER TO

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.