94-547 La.App. 5 Cir. 2/15/95, Camp, Dresser & McKee, Inc. v. Steimle and Associates, Inc.

• Decision Date: 15 February 1995
• Citation: 652 So.2d 44
• Parties: 94-547 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 44

652 So.2d 44

94-547 La.App. 5 Cir. 2/15/95

CAMP, DRESSER & McKEE, INC. and Richard Cloutier v. STEIMLE AND ASSOCIATES, INC., Stephen E. Steimle, Sunbelt

Detective Agency, Inc., and William Douglas Emmer.

No. 94-CA-547.

Court of Appeal of Louisiana,

Fifth Circuit.

Feb. 15, 1995.

Robert A. Kutcher, Nicole S. Tygier, Bronfin & Heller, New Orleans, for appellants Steimle and Associates, Inc. and Stephen E. Steimle.

Bienvenu, Foster, Ryan & O'Bannon, Leonard Young, New Orleans, for appellants William Douglas Emmer and Sunbelt Detective Agency, Inc.

George Frazier, L. Eades Hogu, Carolyn S. Parmenter, Kenneth A. Mayeaux, Lemle & Kelleher, New Orleans, for plaintiffs, appellees Camp, Dresser & McKee, Inc. and Richard Cloutier.

Before KLIEBERT, C.J., and GAUDIN and CANNELLA, JJ.

[94-547 La.App. 5 Cir. 2] CANNELLA, Judge.

Defendants, Steimle and Associates, Inc. and Stephen Steimle (hereinafter collectively "Steimle"), W.D. Emmer and Sunbelt Detective Agency, Inc. (hereinafter collectively "Sunbelt") appeal from a judgment that grants a preliminary injunction to plaintiffs, Camp, Dresser and McKee, Inc. and Richard Cloutier (hereinafter collectively "CDM"). The judgment enjoined defendants from entering trash dumpsters located at the offices of Camp, Dresser and McKee, Inc., removing trash from the dumpsters and disclosing or disseminating the information in any of the documents previously removed from the dumpster, except within the parameters of discovery and trial preparation for the pending lawsuit. We affirm.

Camp, Dresser and McKee, Inc. and Steimle and Associates, Inc., are engineering firms. In September 1991, CDM filed a petition for damages against Steimle and Sunbelt alleging that Steimle and Associates, Inc. subcontracted with [94-547 La.App. 5 Cir. 3] Camp, Dresser and McKee, Inc. to perform certain engineering work in 1980, and that for ten years, they performed this work. It also alleged that Steimle and Associates, Inc. was a competitor in connection with other engineering contracts and that in 1989, it began a systematic and intentional plan to destroy the business of Camp, Dresser and McKee, Inc., after it lost a contract to them. Among other acts, CDM asserts that Steimle hired Sunbelt to rummage through CDM's trash dumpsters and remove documents that were later given to the local newspapers for publication, the purpose of which was to gain a competitive edge by discrediting CDM. An amended petition alleged more detailed statements of wrongdoing. Documents retrieved from the dumpster included client lists, internal memos addressing problems of the company, memoranda on financial matters, discussion of client contacts, strategy plans, private material such as handwritten love notes, sensitive data relating to the computer system and a document so sensitive that Richard Cloutier prepared it at home.

Relief sought included actions for abuse of rights, intentional interference with business interests, invasion of privacy and infliction of mental distress. CDM further asserted violations of the Louisiana Unfair Trade Practices and Consumer Protection Law (herein referred to as the unfair trade practices act), La.R.S. 51:1401 et seq., and requested a protective order and preliminary and permanent injunctions to bar Steimle and Sunbelt from entering the trash dumpsters and disseminating the information collected from the trash. Among the allegations was the statement that Emmer was found at the dumpster used by CDM on January 30, 1992, some five months previous to the amended petition filed June 22, 1992.

The initial hearing on the injunction was held in June 1992. Following the hearing, the trial judge granted the preliminary injunction enjoining Steimle and Sunbelt from entering the trash dumpsters and removing CDM's trash. In [94-547 La.App. 5 Cir. 4] addition, Steimle and Sunbelt were enjoined from disseminating documents and material recovered from the CDM trash listed on the CDM's exhibit to the petition. Steimle and Sunbelt appealed the judgment. On October 26, 1993, this court reversed, finding that the trial judge granted the injunction without testimony and the submission of evidence. 628 So.2d 281. Thus, CDM failed to present a prima facie case that they would prevail on the evidence. The case was remanded and on February 24-25, 1994 and March 7, 1994, another hearing was held. The trial judge again granted the preliminary injunction enjoining Steimle and Sunbelt from entering the dumpsters on the property of CDM and from disseminating or disclosing any of the information previously taken from the trash, except within the parameters of discovery for the pending lawsuit. He found that CDM showed irreparable injury and made a prima facie case that they would likely succeed on the unfair trade practices act claim.

On appeal, Steimle and Sunbelt assert that the trial judge erred in granting the injunction because CDM failed to show an immediate threat or continuing conduct or irreparable harm. They also contend that CDM failed to present a prima facie case that they can succeed on the merits for unfair trade practices under the unfair trade practices act, La.R.S. 51:1401 et seq., because the action is preempted under R.S. 51:1409(E)

"A preliminary injunction shall issue in all cases where irreparable injury, loss or damage may otherwise result to the applicant, or in other cases specifically provided by law; ..." La.C.C.P. art. 3601. The preliminary injunction is an interlocutory procedural device designed to preserve the status quo pending a trial of the issues on the merits of the case; and the trial judge has great discretion in granting or denying relief. Corrosion Specialties v. Dicharry, 93-CA-196 (La.App. 5th Cir. 2/9/94); 631 So.2d 1389, 1391-1392, writ denied, 94-C-0597 (La. 3/25/94), 635 So.2d 242. In order to be entitled to relief, the moving [94-547 La.App. 5 Cir. 5] party must show irreparable injury if the injunction is not granted, that he is entitled to the relief sought and must make a prima facie showing that he will prevail on the merits. Id. at 1391-1392. Irreparable injury, for purposes of the preliminary injunction, means that the applicant cannot be adequately compensated in money damages for the injury or that he will suffer injuries which cannot be measured by pecuniary standards. Corrosion Specialties at 1392; Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 319 (La.1981).

It is not necessary to show irreparable injury, however, when the act complained of is unlawful. Ouachita Parish Police Jury v. American Waste and Pollution Control, 606 So.2d 1341, 1350 (La.App. 2nd Cir.1992), writ denied 609 So.2d 234 (La.1992) [Violation of a contract which incorporated federal and state sanitary landfill law]; La. Asso. Gen. Contractors v. Calcasieu, 572 So.2d 623, 628 (La.App. 3rd Cir.1990), affirmed 586 So.2d 1354 (La.1991) [Violation of Public Bid Law]; Miller v. Knorr, 553 So.2d 1043 (La.App. 4th Cir.1989) [Violation of zoning ordinance]; Hays v. City of Baton Rouge, 421 So.2d 347, 349 (La.App. 1st Cir.1982), writ denied, 423 So.2d 1166 (La.1982) [Violation of state law regarding Group Homes]; Smith v. City of Alexandria, 420 So.2d 1329, 1332 (La.App. 3rd Cir.1982) [Violation of city charter]; Caffery v. Powell, 320 So.2d 223 (La.App. 3rd Cir.1975) [Violation by trespass of roaming cattle]; Whalen v. Brinkman, 258 So.2d 145, 147 (La.App. 1st Cir.1972) [Violation of sale and seizure statue].

IRREPARABLE INJURY AND PRIMA FACIE CASE

The record reflects that Steimle and Sunbelt engaged in the conduct of investigating the trash belonging to CDM in 1989 by going through the trash dumpster located on the premises of CDM's office building. The record further reflects that Steimle and Sunbelt obtained documents from the trash and disseminated portions of the information to the news media. At the hearing for [94-547 La.App. 5 Cir. 6] the preliminary injunction, CDM produced evidence to indicate loss of business, loss of business reputation, economic loss, mental distress, etc. For the most part, these are compensable in money damages. However, the Louisiana criminal trespass law, the Jefferson Parish Code and the unfair trade practices act prohibit the activities that defendants engaged in which are the subject of the suit and the injunction request. As we have already noted, it is not necessary to show irreparable injury when the act complained of is unlawful.

The state trespass law prohibits the intentional entering of any structure or movable without authorization. La.R.S. 14:63. Any person who procures another to commit the crime is a principal. La.R.S. 14:24. The Jefferson Parish Code section 16-2 prohibits "scavenging", defined as "the uncontrolled removal of material from a solid waste storage, transfer, processing or disposal site." In addition, La.R.S. 51:1405 of the unfair trade practice act declares that "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful."

At CDM's request, the trial judge agreed to take judicial notice of the applicable laws. After our review, we find that the waste disposal container in this case meets the criteria under the Jefferson Code. The facts further show that, for purposes of the injunction, Sunbelt and Emmer were likely in violation of the Jefferson Code by removing solid waste from the disposal "site" and that Steimle and Sunbelt probably violated the trespass laws, as well. Thus, CDM did not need to show irreparable injury to enjoin defendants from entering the property and going through the trash belonging to plaintiffs.

The unfair trade practices act prohibits the use of unfair methods of competition or deceptive acts or practices in the conduct of any trade or commerce. The courts decide what constitutes unfair trade practices. Marshall v. Citicorp, 601 So.2d 669 (La.App. 5th Cir.1992). However, in the courts it has...