Denoux v. Grodner

Decision Date03 June 2020
Docket Number2019 CA 0525
CourtCourt of Appeal of Louisiana — District of US


2019 CA 0525


June 3, 2020


On Appeal from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana
No. 157922, Div.

The Honorable Brenda Bedsole Ricks, Judge Presiding

Andre' P. Gauthier
Lee J. Amedee, III
Thomas J. Kliebert, III
Gonzales, LA

Attorneys for Plaintiff/Appellant
Rodney Denoux

Donna Grodner
Baton Rouge, LA

Pro se/Appellee


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In this suit involving a property dispute between neighbors, the plaintiff appeals a summary judgment dismissing his petition and awarding the defendant sanctions under her reconventional demand. For the reasons set forth herein, we reverse and remand.


On December 27, 2017, the plaintiff, Rodney Denoux, filed a "Petition for Possessory Action, Injunctive Relief and Damages" against the defendant, Donna Grodner, the owner of adjacent property. Denoux alleged that in January of 2017, Grodner built a covered parking structure that encroached on his property by 3.7 feet and disturbed his possession.1 Denoux alleged that he requested that Grodner remove the structure, but she refused and "has taken no remedial action to cure the encroachments." He sought the removal of the structure, restoration of his property, damages, and costs.

Grodner answered the petition, admitting that Denoux had a survey performed and that her structure encroached on Denoux's property, but denying that Denoux ever asked her to move it. Additionally, Grodner alleged the following: she saw survey stakes on December 16, 2017, and immediately contacted Denoux and asked for sixty days to verify the survey; Denoux told her to talk to his attorney and that she would be hearing from his attorney, but would not give Grodner his attorney's name; she notified Denoux on December 22, 2017, that the structure would be moved in January and asked him to call her; and she notified Denoux on December 24, 2017, three days before the petition was filed in this matter, that the structure was moved off of his property on that date and was

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three inches from the property line. Grodner filed a reconventional demand for attorney's fees and costs as sanctions under La. C.C.P. art. 863, alleging that Denoux made false representations of fact in his petition which he knew or should have known were false because he had been notified that the encroachment would be immediately remedied and because it had been remedied when suit was filed.2

On March 14, 2018, Grodner filed a motion for summary judgment on Denoux's petition and on her reconventional demand. After a hearing, the trial court granted the motion for summary judgment. The court signed a judgment on May 14, 2018, which dismissed Denoux's petition with prejudice and granted "the counter claim under La. Art. 863" casting Denoux with all costs.

Denoux appealed that ruling, but this court dismissed the initial, earlier appeal because it was not from a valid final judgment in that the judgment did not contain proper decretal language. Denoux v. Grodner, 2018-0910 (La. App. 1 Cir. 12/21/18), 2018 WL 6717010 p.2 (unpublished opinion). Following this court's dismissal of the appeal, the trial court signed a new judgment on February 22, 2019, which provided that the summary judgment motion filed by Grodner was heard and granted in favor of Grodner and against Denoux; that Denoux's petition was dismissed with prejudice; that Grodner's reconventional demand under La. C.C.P. art. 863 was granted; and that Denoux was liable to Grodner for all court costs in the matter. Denoux appeals from this judgment.3 On appeal, Denoux

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contends that the trial court erred in granting Grodner's motion for summary judgment, in dismissing his possessory action with prejudice, by not issuing a judgment maintaining his possession, and in ordering sanctions against him.


A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the district court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3); Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence

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of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966D(1).

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Lafourche Realty Company, Inc. v. Entergy Louisiana, Inc., 2017-0849 (La. App. 1 Cir. 7/10/19), 281 So.3d 680, 684, writ denied, 2019-01269 (La. 11/5/19), 281 So.3d 675.

On appeal, Denoux challenges the trial court's dismissal of his possessory action on Grodner's motion for summary judgment and its grant of her claim for sanctions on the summary judgment motion. A possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed or to be restored to the possession or enjoyment thereof when he has been evicted. La. C.C.P. art. 3655. A disturbance in fact is defined in La. C.C.P. art. 3659 as "an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment." The elements of proof in a possessory action are set forth in La. C.C.P. art. 3658 as follows:

To maintain the possessory action the possessor must allege and prove that:

(1) He had possession of the immovable property or real right therein at the time the disturbance occurred;

(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;

(3) The disturbance was one in fact or in law, as defined in Article 3659; and

(4) The possessory action was instituted within a year of the disturbance.

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In a possessory action, the burden of proof is upon the plaintiff to establish the essential elements thereof. La. C.C.P. art. 3658.

Louisiana Code of Civil Procedure article 3662 provides that a judgment rendered for a plaintiff in a possessory action shall:

(1) Recognize his right to the possession of the immovable property or real right therein, and restore him to possession thereof if he has been evicted, or maintain him in possession thereof if the disturbance has not been an eviction;

(2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right therein in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory, or be precluded thereafter from asserting the ownership thereof, if the plaintiff has prayed for such relief; and

(3) Award him the damages to which he is entitled and which he has prayed for.

A plaintiff who prevails in a...

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