Hirstius v. Cleco Corp.
| Decision Date | 22 December 2016 |
| Docket Number | 2016 CA 0613 |
| Parties | BRANDON WADE HIRSTIUS v. CLECO CORPORATION, BELLSOUTH TELECOMMUNICATIONS, L.L.C., CHARTER COMMUNICATIONS, L.L.C. |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 2013-12105, DIVISION J, PARISH OF ST. TAMMANY
STATE OF LOUISIANA
Disposition: APPEAL MAINTAINED; AMENDED JUDGMENT AFFIRMED.
In this action for trespass, plaintiff, Brandon W. Hirstius, appeals a trial court judgment dismissing his claims against defendant, Bellsouth Telecommunications, L.L.C. d/b/a AT&T Louisiana (AT&T). We affirm.
Mr. Hirstius owns a tract of immovable property located in St. Tammany Parish. The northern boundary of the property is bordered by a right-of-way owned by the State of Louisiana that runs along U.S. Hwy. 190.
On May 6, 2011, Mr. Hirstius filed his original suit against AT&T complaining of the unauthorized presence of a utility pole, aerial lines, and other equipment on his property. Following a bench trial, the trial court concluded the placement by AT&T of a pedestal and aerial cables on Mr. Hirstius' property outside of the state right-of-way constituted a trespass for which AT&T was liable in damages. That judgment was affirmed on appeal. See Hirstius v. BellSouth Telecommunications, Inc., 12-2104 (La. App. 1st Cir. 8/14/13), 123 So.3d 276, 278, writ denied, 13-2709 (La. 2/7/14), 131 So.3d 868.
Before the decision in the original suit was final, Mr. Hirstius filed the present suit on May 6, 2013, against AT&T, Cleco Power L.L.C., and Renaissance Media, L.L.C.1 (Renaissance), asserting numerous causes of action for trespass concerning the utility pole and equipment, and seeking declaratory relief quieting title and declaring him to be the owner of the utility pole. On August 15, 2013, Mr. Hirstius filed a supplemental and amending petition in which he raised two new, separate claims of alleged trespass upon his property by AT&T. (prior appeal, R 144) In response, AT&T filed a peremptory exception raising the objection of res judicata and a dilatory exception raising the objection of improper cumulation of actions. By judgment datedNovember 6, 2013, the trial court sustained the exception of res judicata and dismissed all of Mr. Hirstius' claims against AT&T with the exception of the "two separate and discrete alleged acts of trespass" raised in Mr. Hirstius' amending petition. The trial court also sustained the exception of improper cumulation of actions and ordered a separate trial on Mr. Hirstius' two remaining claims of trespass against AT&T.2
The first alleged trespass occurred on August 28, 2012, as Hurricane Isaac approached landfall in Louisiana. On that date, AT&T personnel cut down a banner belonging to Mr. Hirstius that was hanging from an AT&T fiber optic cable located along U.S. Hwy. 190. The second trespass claim arose from an incident on August 30, 2012, when a tree service company contracted by AT&T trimmed and/or topped several trees in order to retrieve and repair a fiber optic cable downed by Hurricane Isaac.
Following a bench trial, the trial court signed a judgment on December 17, 2015, that stated the court was granting AT&T's oral motion to dismiss Mr. Hirstius' trespass claims. The judgment also dismissed a reconventional demand filed by AT&T seeking recovery for expenses and damages it allegedly incurred as a result of Mr. Hirstius attaching his banner to AT&T's fiber optic cable. In its written reasons for judgment, the trial court concluded Mr. Hirstius failed to carry his burden of proving the alleged trespasses and any resulting damages. Mr. Hirstius has now appealed the trial court's judgment.
This court ex proprio motu issued a rule to show cause why this appeal should or should not be dismissed. The apparent defects noted in the show cause order were: (1) the December 17, 2015 judgment appeared to lack decretal language dismissing ordisposing of Mr. Hirstius' trespass claims; and (2) the judgment appeared to be a partial final judgment lacking the designation of finality required by La. C.C.P. art. 1915(B)(1). This matter was remanded to the trial court for the limited purpose of allowing that court, if it chose to do so, to sign an amended judgment addressing these apparent defects.
On remand, the trial court signed an amended judgment on May 25, 2016, ordering that Mr. Hirstius' trespass claims against AT&T be dismissed with prejudice. Thus, the amended judgment corrected the defect of insufficient decretal language. The amended judgment also included a designation that the judgment was a final appealable judgment with no cause for delay under Article 1915(B).
On the same date, the trial court issued a per curiam setting forth its reasons for designating the judgment as final under Article 1915(B). The trial court noted this suit originally involved multiple claims against three defendants, including AT&T. However, as previously noted, the trial court sustained AT&T's exception of improper cumulation of actions and ordered a separate trial on Mr. Hirstius' remaining trespass claims against AT&T. Moreover, pursuant to AT&T's peremptory exception of res judicata, the trial court also dismissed all of Mr. Hirstius' claims against AT&T with the exception of "two separate and discrete alleged acts of trespass" raised in Mr. Hirstius' amending petition. The amended judgment before us on appeal disposed of these two trespass claims against AT&T, which were the only remaining claims against AT&T in this matter. Because the amended judgment dismissed AT&T entirely from this suit, with prejudice, that judgment is a final judgment immediately appealable under La. C.C.P. art. 1915(A)(1).3 No designation of finality under Article 1915(B)was required. See Motorola. Inc. v. Associated Indemnity Corporation, 02-0716 (La. App. 1st Cir. 4/30/03), 867 So.2d 715, 721. Accordingly, this appeal will be maintained.
In his pro se appellate brief, Mr. Hirstius argues he should have prevailed on his trespass claims against AT&T and complains the trial court erred in granting AT&T's oral motion to dismiss. He contends AT&T had no right to enter his property and cut his trees since it did not have a right-of-way. Mr. Hirstius suggests the trial court did not give due weight to his testimony. He further suggests the trial court may not have even reviewed the entire record, particularly Mr. Hirstius' petition and his testimony, and may have erred in remembering "the facts of the [prior] judgment of trespassing [sic] against AT&T."
Initially, we observe that Mr. Hirstius offers no support for his suggestion that the trial court failed to review and consider the entire record of this matter, including the prior judgment of trespass against AT&T.4 Nor does the record in any way support such a conclusion. In fact, when Mr. Hirstius inquired at trial whether the trial court had "read everything," the trial court responded affirmatively. Moreover, the trial court's written reasons indicate consideration of all evidence presented at trial.
Our review of the record also indicates the trial court did not, in fact, grant an oral motion to dismiss Mr. Hirstius' trespass claims despite the statement in the trial court's original December 17, 2015 judgment that it did so. On remand of this matter, the trial court explained in its per curiam that this statement in the original judgment was a misstatement of its action. Further, the record reflects that while AT&T made an oral motion for directed verdict at the conclusion of Mr. Hirstius' case-in-chief, themotion was not granted. The trial court stated it would reserve judgment on the trespass claims until the conclusion of the case. The trial court explained in its per curiam that the reference to AT&T's oral motion to dismiss actually referred to AT&T's reconventional demand, which AT&T orally moved to dismiss at trial. The trial court's written reasons for judgment make it clear that the dismissal of Mr. Hirstius' trespass claims on the main demand was based on the court's evaluation of all evidence presented at trial, including Mr. Hirstius' testimony.
Mr. Hirstius' remaining arguments concern the trial court's findings that he failed to sustain his burden of proving the two alleged trespasses on his property. Each of these claims will be considered separately.
:
In rejecting the trespass claim based on the August 28, 2012 incident, the trial court concluded Mr. Hirstius failed to demonstrate "a trespass occurred or that he suffered damages as a result of the removal of the banner." The trial court specifically found there was no evidence the fiber optic cable in question was located on Mr. Hirstius' property.
A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Under the manifest error standard, in order to reverse a trial court's determination of fact, an appellate court must review the record in its entirety and conclude (1) a reasonable factual basis does not exist for the finding, and (2) the trial court's finding is clearly wrong or manifestly erroneous. Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993).
With regard to the August 28, 2012 incident, the record reveals that Gary Long, an area manager for AT&T, received a report on that date of a large banner hanging from an AT&T fiber optic cable located at the U.S. Hwy. 190 and La. Hwy. 434 roundabout located in front of Mr. Hirstius' property. Mr. Long was concerned thebanner might be...
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