Perniciaro v. Hamed

• Decision Date: 16 December 2020
• Docket Number: NO. 20-CA-62,20-CA-62
• Citation: 309 So.3d 813
• Parties: Richard and Christine PERNICIARO v. Sufian HAMED, Hassan M. Hassan, Mayar Discount, LLC, Entergy Louisiana, LLC, and St. Charles Parish Government
• Court: Court of Appeal of Louisiana — District of US

309 So.3d 813

Richard and Christine PERNICIARO
v.
Sufian HAMED, Hassan M. Hassan, Mayar Discount, LLC, Entergy Louisiana, LLC, and St. Charles Parish Government

NO. 20-CA-62

Court of Appeal of Louisiana, Fifth Circuit.

December 16, 2020

COUNSEL FOR PLAINTIFF/APPELLEE, RICHARD AND CHRISTINE PERNICIARO William J. Larzelere, III

COUNSEL FOR DEFENDANT/APPELLANT, MAYAR DISCOUNT, LLC Adam S. Lambert

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

WICKER, J.

This litigation arises out of an ongoing dispute between neighbors regarding the direction of parking lot security lights and the location of Habitat for Humanity collection bins. Plaintiffs-Appellees, Richard and Christine Perniciaro, reside in St. Rose, Louisiana adjacent to a major state highway, Jefferson Highway LA-48, also known as River Road. Plaintiff's property shares a border with a pre-existing neighborhood grocery store, River Discount Supermarket ("River Discount"), which is owned and operated by former-Defendants Sufian Hamed and Hassan M. Hassan through Defendant-Appellant company Mayar Discount, L.L.C.

Appellant timely appeals the trial court's October 23, 2019 judgment following a one day bench trial awarding Appellees injunctive relief and damages. Appellees have answered the appeal, assigning as error the allegedly insufficient extent of relief.

For the reasons fully discussed below, the judgment of the trial court is affirmed.

Facts and Procedural History

On May 15, 2018, Richard and Christine Perniciaro ("Appellees") filed a petition for damages and injunctive relief, against Mr. Hamed, Mr. Hassan, Entergy Louisiana, LLC ("Entergy"), St. Charles Parish Government ("SCPG") and Mayar Discount, L.L.C. (hereinafter "Mayar" or "Appellant"). In the petition, Appellees contended that the three LED parking lot security lights located on River Discount's roof, as well as a later added Entergy light, simultaneously present a serious health risk to Mr. Perniciaro and cause them both to suffer severe mental anxiety, anger, and loss of enjoyment of life, and use of their property. Appellees further asserted that Mr. Perniciaro is in remission for eye cancer and had been instructed by his physician, Dr. Larry Caminata, to avoid bright lights as much as possible as they "create a severe health hazard for petitioner, Richard Perniciaro."

In their petition, Appellees then asserted that Appellant has refused to relocate Habitat for Humanity collection bins.¹ Appellees complained that, over the years, the location of the bins slowly drifted onto their property creating a dumpsite for items that do not make it into the bin.

309 So.3d 820

Appellees additionally asserted that Appellant has attached various signage and a lean-to to their backyard fence, without permission and in-spite of objection, causing physical damage to the fence. Appellees concluded with a request that the trial court grant damages for placing Mr. Perniciaro in danger of serious health risk, causing severe mental anxiety, and for the loss of use of property and damage thereof, as well as injunctive relief.

On February 25, 2019, the trial court issued a joint pre-trial Order providing parties with pre-trial instructions and a timeline in which to identify and exchange all exhibits, and witness and expert identities.² On July 26, 2019, Entergy filed a motion for summary judgment. In its motion, Entergy argued that the only light which it owned, that Appellees complained of in their petition for damages, was attached to a utility pole located on Bonura Drive and, significantly, had been removed prior to suit being filed. On September 24, 2019, the trial court denied Entergy's motion for summary judgment. Shortly thereafter, Plaintiff and Entergy settled before trial, Plaintiff dismissing Entergy from the case entirely.

The matter proceeded to a bench trial on October 23, 2019. As trial began, the parties stipulated that all claims against defendants Sufian Hamed and Hassan M. Hassan, in their individual capacities, were dismissed. Parties stipulated to all but four of Appellees’ exhibits, one of the four objected to exhibits was Exhibit #27 (no description). The exhibits stipulated to were offered and admitted into evidence without objection, consisting primarily of photographs of Appellees property taken by Mr. Perniciaro in 2018, screenshots of Google Maps’ images of both properties as of 2016, email correspondence between Mr. Perniciaro and SCPG, and SCPG's internal records regarding Mr. Perniciaro's formal complaints and the relevant properties (River Discount and the adjacent Perniciaro property).

Appellees first called Christine Perniciaro to the stand. Mrs. Perniciaro testified that she and her husband, Richard Perniciaro, have resided at their current house for eighteen (18) years and that River Discount pre-existed her family home. She further testified that the current lights installed on top of River Discount were a bother, but that she did not know exactly when they had been installed or how often the lights were on. Nevertheless, she testified that the brightness of River Discount's rooftop LED security lights made it difficult to use her backyard, pool, or detached guesthouse. She further testified that the lights shined directly into the back half of her house, illuminating the bedroom, den area, and kitchen throughout the night, thereby impacting her ability to sleep. Mrs. Perniciaro further testified that she felt that the security lights impacted her privacy because the bright lights enabled River Discount's customers to see into her yard at night. Finally, Mrs. Perniciaro testified that she had previously attempted to alleviate some of the brightness with blackout curtains in her bedroom;

309 So.3d 821

however, that she declined to place curtains elsewhere in the house due to cost and incompatible décor.

Appellees next called Richard Perniciaro. Mr. Perniciaro confirmed his wife's testimony that River Discount already existed when they built their home in 2001. Mr. Perniciaro then testified that between the time when he built his home in 2001 and in 2017, when the current LED rooftop security lights were installed, River Discount never maintained any lights on its roof; rather, previous lights were only affixed to the front of the store. He testified that the store had previously installed some other bright lights in 2010, but that those lights were immediately removed upon request.

Mr. Perniciaro also testified that on December 21, 2017, he submitted a formal complaint with the St. Charles Parish Planning and Zoning Department. As reflected by the emails offered into evidence between Mr. Perniciaro and members of the Planning and Zoning Department of St. Charles Parish, as well as in SPCG's official copy of the formal complaint, Mr. Perniciaro's formal complaint alleged that River Discount's lights had "accosted" him as they had been shining directly into his yard, all day, every day since December 16, 2017 (five days prior).

In his formal complaint, Mr. Perniciaro additionally alleged that he had visited River Discount in person on two prior occasions requesting that the lights be repositioned. The formal complaint provided that on the second occasion Mr. Perniciaro was accompanied by local police officers and that the store manager allegedly told police that he would reposition the lights and put them on a timer to shut off by 10:00 p.m. According to Mr. Perniciaro, as of December 21, 2017, when he filed the complaint with the Parish, no such action had been taken.

The relevant exhibits further evidence the following: On January 2, 2018, the St. Charles Parish Planning and Zoning Department opened an investigation into the position of the parking lot lights located at River Discount. On January 16, 2018, St. Charles Parish sent a notice to River Discount finding the store to be in violation of the St. Charles Parish Zoning Ordinance of 1981³ as its lights were positioned in such manner so as to be a nuisance to abutting property owners, namely Appellees. On February 15, 2018, and February 19, 2018, the St. Charles Parish Code Enforcement Supervisor (CES), Ken Lorio, followed up with store personnel and re-inspected the property, finding that the lights had been repositioned to shine away from Appellees’ home and that they had been placed on a timer, turning off at 10:00 p.m. each evening. On February 19 and 20, the Parish closed the initial investigation, finding the matter had been resolved. Mr. Perniciaro thereafter left a recorded voicemail confirming that the matter had been resolved and thanking Michael Albert, Director of the St. Charles Parish Planning and Zoning Department, for the Parish's assistance.

Likewise, during trial, Mr. Perniciaro testified that after the initial investigation, he confirmed with local authorities that River Discount had properly taken action. He then testified that shortly thereafter, on certain nights in the spring, River Discount would keep the lights on past 10:00 pm. Additionally, Mr. Perniciaro testified that the LED security lights had been "swiveled back" to face his property as they were again shining into his yard. He

309 So.3d 822

then affirmed that the lights were...