Alecia Richard Versus Kyle Bourgeois, Sr. ( 2020 )

ALECIA RICHARD NO. 19-CA-494
VERSUS FIFTH CIRCUIT
KYLE BOURGEOIS, SR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 795-561, DIVISION "M"
HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING
March 18, 2020
MARC E. JOHNSON
JUDGE
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.
VACATED AND REMANDED
MEJ
SMC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
ALECIA RICHARD
Tracy G. Sheppard
COUNSEL FOR DEFENDANT/APPELLANT,
KYLE BOURGEOIS, SR.
Christy M. Howley
M. Elizabeth Bowman
JOHNSON, J.
Appellant, Kyle Bourgeois Sr., alleges that the Twenty-Fourth Judicial
District Court committed error when it granted a permanent injunction in a
summary proceeding in favor of Alecia Richard, the aunt of his minor son, Kyle
Junior. Mrs. Richard filed a petition for an injunction against Mr. Bourgeois
pursuant to Louisiana Code of Civil Procedure art. 3601 on May 23, 2019. A
Temporary Restraining Order was issued. The trial court issued a permanent
injunction on June 12, 2019 after a hearing on the matter. For the following
reasons, we vacate the June 12, 2019 judgment and remand the matter for further
proceedings.
FACTS AND PROCEDURAL HISTORY
On May 23, 2019, Alecia Richard filed a Petition for Temporary Restraining
Order, Preliminary and Permanent Injunction against Kyle Bourgeois on behalf of
herself, her minor son and her (alleged incompetent) father. The petition accused
Mr. Bourgeois of threatening Mrs. Richard with bodily harm or death, harassment,
being an uninvited presence at her home, and making telephone calls and sending
texts, emails or other electronic communications to Mrs. Richard. Mrs. Richard
averred that Mr. Bourgeois began texting her the day before she filed the petition,
against her express wishes, as she was watching Kyle Junior until his mother,
Marie Cusachs (Mrs. Richard’s sister) came home from work. A temporary
consent judgment in the custody case between Mr. Bourgeois and Ms. Cusachs
ordered that the parties, or their designated representatives, exchange physical
custody of Kyle Junior on the days specified in the order at the First District Police
Station at 4116 Hessmer Avenue in Metairie at 7:00 p.m.
The petition also alleges Mr. Bourgeois sent the police over to her home
looking for his son and that he has threatened to continue to do so. Mrs. Richard
19-CA-494 1
also alleges that Mr. Bourgeois sent her a text message that read, “I WILL
DESTROY YOU,” has attempted to run her father off of the road, and calls her
derogatory names when leaving the police station after picking up or dropping off
Kyle Junior. An order of protection, effective through May 30, 2019, was issued
that same day and a rule to show cause for order of protection/injunction was set
for the morning of May 30th.
On May 30, 2019, the order of protection was extended through June 12,
2019, and the rule to show cause was reset for that morning at 9:00 a.m., because
no service had been made on Mr. Bourgeois. Instructions were provided to serve
Mr. Bourgeois at the First District Police Station the next time he exchanged
custody of Kyle Junior with his mother or the Richards. Mr. Bourgeois was served
with the initial and subsequent orders on June 5, 2019.
On June 12, 2019 both Mrs. Richard and Mr. Bourgeois appeared pro se for
the hearing on the injunction. The parties and their spouses, Mr. Brandon Richard
and Mrs. April Bourgeois, testified. The parties admitted the following evidence:
copies of text messages they, or Mr. Bourgeois and Ms. Cusachs, exchanged,
monthly school calendars for the school where Kyle Junior attended kindergarten
last year, and one page of a temporary consent judgment in 24th Judicial District
Court Case No. 770-981, which ordered “[t]here shall be no ‘drama’ when the
parties exchange physical custody of Kyle Junior, or at any other time.”
Before ruling, the trial court advised both parties to focus on the well-being
of Kyle Junior. The judge advised Mrs. Richard that she should respond to Mr.
Bourgeois’ inquiries about Kyle Junior’s whereabouts. The judge also advised Mr.
Bourgeois to be respectful and civil when interacting with the Richards and to be
aware of negative effects the conflict among Mr. Bourgeois, Ms. Cusachs, and the
Richards could have on Kyle Junior. The court ordered the parties not to subject
the child or one another to derogatory language and not to harass or abuse one
19-CA-494 2
another, and court costs were to be split between the parties. While ruling, the
judge stated, “I'm not going to issue the Standard Uniform Abuse Prevention Order
that the State has and it gets filed with the State. It's going to be an Order of the
Court in the terms that I've just mentioned.” However, the trial court issued a
Standard Uniform Abuse Prevention Order as a permanent injunction, and the
terms referenced were issued in an addendum attached to the order on June 12,
2019.
LAW AND ANALYSIS
First, we address the contradiction between the oral judgment given in court
on June 12, 2019 and the subsequent issuance of a Uniform Abuse Prevention
Order in the matter on the same date. A trial judge may render a written judgment
that differs in substance from his or her prior oral statements. The oral statements
form no part of the judgment. The written judgment is the only ruling from which
an appeal may be taken.1 Bourgeois v. Bazil, 18-676 (La.App. 5 Cir. 4/24/19); 271
So.3d 341, 348 (citations omitted). When there is a conflict between oral reasons
for judgment and a written judgment, the written judgment controls. Id. This is
true even when the trial court may have intended otherwise. Id. Accordingly, the
Uniform Abuse Prevention Order issued by the trial court is a valid judgment,
pending the instant appeal.
Under Louisiana Code of Civil Procedure art. 3601, “[a]n injunction shall
issue in cases where irreparable injury, loss or damage may otherwise result to the
applicant, or in other cases specifically provided by law.” Lassalle v. Daniels, 96–
176 (La.App. 1 Cir. 5/10/96); 673 So.2d 704, 709, writ denied, 96–1463 (La.
9/20/96); 679 So.2d 435. An injunction is a harsh, drastic and extraordinary
remedy, and should only issue where the mover is threatened with irreparable loss
or injury without adequate remedy at law. Lafreniere Park Found. v. Friends of
1
See also Louisiana Code of Civil Procedure arts. 1911 and 1918.
19-CA-494 3
Lafreniere Park, Inc., 97–152 (La.App. 5 Cir. 7/29/97); 698 So.2d 449, 452, writ
denied, 97–2196 (La.11/21/97); 703 So.2d 1312.
“The issuance of a permanent injunction takes place only after a trial on the
merits in which the burden of proof is a preponderance of the evidence.” Zeringue
v. St. James Parish School Board, 13–444 (La.App. 5 Cir. 11/19/13); 130 So.3d
356, 358-59, citing Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03–2220 (La.
4/14/04); 875 So.2d 22, 29. The appellate court reviews the granting or denial of a
preliminary injunction under the manifest error standard. Id. The standard is the
same for a permanent injunction. Id.Upon review of the record, we find that the trial court improperly converted
the hearing for preliminary injunction to a permanent injunction hearing. “The
jurisprudence is clear that a preliminary hearing cannot be converted to a
permanent injunction hearing absent a stipulation of the parties to the contrary.”
Elysian Fields Church of Christ v. Dillon, 08–989 (La.App. 4 Cir. 3/18/09); 7
So.3d 1227, 1232. “A preliminary injunction is merely provisional and is tried as a
summary proceeding. By contrast, a permanent injunction must be tried as an
ordinary proceeding.” Hyman v. Puckett, 15–930 (La.App. 4 Cir. 5/4/16); 193
So.3d 1184, 1190.
In the instant case, the first temporary restraining order (TRO) expired on
the day the preliminary injunction hearing was scheduled, May 30, 2019. Because
service was not effected on Mr. Bourgeois, the hearing was continued until June
12, 2019. According to the May 30, 2019 minute entry, Mrs. Richard was
provided with a certified copy of an Order to Extend Order of Protection and
Temporary Restraining Order2 in open court, and the service instructions were to
2
We note that because the Order to Extend Order of Protection referenced the temporary restraining order
(TRO) issued on May 23, 2019, as opposed to the TRO issued on May 30, 2019, both the TRO issued on
May 23, 2019 and the TRO issued on May 30, 2019 expired on June 10, 2019.
19-CA-494 4
attempt to serve Mr. Bourgeois at a physical custody exchange of Kyle Junior in
front of the Sheriff’s Office.
The record does not indicate that the parties entered into a stipulation that
the preliminary hearing be converted to a hearing for a permanent injunction. In
Louisiana Serv. & Contracting Co., Inc. v. St. Bernard Par. Gov't, 08–174
(La.App. 4 Cir. 11/26/08); 1 So.3d 557, 560, writ denied, 09–439 (La. 4/17/09); 6
So.3d 792, the Fourth Circuit upheld a permanent injunction granted after a
hearing for preliminary injunction, without a full trial on the merits. The Fourth
Circuit opined that “it is equally well established that where a judgment denying a
preliminary injunction after a hearing on the rule also passes on the merits of the
case and effectively disposes of all issues presented by the pleadings, such
judgment is a final judgment.” However, that case is distinguishable from the
instant case in that the appellate court in Louisiana Serv. & Contracting Co., Inc.
noted that “the trial court went to great lengths to provide the parties with adequate
time to submit evidence and brief the issues,” and “there were no factual disputes
[in that case . . .,] and the legal issues were vigorously contested in [. . .] pre-
hearing and post-hearing memorandums.” Id. “A permanent injunction should not
be granted unless the parties know their case is to be tried on the merits and have
an opportunity to prove or defend their case on a preponderance of the evidence”
New Orleans Fed. Sav. & Loan Ass'n v. Lee, 425 So.2d 947, 949 (La.App. 4th Cir.
1983). Mr. Bourgeois, representing himself pro se, only had six days to prepare
after receiving notice to “show cause on June 12, 2019 [. . .] why the foregoing
Temporary Restraining order [he was served with] should not be made a
Preliminary Injunction3.”
3
The Louisiana Uniform Abuse Prevention Order Mr. Bourgeois was served with was issued on May 30,
2019 at 9:21 a.m. Underneath the judge’s signature, a check mark appears besides the option “if TRO,
issued ex parte.”
19-CA-494 5
In Lasalle, supra, an area judge filed an action seeking an injunction against
a social acquaintance, who had, over a period of seven years, began making
harassing phone calls to the judge’s house and progressed to passing by her house,
leaving notes in her mailbox and on her door, threatening her in her workplace
parking facility, and abusing other court personnel. After a hearing where seven
witnesses besides the parties testified, the First Circuit affirmed the trial court
judgment granting only a preliminary injunction in favor of the judge. Similar to
Lasalle, in the instant case, the hearing addressed the case on its merits, the parties
introduced evidence into the record, and a few witnesses testified. “[I]n some
cases the merits of an action may be decided during an interlocutory proceeding,
this is only when the parties have expressly agreed to submit the case for final
decision at the hearing on the rule for a preliminary injunction.” Zachary
Mitigation Area, LLC v. Tangipahoa Par. Council, 16–1675 (La.App. 1 Cir.
9/21/17); 231 So.3d 687, 692; See also Bally's Louisiana, Inc. v. Louisiana
Gaming Control Bd., 99–2617 (La.App. 1 Cir. 1/31/01); 807 So.2d 257, 263, writ
denied, 01–510 (La. 1/11/02); 807 So.2d 225. (“The principal demand, as opposed
to the preliminary injunction, is determined on its merits only after a full trial under
ordinary process, even though the hearing on the summary proceedings to obtain
the preliminary injunction may touch upon or decide issues regarding the merits.”)
Mr. Bourgeois did not consent to the June 12, 2019 hearing’s conversion to a
hearing for permanent injunction, did not receive an opportunity to consent to the
conversion, or receive notice that the hearing could result in a permanent
injunction against him. In fact, at the end of the June 12, 2019 hearing, the trial
court’s oral ruling stated that a Uniform Abuse Protection Order would not issue.
Because Mr. Bourgeois and Mrs. Richard did not “expressly agree to submit the
case for final decision” at the preliminary injunction hearing, we vacate the order
granting a permanent injunction against Mr. Bourgeois. See Bally’s, supra, at 263.
19-CA-494 6
DECREE
For the foregoing reasons, we vacate the judgment dated June 12, 2019
granting permanent injunctive relief in favor of Mrs. Richard. This matter is
remanded for further proceedings. Each party is to bear its own costs on appeal.
VACATED AND REMANDED
19-CA-494 7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 18, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-494
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE HENRY G. SULLIVAN, JR. (DISTRICT JUDGE)
CHRISTY M. HOWLEY (APPELLANT)
MAILED
TRACY G. SHEPPARD (ATTORNEY) M. ELIZABETH BOWMAN (ATTORNEY)
412 DOLHONDE STREET 629 LAFAYETTE STREET
GRETNA, LA 70053 GRETNA, LA 70053