Opinion
2017 CA 0995
04-09-2018
BRANDON WADE HIRSTIUS v. CLECO CORPORATION, BELLSOUTH TELECOMMUNICATIONS, LLC, CHARTER COMMUNICATION, LLC
Brandon Wade Hirstius Lacombe, Louisiana Plaintiff-Appellant In Proper Person Daniel A. Webb Brooke A. Riggs Laken N. Davis New Orleans, Louisiana Counsel for Defendant-Appellee Renaissance Media, LLC
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 HONORABLE WILLIAM J. KNIGHT, JUDGE Brandon Wade Hirstius
Lacombe, Louisiana Plaintiff-Appellant
In Proper Person Daniel A. Webb
Brooke A. Riggs
Laken N. Davis
New Orleans, Louisiana Counsel for Defendant-Appellee
Renaissance Media, LLC BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
Disposition: EXCEPTION OF PRESCRIPTION OVERRULED. JUDGMENT ON APPEAL AFFIRMED IN PART; AMENDED IN PART; AND REMANDED WITH INSTRUCTIONS.
CHUTZ, J.
In this trespass action, plaintiff-appellant, Brandon W. Hirstius, appeals a judgment rendered in his favor against defendant-appellee, Renaissance Media, LLC, raising issues concerning quantum and the assessment of costs. After the appeal was lodged, Renaissance filed a peremptory exception raising the objection of prescription. We overrule the exception, affirm in part, amend in part, and remand with instructions.
FACTS AND PROCEDURAL BACKGROUND
This matter has previously been before this court on multiple occasions involving various parties and issues. In Hirstius v. Cleco Corporation , 14-1456, p. 1 (La. App. 1st Cir. 6/5/15) (unpublished) ( Hirstius II ), which involved the same parties as the instant appeal, this court set forth the following facts:
Mr. Hirstius also raised claims in this suit against AT&T Louisiana and Cleco Power LLC. Those claims were disposed of by the trial court in separate proceedings. See Hirstius v. Cleco Corporation , 16-0613 (La. App. 1st Cir. 12/22/16) (unpublished) (claims against AT&T) and Hirstius v. Cleco Corporation , 14-1457 (La. App. 1st Cir. 6/5/15) (unpublished) (claims against Cleco), writ denied, 15-1282 (La. 9/25/15), 178 So.3d 571.
In 1997, Mr. Hirstius purchased a tract of immovable property located in St. Tammany Parish. On May 6, 2011, he filed a trespass suit against BellSouth Telecommunications, Inc. complaining of the unauthorized presence of a utility pole on his property. Mr. Hirstius claims that he first discovered during the BellSouth trial on June 29, 2012, that Renaissance also owned aerial wires attached to the utility pole. Mr. Hirstius is not a customer of Renaissance's cable service.
On May 6, 2013, Mr. Hirstius filed the present suit against Renaissance seeking damages for trespass, as well as mandatory injunctive relief ejecting all of Renaissance's equipment from his property. After various proceedings, Renaissance filed a single pleading raising the peremptory exception of no right of action and, alternatively, a motion for summary judgment on the grounds that Mr. Hirstius' claims were prescribed. Renaissance argued the claims were prescribed because Mr. Hirstius did not file suit against Renaissance within a year of becoming aware of the utility pole and attached wires, which it alleged occurred no later than 2011.
Following a hearing, the trial court concluded Mr. Hirstius' claims were prescribed and granted summary judgment dismissing Renaissance from the suit, with prejudice. The court specifically found that, regardless of when the utility pole and wires originally were placed on Mr. Hirstius' property, he certainly knew of their
existence when he filed suit against BellSouth in 2011. The court found that the claims ... were prescribed since [the] suit was not filed until 2013, more than one year after the filing of the BellSouth suit. The trial court rejected Mr. Hirstius' argument that his claims were not prescribed because they were based on a continuous trespass of his property. ...(Footnotes omitted.)
On appeal in Hirstius II , this court reversed the summary judgment in favor of Renaissance, explaining that since prescription was not evident on the fact of the petition:
Renaissance bore the burden of proof on its motion for summary judgment. It offered no evidence suggesting it had ever ceased using the wires in question for the distribution of its cable service. In fact, the deposition testimony of Renaissance's designated representative, Dustin Dreux, indicated that Renaissance continued to use the wires. When questioned as to why Renaissance needed to use the particular utility pole at issue, Mr. Dreux responded that it was necessary to provide cable service to the residents of Lacombe and that "there is no other pole there available."Hirstius , 14-1456 at pp. 3-4.
Because Renaissance continues to use the aerial wires, it has failed to show that Mr. Hirstius' claims were based solely on a single act of trespass that terminated once the aerial wires were installed. Due to the continuing nature of its alleged wrongful conduct, Renaissance did not meet its burden of establishing that Mr. Hirstius' claims were prescribed. Accordingly, the granting of summary judgment was improper.
After this court remanded Hirstius II , a bench trial was held. The trial court ruled in favor of Mr. Hirstius, awarded him $3,500.00 in damages and ordered each party to pay their own costs. Additionally, the trial court ordered Renaissance to remove its equipment from the utility pole on Mr. Hirstius' property within thirty days of the signing of the judgment. Mr. Hirstius now appeals. He alleges in two assignments of error that the trial court awarded inadequate damages and erred in assessing any costs to him since he had been granted pauper status in this suit.
EXCEPTION OF PRESCRIPTION
Initially, we will consider the peremptory exception raising the objection of prescription filed by Renaissance in the instant appeal. Renaissance acknowledges this court previously ruled against it on the issue of prescription in Hirstius II. That decision reversed the summary judgment granted in Renaissance favor, which was based on the grounds of prescription. Renaissance contends, however, that the Hirstius II holding resulted from this court's conclusion that a material issue of fact existed regarding whether the wires attached to the utility pole on Mr. Hirstius' property were "'live' and transmitting data" within a year of Mr. Hirstius filing his suit. Relying on this interpretation, Renaissance argues that, since Mr. Hirstius introduced no evidence at trial showing the wires were "live" or transmitting data within the year prior to his filing suit, this matter clearly is prescribed. We disagree.
Renaissance misconstrues this court's decision in Hirstius II. The decision was not based on a finding that a genuine issue of fact existed regarding whether Renaissance's wires were "live" and transmitting data. To the contrary, this court concluded the evidence introduced in connection with the motion for summary judgment established Renaissance did, in fact, "[continue] to use the aerial wires." Hirstius II , 14-1456 at p. 4. Specifically, Renaissance's corporate representative deposed that use of the utility pole and attachments on Mr. Hirstius' property was necessary in order to provide cable services to customers in Lacombe, Louisiana and no other utility pole was available at that time. Hirstius II , 14-1456 at p. 3. Since the evidence established Renaissance continued to use the aerial wire(s) at the time of the Hirstius II decision in June 2015, that court specifically found the suit Mr. Hirstius filed against Renaissance in May 2013 was not prescribed. See Hirstius II , 14-1456 at p. 3.
At the time of the trial on the merits, Renaissance's wires remained attached to the utility pole on Mr. Hirstius' property. There were comments at trial suggesting that subsequent to the Hirstius II decision, Renaissance may have installed underground cables on other property and/or is no longer using the aerial wires over Mr. Hirstius' property. Regardless, such information is irrelevant to the issue of whether Renaissance's wires were in use when Mr. Hirstius filed suit in May 2013. This court decided in Hirstius II that this matter was not prescribed because Renaissance was still using the aerial wires over Mr. Hirstius' property at the time his suit was filed. No evidence to the contrary has since been presented. Accordingly, Renaissance's exception of prescription lacks merit and will be overruled.
The trial court remarked in both its oral and written reasons that the aerial wires were no longer being used for the active transmission of data. However, the trial court gave no indication of when Renaissance ceased its use of the aerial wires. Moreover, although the trial court stated in its written reasons that there was testimony indicating "no data is being transmitted on the line," our review of the record revealed no specific testimony to that effect. Perhaps the trial court's remark was based on Mr. Hirstius' testimony that he believed Renaissance's cables were now located underground.
DAMAGE AWARD
Mr. Hirstius alleges the trial court erred in awarding damages because the judgment did not include any amounts for either the use of his property (rent) or for his mental anguish. He contends the trial court limited his damages to invasion of privacy and improperly relied on a prior $3,500.00 damage award made by another trial judge in a claim made by Mr. Hirstius against a different defendant in a separate case.
In Hirstius v. BellSouth Telecommunications , Inc., 12-2104 (La. App. 1st Cir. 8/14/13), 123 So.3d 276, writ denied, 13-2709 (La. 2/7/14), 131 So.3d 868, this court affirmed a judgment awarding Mr. Hirstius $3,500.00 in a trespass action against BellSouth, which arose from the placement of the same utility pole that is at issue in the instant case.
A person injured by trespass is entitled to full indemnification for the damages caused. Mathews v. Steib , 11-0356 (La. App. 1st Cir. 12/15/11), 82 So.3d 483, 488, writ denied, 12-0106 (La. 3/23/12), 85 So.3d 90; Britt Builders , Inc. v. Brister , 618 So.2d 899, 903 (La. App. 1st Cir. 1993). With regard to the amount of damages assessed against a trespasser, the trial court is afforded much discretion. Daray v. St. Tammany Parish , 08-2135, p. 6 (La. App. 1st Cir. 10/9/09) (unpublished), writ denied, 09-2312 (La. 12/18/09), 23 So.3d 945; Beasley v. Mouton , 408 So.2d 446, 448 (La. App. 1st Cir. 1981). Moreover, it is well-settled that a lump sum judgment is presumed to award all items of damages claimed. Bryan v. City of New Orleans , 98-1263 (La. 1/20/99), 737 So.2d 696, 697-98.
Because the trial judge made a lump sum award in this case, it is presumed the award included damages for the use of Mr. Hirstius' property. Moreover, the record affirmatively demonstrates the $3,500.00 award included this item of damages. After the trial judge orally rendered judgment in favor of Mr. Hirstius, he asked the judge whether he would receive anything for the use of his property. The trial judge responded, "Thirty-five hundred dollars[,]" indicating the award included damages for the use of the property. Mr. Hirstius' claim that the trial court failed to award damages for the use of his property lacks merit.
Nor do we find any error or abuse of discretion by the trial judge in referring to the previous $3,500.00 award made to Mr. Hirstius in a separate trespass matter as being "correct." The comment did not reflect the trial judge limited himself to the amount of the previous award, but merely that the judge concluded, in the exercise of his discretion, that the same amount was appropriate under the facts of the instant case.
With respect to Mr. Hirstius' claim for mental anguish damages, the record reflects that the trial court committed a legal error. In declining to award damages for mental anguish, the trial court stated in its oral and written reasons that it was "not allowed to award mental anguish damages" in a trespass case. In fact, damages for mental anguish are recoverable in trespass cases, if the plaintiff sustains his burden of proving same. See Daray , 08-2135 at p. 5; Britt , 618 So.2d at 903. Because the trial court committed legal error in finding mental anguish damages were non-compensable, we must conduct a de novo review to determine whether such an award is warranted. See Held v. Aubert , 02-1486 (La. App. 1st Cir. 5/9/03), 845 So. 2d 625, 630.
The right to recover for mental anguish does not necessarily result from every trespass on property. Mathews , 82 So.3d at 483. Even though mental anguish is a compensable item of damages in trespass cases, such damages must be proven with sufficient evidence. Cenac v. Evangeline Business Park , LLC , 15-0198, p. 7 (La. App. 1st Cir. 5/27/16) (unpublished), writ not considered, 16-1227 (La. 10/17/16), 207 So.3d 1062; Harrington , 732 So.2d at 682. In order to recover for mental anguish, it must be shown the plaintiff suffered more than minimal and normal worry and inconvenience. Robertson v. Geophysical Service , Inc., 469 So.2d 22, 24 (La. App. 1st Cir. 1985); see also Vial v. South Central Bell Telephone Company , 423 So.2d 1233, 1238-39 (La. App. 5th Cir. 1982), writ denied, 432 So.2d 265 (La. 1983).
After an independent examination of the record, we conclude no award for mental anguish is warranted in this case. While Mr. Hirstius' testimony clearly revealed he was frustrated, annoyed, and upset by the trespass on his property, we find his reactions constituted normal annoyance, worry, and inconvenience, which are insufficient to support an award for mental anguish. Robertson , 469 So.2d at 24; Vial , 23 So.2d at 1238-39. Nothing in the record shows Mr. Hirstius sustained injuries rising to the level of compensable mental anguish.
Significantly, Mr. Hirstius declined an offer Renaissance made nearly two years prior to trial to remove its equipment from his property. Renaissance indicated it could remove the aerial wires using a bucket truck on the right of way without entering Mr. Hirstius property. It requested his written authorization, however, to enter his property in order to remove its guy wires and anchor. Mr. Hirstius refused to grant such authorization. His refusal belies any conclusion that the presence of Renaissance's equipment was causing him to suffer anything beyond normal frustration and inconvenience. Despite any assertions made by Mr. Hirstius during oral arguments before this court, if the presence of Renaissance's equipment was causing Mr. Hirstius to suffer serious mental anguish, we believe he would have taken the opportunity offered by Renaissance to have it removed from his property.
ASSESSMENT OF COSTS
Since he prevailed at trial and was granted pauper status in February 2015, Mr. Hirstius contends the trial court erred in assessing him with any portion of the costs in this matter. In response, both in brief and at oral argument, Renaissance conceded there is some merit in Mr. Hirstius' contention. Renaissance argues, however, that it should be assessed only with those costs incurred after Mr. Hirstius was granted pauper status and which are associated with the claims made against it, as opposed to costs incurred by Mr. Hirstius in pursuing his claims against Renaissance's co-defendants, AT&T and Cleco.
The trial court originally signed an order allowing Mr. Hirstius to proceed in forma pauperis on August 13, 2014, which was after he had been granted the appeal in Hirstius II. By order dated December 22, 2014, this court vacated that pauper order and remanded this matter to the trial court to allow Renaissance an opportunity to traverse Mr. Hirstius' pauper status. On February 12, 2015, the trial court signed a second order granting Mr. Hirstius pauper status. --------
Except as otherwise provided by law, "the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." La. C.C.P. art. 1920. In a pauper case, the discretion afforded by La. C.C.P. art. 1920 is limited by the more specific rule of La. C.C.P. art. 5186, which mandates costs be paid by the party against whom judgment is rendered. Curry v. Healthsouth North Rehabilitation Hospital-Homer Campus , 46,015 (La. App. 2d Cir. 3/11/11), 58 So.3d 1143, 1150-51, writ denied, 11-0749 (La. 5/27/11), 63 So.3d 995; Ulyanov v. Ulyanov , 09-0642 (La. App. 4th Cir. 9/23/09), 23 So.3d 380, 381.
In this case, the trial court committed legal error in ordering Mr. Hirstius, an indigent party in whose favor judgment was rendered, to bear all of his own costs. With respect to the costs Mr. Hirstius incurred prior to the February 2015 pauper order, the trial court acted within its discretion in ordering Mr. Hirstius to bear those costs. See La. C.C.P. art. 1920. Nevertheless, under La. C.C.P. art. 5186, the trial court should have assessed Renaissance with all costs associated with Mr. Hirstius' claims against it that were incurred after the signing of the pauper order on February 12, 2015. That portion of the trial court judgment must be amended accordingly. Further, because this matter involves claims by Mr. Hirstius against multiple other defendants, which were disposed of apart from the instant proceedings, this court is unable to determine from the record the amount of costs specifically associated with Mr. Hirstius' claims against Renaissance. This matter will be remanded to the trial court with instructions to determine the correct amount of such costs.
CONCLUSION
For the above reasons, the portion of the trial court judgment ordering each party to bear their own costs is amended to order that Renaissance pay all costs incurred by both parties beginning on February 12, 2015, that were specifically associated with the claims made by Brandon W. Hirstius against Renaissance. The judgment of the trial court is affirmed in all other respects. This matter is remanded to the trial court, which is ordered to determine within thirty days of the date of this opinion the amount of costs incurred in this matter from February 12, 2015, that were attributable to the claims made herein against Renaissance. All costs of this appeal are to be paid by Renaissance. Hirstius , 14-1456
EXCEPTION OF PRESCRIPTION OVERRULED. JUDGMENT ON APPEAL AFFIRMED IN PART; AMENDED IN PART; AND REMANDED WITH INSTRUCTIONS.