MARK AND LATRICIA GREGGS v. THERESA REYNERSON (2026)

In this action involving encroachment of city ordinance setbacks, Plaintiffs, Mark and Latricia Greggs, appeal a judgment sustaining Defendant's, Theresa Reynerson, peremptory exception raising the objection of prescription and awarding sanctions and attorney fees pursuant to La. Code Civ. P. art. 863 in the amount of $1,500.00 against Plaintiffs and Plaintiffs’ counsel, Kevin J. Gillie. For the reasons that follow, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Plaintiffs have resided at 3415 Lavey Lane, Baker, Louisiana for over thirty years, becoming the owners of said property in June 2015. Defendant was Plaintiffs’ next door neighbor for that same period of time, residing in and owning the residence located at 3405 Lavey Lane, Baker, Louisiana. The two residences’ driveways are adjacent to each other and were originally divided by a strip of grass, which Plaintiffs and Defendant together paved over. By approximately 2004, Defendant constructed a 15 x 18 foot storage shed on top of her existing driveway. Plaintiffs had access to and used the storage shed over the years to store, among other things, their lawn equipment.

In October 2024, Defendant advised Plaintiffs that she was planning to sell her property and relocate out of state. In conjunction with this move, on December 2, 2024, Defendant requested Plaintiffs sign a waiver for the shared use of the parties’ driveways. Plaintiffs refused to sign the waiver and instead filed a “complaint for residential encroachment” on December 23, 2024, in proper person. Within the complaint, Plaintiffs alleged that they and Defendant had been neighbors for approximately thirty years and that during that time, Defendant erected a shed on Defendant's property. Specifically, Plaintiffs alleged:

The real property of Defendant immediately adjoins Plaintiffs’] property on the north side of the street. There has been erected, and now standing on Defendant's property, a one-story wooden framed building, approximately 20 feet x 20 feet in size, which building, and its structure immediately adjoins Plaintiff[s’] real property on the west side. Additionally, the respective driveways have been and are now immediately adjoined as well.

Plaintiffs further alleged that when Defendant requested they sign a waiver for “shared use of driveways,” Defendant advised Plaintiffs that her driveway and shed encroached Plaintiffs’ property based on the East Baton Rouge Parish descriptive maps.¹ Plaintiffs averred that they contacted the Baker City Inspections Office and were advised that the encroachment on their property could become a major issue in the event of a future sale of the property. Plaintiffs cited Baker City Municipal Code of Ordinances, Chapter 27, Article II, Subsection (7) regarding setbacks, noting that “for all one-story buildings of accessory use, the rear setback shall be ten feet from the rear property line and the side setback shall be no less than five feet from the side property line.” Plaintiffs alleged that Defendant's building was only set back four feet from the rear property line, and only four inches from the side property line. Therefore, Plaintiffs sought an injunction to cease the sale of Defendant's property; that Defendant be required to remove the encroaching structure, or the court order the removal of the structure at Defendant's costs; that the court grant a judgment and decree in favor of Plaintiffs, forever enjoining Defendant from interfering, harassing and disturbing the full use and enjoyment of Plaintiffs’ driveway and access to their property; and that Defendant be cast with all costs of this proceeding.

Attached to this complaint was an order, which the trial court executed ex parte on December 30, 2024, ordering an “immediate injunction ․ halting the sale of the property located at 3405 Lavey Lane, Baker ․ and that [D]efendant be required to remove the encroaching structure at issue in the petition,” or alternatively, that the court “appoint a commissioner with full authority to abate the nuisance via the removal of the structure at Defendant's cost” if Defendant failed to remove it herself. No specified time was given for the removal of the structure. The order further provided that Defendant was enjoined from interfering, harassing, or disturbing the Plaintiffs’ full use and enjoyment of their driveway. A hearing for the matter was set for March 10, 2025.

On January 17, 2025, Defendant filed a “motion to dissolve injunction[,] declinatory exception, dilatory exception[,] and peremptory exception.” In pertinent part, Defendant alleged that 3405 Lavey Lane was under contract to be sold, and that the instant matter was filed on the eve of her closing of the sale of the property specifically to delay or cause Defendant to lose the act of sale. Defendant requested the court issue an immediate order vacating the order signed December 30, 2024, enjoining the sale of Defendant's property, and that a hearing on the preliminary injunction be set within ten days of the signing of this order, pursuant to La. Code Civ. P. art. 3602.

On January 27, 2025, the trial court executed the order vacating the previous ex parte order enjoining the sale of the immovable property, and setting the hearing on the preliminary injunction for February 3, 2025, with Defendant's exceptions to be contemporaneously heard.

On February 3, 2025, Plaintiffs filed, through counsel, a motion for contempt of court asserting Defendant failed to comply with the December 30, 2024 ex parte order mandating the removal of the shed from her property. On that same day, Defendant moved in open court to amend her previously filed peremptory exception to raise the issue of prescription, which the trial court granted, noting that a hearing on the matter would have to be set. Following a brief exchange between the court and the parties, the court found that there was no reason to enjoin the sale of Defendant's home pending this litigation; the trial court also set the hearing on the status of the alleged encroaching building and Defendant's exception of prescription for February 18, 2025.² These rulings were memorialized in a judgment dated April 1, 2025.

The court minutes note that this matter was removed from the trial court's February 18, 2025 docket, pursuant to correspondence received from Defendant's counsel stating that the matter had been settled.

On March 13, 2025, Defendant filed an answer, dilatory exceptions, peremptory exceptions, and reconventional demand. Regarding prescription, Defendant averred that Plaintiffs’ claims for any alleged violation of the subdivision's setback restrictions had prescribed pursuant to La. Civ. Code art. 781, which provides a two-year prescriptive period from any “noticeable violation.” Moreover, Defendant asserted that any zoning violation claim had also prescribed, citing La. R.S. 9:5625(A)(1), which provides a five-year period to bring a claim from the first act constituting the commission of the violation; therefore, this action was prescribed. In her reconventional demand, Defendant averred that following her request for Plaintiffs to execute a waiver in December 2024, she secured a survey by James Falgout on December 19, 2024, which determined that the storage shed in question is entirely located within the boundaries of Defendant's property. Moreover, Defendant asserted that following her survey, Plaintiffs also had a survey completed on January 30, 2025, which did not denote any encroachment or possible encroachment by Defendant. Defendant alleged that not only did Plaintiffs initiate this action without any prior investigation as to the validity of their claims, but also personally communicated with one of Defendant's contracted buyers in an effort to secure compensation from the Defendant or the buyer for alleged encroachment, causing Defendant to lose that sale. Therefore, Defendant sought damages for the wrongful issuance of the preliminary injunction, as well as compensatory damages for the loss of a sale and the loss of reasonable rental value of the home during the pendency of this litigation, and attorney fees pursuant to La. Code Civ. P. art. 3608. There was a notation at the end of the pleading to hold service.

On March 24, 2025, Plaintiffs filed a motion and order for continuance of rule to show cause on Defendant's exception of prescription scheduled for March 26, 2025, arguing that they never received written notice of the rule hearing date.³ Plaintiffs averred that although they were aware of the hearing date, they had never been formally served with notice of the date, and the record indicated that Defendant had never actually placed the matter on the trial court's docket for the scheduled rule. Moreover, Plaintiffs asserted that their counsel was very ill, further warranting the continuance.

On March 26, 2025, the parties and their respective counsel appeared before the trial court, which orally denied Plaintiffs’ motion to continue. The trial court then heard testimony and took evidence in connection with Defendant's exception of prescription. Of note, Defendant introduced an act of cash sale dated March 14, 2025, to show that she was no longer the owner of the property at issue. Once the parties rested, the trial court sustained Defendant's exception of prescription. Finally, the trial court addressed Plaintiffs’ motion for contempt. Plaintiffs initially argued that they had not set the motion for contempt for hearing that day and would rather stay that issue pending an appeal of the prescription matter. Following an exchange between the trial court and Plaintiffs’ counsel, the trial court sanctioned Plaintiffs and their counsel for filing a frivolous motion.

These oral rulings were memorialized in a written judgment executed by the trial court on April 29, 2025, which provided in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that Plaintiffs’ Motion for Contempt although withdrawn in open court is found by the court to have not been supported by existing law or an extension or modification thereof and was presented for an improper purpose thereby warranting the awarding of sanctions and attorney's fees under La. [Code Civ. P. art.] 863 in the amount of $1,500.00 Dollars against Plaintiffs’ counsel, Kevin J. Gillie and the Plaintiffs, Mark Greggs and La[t]ricia Greggs.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the Defendant's Peremptory Exception of Prescription is hereby granted and Plaintiffs’ claims are hereby dismissed with prejudice at their costs.

Plaintiffs now appeal assigning the following as error:

1. The trial court erred in granting the peremptory exception of prescription despite the Defendant's judicial admission of bad faith and lack of belief in ownership.

2. The trial court erred in failing to apply the law of imprescriptibility to a structure built on a public utility servitude in violation of [La. Civ. Code] art. 458.

3. The trial court committed a manifest error of law by imposing $1,500.00 in sanctions for a well-grounded motion to enforce a prior court order.

4. The trial court abused its discretion by denying a peremptory continuance under [La. Code Civ. P.] art. 1602 when a material witness was absent due to the court's failure to issue a formal Rule to Show Cause.

Supplementation of Record

We note that after this record was lodged, the trial court supplemented the record on August 25, 2026, with the missing minute entry from the March 26, 2025 hearing as well as all the evidence that was adduced during that hearing.

Meanwhile, in separate motions filed on March 2, 2026, and August 31, 2026, Plaintiffs sought to supplement the record with the missing transcript from the February 3, 2025 hearing, attaching same to their August 31, 2026 motion to supplement. Defendant objected to the motion to supplement, arguing that it was a delay tactic, resulting in continued cost and expense to Defendant. Louisiana Code of Civil Procedure article 2132 provides in pertinent part that a record on appeal, which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court by the parties by stipulation, by the trial court, or by the order of the appellate court. We find the transcript useful in deciding the issue of sanctions that the Plaintiffs have appealed, and therefore grant the March 2, 2026 and August 31, 2026 motions to supplement the record with the February 3, 2025 hearing transcript.

Defendant's Motion to Dismiss Appeal

On February 13, 2026, Defendant filed a motion to dismiss appeal, or alternative peremptory exception of no right of action, peremptory exception of no cause of action, request for sanctions, and answer to the appeal. Within this motion, Defendant averred that as she is no longer the owner of the alleged encroaching property at issue and any relief granted by this court to the Plaintiffs cannot compel her to remove the structure from a property she no longer owns. Thus, Defendant moved for the appeal to be dismissed and sought damages for a frivolous appeal and attorney fees for the filing of the motion. Additionally, Defendant's motion incorporated an alternative answer to the appeal, asserting the appeal constitutes an abuse of process warranting the imposition of sanctions for the prosecution of a frivolous appeal under La. Code Civ. P. art. 2164. We find merit in Defendant's argument insomuch as we agree that following the sale of the property to a third-party, the relief Plaintiffs sought specifically against Defendant is no longer feasible, i.e., Defendant may no longer be compelled to remove any alleged encroaching structure, nor can she feasibly prohibit the Plaintiffs from the full use of their driveway. However, insofar as the Plaintiffs sought review of the denial of their motion to continue, and the sanctions levied against them, those assignments are still ripe for determination; therefore, we cannot dismiss the appeal in its entirety, or find that its filing was frivolous. Thus, Defendant's motion to dismiss the appeal is granted in part regarding the issues of prescription, and denied in part; the relief requested in Defendant's answer is denied, and Defendant's exceptions are denied as moot.

LAW AND ANALYSIS

Denial of Motion to Continue

In their fourth assignment of error, Plaintiffs assert that the trial court's refusal of Plaintiffs’ request to continue the hearing held on March 26, 2025, was an abuse of discretion. Plaintiffs maintain that Mr. Greggs is a truck driver who requires a formal court order to be excused from work; as the March 26, 2025 hearing was set without a written order or rule, Mr. Greggs was unable to attend the hearing that determined the merits of his case. Alternatively, Plaintiffs assert there were good grounds for the trial court to grant the continuance as Plaintiffs’ counsel was suffering from a respiratory infection on the date of the hearing and mandated to remain out of work on required medical leave pursuant to a doctor's note.

The trial court may grant a continuance on peremptory or discretionary grounds. La. Code Civ. P. arts. 1601 and 1602. There are only two peremptory grounds: (1) the party seeking the continuance, despite due diligence, has been unable to obtain material evidence; or (2) a material witness is absent without the contrivance of the party applying for the continuance. La. Code Civ. P. art. 1602. Absent peremptory grounds, a continuance rests within the sound discretion of the trial court, which may grant a continuance “if there is good ground therefore.” La. Code Civ. P. art. 1601. The moving party has the burden of showing that he met the requirements set forth in La. Code Civ. P. art. 1602. Thurman v. Aguilar, 2021-1513 (La. App. 1st Cir. 6/22/22), 343 So.3d 806, 814, writ denied, 2022-01109 (La. 11/1/22), 349 So.3d 8. When the conditions of Article 1602 are met, the granting of a continuance is mandatory. The policy behind the mandatory continuance is to ensure that a party is not deprived of his day in court or his right to properly present his defense when not due to his own fault or delinquency. Id. However, the “mere absence of a party from court is not [a] sufficient ground for granting a continuance.” Doe v. Lewis, 2020-0320 (La. App. 4th Cir. 12/30/20), 312 So.3d 1165, 1171. An appellate court should not disturb the trial court's grant or denial of a continuance under La. Code Civ. P. art. 1601 absent a clear abuse of discretion. City of Bogalusa v. Moses, 2020-0165 (La. App. 1st Cir. 4/16/21), 323 So.3d 404, 407.

The record demonstrates that all parties were aware that March 26, 2025 was set as the hearing date for Defendant's exception of prescription. On the date of the hearing, Plaintiffs’ counsel contended that he believed the March 26, 2025 date was set in order to encourage settlement between the parties, not that the hearing on the exception of prescription would actually be held on that date. Prior to hearing arguments on the prescription issue, Plaintiffs’ counsel expressly waived Mr. Greggs’ appearance. One of the plaintiffs, Mrs. Greggs, was present at the hearing and testified on behalf of the Plaintiffs. Mrs. Greggs testified that Mr. Greggs’ testimony would be no different than hers, if he were present. Plaintiffs also proffered affidavits executed by both Mr. and Mrs. Greggs, which are identical in content. As Plaintiffs’ interests were well-represented, and because Plaintiffs’ counsel did not seek to have a written order executed by the trial court noting the hearing date so that Mr. Greggs was able to attend, we do not find that Plaintiffs carried their burden to prove their entitlement to a peremptory continuance.

Additionally, we do not find that the trial court abused its discretion in denying Plaintiffs’ request for a continuance due to Plaintiffs’ counsel's alleged illness. Plaintiffs’ counsel was present, examined and cross-examined witnesses, presented argument, and introduced evidence. Although Plaintiffs’ counsel asserted he was ill, he participated fully in every aspect of the hearing without hindrance. This assignment of error lacks merit.

Sanctions

We must now determine whether the trial court erred in imposing sanctions upon Plaintiffs and Plaintiffs’ attorney, Mr. Gillie. Louisiana Code of Civil Procedure article 863 provides, in pertinent part:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name․

B. [T]he signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:

(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.

(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

․.

D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.

E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.

Accordingly, under La. Code Civ. P. art. 863, there is an affirmative duty imposed on attorneys and litigants to make an objectively reasonable inquiry into the facts and the law. Dougherty v. Dougherty, 2021-0433 (La. App. 1st Cir. 3/29/22), 341 So.3d 669, 678. In determining whether an attorney has breached that affirmative duty, the trial court should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading was submitted. Dougherty, 341 So.3d at 678. Louisiana Code of Civil Procedure article 863 does not empower a trial court to impose sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. Id. Furthermore, La. Code Civ. P. art. 863 is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Berthelot v. Berthelot, 2017-1331 (La. App. 1st Cir. 7/18/18), 254 So.3d 730, 735; Carrollton Presbyterian Church v. Presbytery of South Louisiana of Presbyterian Church (U.S.A.), 2014-1214 (La. App. 1st Cir. 3/9/15), 172 So.3d 1, 8, writ denied, 2015-0682 (La. 5/22/15), 171 So.3d 257.

The record before us provides that Plaintiffs filed a motion for contempt for disobeying a court order on February 3, 2025. Within the motion, Plaintiffs asserted that the trial court had issued an order on December 30, 2024, requiring the removal of the encroaching structure. However, to date, Defendant had failed to comply with the trial court's lawful order; thus, Plaintiffs requested a hearing to determine the appropriate “sanctions, costs and fees including attorney's fees” under the provisions of La. Code Civ. P. arts. 221 and 3601 et seq., and La. R.S. 13:4611. Within the motion, Plaintiffs acknowledged Defendant's filing of a motion to dissolve the injunction of the sale of the property and requested the matter be set for hearing. At the February 3, 2025 hearing, it is clear that the injunction prohibiting the sale of the property was dissolved, but no clear ruling was made regarding the validity of the injunction already granted concerning the removal of the structure. Although we agree with the trial court that the motion for contempt may have been filed prematurely, based on the record before us, we cannot say it was so unreasonable for Plaintiffs’ counsel to file such a pleading as to warrant sanctions for a frivolous filing. Without determining the validity of the December 30, 2024 order to remove the shed, it was an order of the court, which Defendant had not abided by at the time the motion for contempt was filed. Therefore, we find the trial court was manifestly wrong in sanctioning Plaintiffs and Plaintiffs’ counsel under La. Code Civ. P. art. 863, and reverse this portion of the judgment.

CONCLUSION

For the forgoing reasons, we grant Plaintiffs’ motion to supplement and we affirm the trial court's denial of Plaintiffs’ motion to continue, reverse the trial court's award of sanctions in the amount of $1,500.00 against Plaintiffs, Mark and Latricia Greggs, and their attorney, Kevin J. Gillie, and dismiss the remainder of the appeal as moot. We grant in part, and deny in part Defendant's, Theresa Reynerson, motion to dismiss appeal, deny her answer, and deny her exceptions as moot. Costs of the appeal are split, one-half to Plaintiffs, Mark and Latricia Greggs, and one-half to Defendant, Theresa Reynerson.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART. MOTIONS TO SUPPLEMENT GRANTED; MOTION TO DISMISS GRANTED IN PART, DENIED IN PART; ANSWER DENIED AND EXCEPTIONS OF NO RIGHT OF ACTION AND NO CAUSE OF ACTION DENIED AS MOOT.

In addition to the reasons set forth in the opinion, I agree with the decision to reverse the contempt sanctions imposed upon Plaintiffs’ counsel because I find the trial court erred by sanctioning counsel sua sponte without first setting the matter for hearing and giving counsel an opportunity to present evidence relevant to the issue of imposition of sanctions. See La. C.C.P. art. 863; Division of Administration, Office of Community Development - Disaster Recovery Unit v. Joseph, 22-65 (La. App. 5 Cir. 12/21/22), 355 So.3d 144, 150.

FOOTNOTES

1.   A copy of this map was attached to the complaint as Exhibit A.

2.   Plaintiffs’ motion for contempt was also set for hearing on February 18, 2025.

3.   Based on the record before us, it is unclear when this date was set or how Plaintiffs learned of it. However, in a motion to dismiss filed with this court, Defendant avers that this hearing was set after counsel contacted the trial court to docket the exception of prescription and motion for contempt, and the trial court “noticed” both matters for hearing on March 26, 2025. Moreover, during the hearing, Plaintiffs’ counsel referenced an opposition he drafted to the exception.

FIELDS, J.

Penzato, J., assigns additional reasons