HOSE v. CONNELL (2026)

ON REHEARING

Considering the Application for Clarification or Rehearing filed by plaintiffs, Louis V. Hose and Julie H. Hose, we grant rehearing, in part.

Louisiana Code of Civil Procedure article 2164 vests this Court with authority to render “any judgment which is just, legal and proper․” As Official Comment (a) to Article 2164 reflects, “[t]he purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.”

This Court has recognized the possibility that exceptional circumstances may exist that would make the granting of injunctive relief requiring the removal of an obstacle to a servitude inappropriate, giving courts freedom to consider alternative remedies. See Gaharan v. State Through Dep't of Transp. & Dev., 579 So. 2d 420, 423 (La. 1991); See also, Dyer & Moody v. Dynamic Constructors, 357 So. 2d 615, 617 (La. App. 1st Cir. 1978) (mandatory injunction to which plaintiff was otherwise entitled was deemed an unduly “harsh and impractical” remedy under the particular facts and circumstances).

Considering the specific circumstances of this case, we find that the court of appeal's ruling, granting the parties’ respective claims for the removal of certain obstructions (“the fence and two palm trees associated with 6333 Annunciation and the fence, chimney, and air conditioning equipment associated with 6331 Annunciation”),¹ will cause undue hardship on the parties and is harsh and impractical. In light of the fact that both parties have obstructions that may interfere with the servitude, and each could demand their removal, allowing them to remain produces only minimal incremental harm. We further recognize that the cost of removal of the obstructions and the resulting harm to the properties–particularly to 6331 Annunciation Street, whose obstructions include a chimney and air conditioning compressor–would be greatly disproportionate to the actual damage caused by the continued presence of those obstructions.

Based on the foregoing, we vacate that portion of the court of appeal's original judgment that ordered the parties to remove the obstructions on their respective properties within thirty days. In all other respects, the application for rehearing is denied and we affirm our November 25, 2025 per curiam opinion, as amended herein.

FOOTNOTES

1.   Hose v. O'Connell, 24-0493, p. 45 (La. App. 4 Cir. 5/8/25), 424 So. 3d 12, as modified on reh'g (Aug. 14, 2025), writ granted, decision vacated, 25-01158 (La. 11/25/25), 423 So. 3d 71.

Per Curiam.