PAUL A. BONIN

Stuart H. Smith, Michael L. Martin, Smith Stag, L.L.C., Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., James Anthony Babst, Wegmann & Babst, LLC, New Orleans, LA, for Plaintiff/Appellee. Jennifer Cooper Thomas, Gerald A. Melchiode, Benjamin R. Grau, Jeffery B. Struckhoff, Galloway Johnson Tompkins Burr 7 Smith, APLC, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

Peterson M. Yokum complains that Pat O'Brien's Bar, Inc., violates applicable municipal noise ordinances and similar state statutes by playing excessively loud music, which prevents Mr. Yokum from comfortably enjoying his property. The trial court issued a preliminary injunction against Pat O'Brien's, which simply enjoined and prohibited Pat O'Brien's from any violation of the specified ordinance and statutes. The trial court also set security for the issuance of the preliminary injunction at $5,000, which Mr. Yokum posted.

Pat O'Brien's devolutively appeals the issuance of the preliminary injunction. SeeLa. C.C.P. art. 3612 B. The company argues that because Mr. Yokum failed to establish any irreparable harm, he is not entitled to a preliminary injunction. Pat O'Brien's also argues that the trial court abused its discretion in refusing to admit the proposed testimony of its expert witness at the hearing on the request for preliminary injunction and that the trial court abused its discretion in setting the amount of security required for the preliminary injunction's issuance.

Because a showing of irreparable harm need not be made in instances dealing with preliminary injunctions in which the plaintiff seeks to enjoin conduct which violates a prohibitory law, as here, we reject that argument of Pat O'Brien's. And because we do not find that the trial court has abused its discretion, we affirm the ruling of the trial court. With respect to Pat O'Brien's argument that the trial court abused its discretion in refusing the live testimony of its expert, we conclude that because Pat O'Brien's did not proffer the excluded testimony for our review, it cannot establish an abuse of the trial court's discretion in that evidentiary matter. In considering the purpose of the requirement of furnishing security for the issuance of the preliminary injunction, we are not persuaded that the trial court abused its discretion in setting bond at $5,000. Finally, we conclude that the trial court did not abuse its discretion in determining that Mr. Yokum had—on the basis of his expert's affidavits—made a prima facie showing that he would prevail at the trial on the merits of the permanent injunction. We, accordingly, affirm the trial court. We explain in greater detail the various aspects of our decision in the parts which follow.

I

In this Part, we discuss the factual and procedural history of the case.

Mr. Yokum lives half a block away from Bourbon Street, and his rear balcony overlooks the two courtyards of two world famous entertainment venues, The Court of Two Sisters and Pat O'Brien's. The Court of Two Sisters' courtyard is between Mr. Yokum's balcony and Pat O'Brien's courtyard. The upper floors of Mr. Yokum's property have been continually used as a residence since the 1790's. His family has occupied the residence since the 1920's, and Mr. Yokum himself has resided there since 1966. Pat O'Brien's began its operations approximately in 1933.

Mr. Yokum filed his petition on November 9, 2004, alleging that Pat O'Brien's has prevented him from comfortably enjoying his residence. The following day he amended his petition to add the other listed plaintiffs in the suit.

On March 18–19, 2011, the St. Patrick's Day weekend, while standing on his second-floor balcony overlooking Pat O'Brien's, Mr. Yokum's expert took sound measurements of the noises coming from the bar. These measurements were the plaintiffs' evidence at the preliminary injunction hearing that Pat O'Brien's violatedNew Orleans City Code, § 66–202,La. R.S. 26:90 A(14)(a), and La. R.S. 26:286A(14)(a).

The motion for preliminary injunction was not heard until November 10, 2011, on account of various reasons not attributable exclusively to either side in this controversy. At the hearing, Pat O'Brien's contended that is was already in compliance with the law and that the injunction would unfairly shift the burden of proof onto it instead of the plaintiffs in the event the plaintiffs allege that Pat O'Brien's has violated the injunction and move for contempt. Pat O'Brien's also contended that the shift in the burden of proof requires it to incur costly expert fees necessary to measure its sound output on a daily or weekly basis.

Pat O'Brien's contends that the legally permissive sound limitations only restrict the volume of recorded or live music, not the sound level of the bar's patrons. Further, Pat O'Brien's contends that the plaintiffs' sound measurement includes noises from other bars on Bourbon Street, which were playing excessively loud music. Without isolating the sounds coming from Pat O'Brien's speaker system, Pat O'Brien's contends that the plaintiffs' measurements include extraneous sounds, which may push the measurement over the permissible limit even without the bar violating the ordinances or statutes. Pat O'Brien's admits that it is possible to isolate the source of sounds and to measure the isolated sound level but contends that Mr. Yokum cannot prove that his measurements were isolated because his expert did not preserve any recordings of his measurements. Without the sound recordings as evidence of what his expert is measuring,Pat O'Brien's alleges that Mr. Yokum asks the court to rely on unscientific testimony of his expert.

Pat O'Brien's also argued that it would be impossible for the plaintiffs to prove that it did not comply with the noise ordinances and statutes unless they incur an exorbitant fee to have an expert isolate its music from all other noises in the area.

The costliness of the expert is the basis for Pat O'Brien's challenging the sufficiency of the bond. Pat O'Brien's contends that it will incur more than $5,000, the bond amount, in paying an expert to take sound measurements and that it is necessary to have an expert's measurements when the plaintiffs allege that Pat O'Brien's has violated the terms of the injunction.

The trial court granted the plaintiffs a preliminary injunction against Pat O'Brien's, requiring that the bar simply not violate the law during the pendency of the lawsuit.

II

In this Part, we explain our standard of review and the plaintiffs' burden of proof at the hearing.

“A trial court has broad discretion in the granting or denial of a preliminary injunction, and will not be disturbed on review absent clear abuse of that discretion.” Cajun Elec. Power Co-op., Inc. v. Triton Coal Co., 91–1816, 590 So.2d 813, 816 (La.App. 4th Cir.1991); Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 493 (La.1979). That broad standard is, of course, based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion. See South East Auto Dealers Rental Ass'n, Inc. v. EZ Rent To Own, Inc., 07–0599, pp. 4–5 (La.App. 4 Cir. 2/27/08), 980 So.2d 89, 93.

In order for a plaintiff to meet his burden of proof at a hearing on a preliminary injunction, he must make a prima facie showing that he will prevail at the trial on the permanent injunction. SeeLa. C.C.P. art. 3601; Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03–2220, p. 9 (La.4/14/04), 875 So.2d 22, 29. The standard of proof to obtain a preliminary injunction on a prima facie showing is, however, “less than that required for a permanent injunction.” Historic Restoration, Inc. v. RSUI Indem. Co., 06–1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208.

Thus, the ultimate question for us is whether the trial court abused its discretion in finding that Mr. Yokum made a prima facie showing that he would prevail on a permanent injunction. We, therefore, review the district court's ruling for an abuse of discretion in finding that the plaintiffs have met their not-very-high burden of proof of making a prima facie showing that they are entitled to the relief afforded by a preliminary injunction enjoining the violation of prohibitory laws.

III

In this Part, we explain why Pat O'Brien's argument that the plaintiffs have not made a showing of irreparable harm, while perhaps true, misses the mark. The substance and content of the preliminary injunction under review provide an exception to the ordinary rule that proof of irreparable harm is a requirement for obtaining a preliminary injunction.

Typically, a plaintiff must make a showing that he will suffer irreparable harm before a court issues a preliminary injunction. SeeLa. C.C.P. art. 3601. The Supreme Court, however, in Jurisich v. Jenkins, 99–0076, p. 4 (La.10/19/99), 749 So.2d 597, 599, established an exception to the irreparable harm requirement for instances when the plaintiff seeks a prohibitory injunction and that prohibitory injunction seeks only to order compliance with a prohibitory law:

A petitioner is entitled to injunctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right. South Cent. Bell Tel. Co. v. Louisiana Pub. Serv. Comm'n, 555 So.2d 1370 (La.1990). Once a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists.
The jurisprudential rule requires three findings by the court before a plaintiff can circumvent the irreparable harm requirement: first, that the conduct violates a prohibitory law (ordinance or statute) or the constitution; second, that the injunction seeks to restrain conduct, not order it; and third, that the plaintiff has met the low burden of making a prima facie showing that he is entitled to the relief sought.

Plaintiffs are entitled to this exception to the irreparable harm requirement when the injunction sought is prohibitory, not mandatory. A mandatory injunction “commands the doing of some action” and “cannot be issued without a hearing on the merits.” Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04–0270, p. 7 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664. A prohibitory injunction is one that seeks to restrain conduct. See Jurisich, 99–0076, p. 4, 749 So.2d at 599. The injunction the plaintiffs seek against Pat O'Brien's is an order to restrain conduct, the playing of illegally excessively loud music. Because the injunction orders Pat O'Brien's to refrain from violating a prohibitory law, Mr. Yokum is relieved of proving irreparable harm. The fact that Pat O'Brien's now takes it upon itself to begin measuring its sound output in anticipation of future litigation does not convert the prohibitory injunction into a mandatory injunction. The injunction orders Pat O'Brien's not to violate the ordinances and statutes by refraining from playing loud music which exceeds the legally permissible limits.

IV

Pat O'Brien's next assignment of error is the district court's failure to allow live testimony at the preliminary injunction hearing. In response to having received an affidavit from the plaintiffs' expert the morning of the hearing, Pat O'Brien's moved to allow its expert to testify regarding the plaintiffs' new evidence. The district court denied the motion.

“When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.” La. C.C.P. art. 1636 A. The purpose of requiring a proffer is to preserve the excluded evidence so that it is available in the record for appellate review. See Cusimano v. Port Esplanade Condominium Ass'n, Inc., 10–0477, p. 6 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 935.

Because Pat O'Brien's did not proffer the testimony its expert witness would have given, the testimony of Pat O'Brien's expert is not in the record on appeal. As an appellate court, this court's review is limited to the evidence presented in the record. SeeLa. C.C.P. art. 2164. Without proffered evidence in the record of Pat O'Brien's expert testimony, we are unable to review the expert's testimony. And without the ability to review the expert's testimony, we cannot find that the district court abused its discretion by excluding it.

V

In this Part we will discuss Pat O'Brien's assertion that the evidence presented against it is stale.

The sound testing relied upon by the plaintiffs had been obtained nine months prior to the hearing. Pat O'Brien's, therefore, challenges the appropriateness of a preliminary injunction, the purpose of which is to preserve the status quo between the parties, when no threat of change to the status quo has been alleged.

Determining the appropriateness of evidence is the province of the trial court, and such a determination will not be overturned absent an abuse of discretion. Duncan v. Bartholomew, 11–0855, p. 19 (La.App. 4 Cir. 3/14/12), 88 So.3d 698, 712,citing Munch v. Backer, 10–1544, p. 3 (La.App. 4 Cir. 3/23/11), 63 So.3d 181, 185.

At the hearing, the plaintiffs were required only to make a prima facie showing that were entitled to relief. In the exercise of its fact-finding function, the trial court concluded that notwithstanding the countervailing evidence offered by Pat O'Brien's which questioned the reliability of Mr. Yokum's expert's findings and opinions, Pat O'Brien's had violated the ordinance and statutes in the not-so-distant past and might well repeat such conduct while the suit was pending. Such fact-finding on the trial court's part is not clearly wrong and supports its discretionary exercise to issue the prohibitory injunction.

VI

Here, we treat Pat O'Brien's final assignment of error which is that the $5,000 bond amount is insufficient. This assignment of error, too, is without merit.

Pat O'Brien's contends that the bond amount is far below the amount it will incur in expert fees necessary to review the plaintiffs' expert's findings and to regularly take its own sound measurements. Pat O'Brien's alleges that it is necessary to pay an expert to take sound measurements and to analyze those measurements because Mr. Yokum will inevitably come forward with a contempt charge, asserting that Pat O'Brien's has failed to comply with the preliminary injunction. And, Pat O'Brien's contends, it will need an expert's report to meet its burden of proving that it has not violated the injunction. Pat O'Brien's alleges that the bond amount should also include court costs and attorney fees.

The purpose of furnishing security for the issuance of a preliminary injunction is to “indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained.” La. C.C.P. art. 3610.

We do not consider that any expense on the part of Pat O'Brien's to test its own sound level is a consequence of the issuance, wrongful or not, of this preliminary injunction. Positive law mandates not only the permissible sound level but also how that sound level is to be ascertained. Monitoring of its sound output cannot be viewed as an additional expense merely because the business has failed to do so until the injunction issued against it. Importantly, the trial court by the preliminary injunction which issued did not command, compel, or require Pat O'Brien's to conduct such testing.

Pat O'Brien's second contention regarding the amount of the bond is that the bond should include court costs and attorney fees. While La. C.C.P. art. 3608 allows the court to award attorney fees as an element of damages, that decision, too, is left to the discretion of the court and is only awarded after the court finds that the preliminary injunction was improperly issued.

But, in any event, Pat O'Brien's did not submit any affidavit-evidence to the trial court that its earnings or desirability as an entertainment destination would likely be diminished if the preliminary injunction had been wrongfully issued. Its claims about costs and expenses associated with the defense of a contempt proceeding are speculative.

Our standard of review requires us to look only for an abuse of discretion. And we find that the trial court did not abuse its discretion in setting the bond amount at $5,000.

DECREE

For the foregoing reasons, the judgment of the trial court issuing a preliminary injunction at the request of Peterson Yokum against Pat O'Brien's Bar, Inc., conditioned upon giving security in the amount of $5,000, is hereby affirmed.

AFFIRMED

+-------------------+ ¦¦Sound Level Limit ¦ +-------------------+

+-----------------------------------------------------------------------------+ ¦Receiving Land Use Category ¦Time ¦L10¦Lmax¦ +-------------------------------------------------+------------------+---+----¦ ¦dBA ¦dBA ¦ ¦ ¦ +-------------------------------------------------+------------------+---+----¦ ¦Resident, public space ¦7:00 a.m.–10:00 ¦60 ¦70 ¦ ¦ ¦p.m. ¦ ¦ ¦ +-------------------------------------------------+------------------+---+----¦ ¦10:00 p.m.–7:00 a.m. ¦55 ¦60 ¦ ¦ +-------------------------------------------------+------------------+---+----¦ ¦Two-family or multiple-family dwelling (intra ¦7:00 a.m.–10:00 ¦50 ¦60 ¦ ¦dwelling) ¦p.m. ¦ ¦ ¦ +-------------------------------------------------+------------------+---+----¦ ¦10:00 p.m.–7:00 a.m. ¦45 ¦55 ¦ ¦ +-------------------------------------------------+------------------+---+----¦ ¦Business and commercial ¦7:00 a.m.–10:00 ¦65 ¦75 ¦ ¦ ¦p.m. ¦ ¦ ¦ +-------------------------------------------------+------------------+---+----¦ ¦10:00 p.m.–7:00 a.m. ¦60 ¦65 ¦ ¦ +-------------------------------------------------+------------------+---+----¦ ¦Industrial ¦At all times ¦75 ¦85 ¦ +-----------------------------------------------------------------------------+

+-----------------------------------------------------------------------------+ ¦SHD/ ¦At all ¦10 decibels above the ambient noise level; or 60 decibels, ¦ ¦VCE ¦times ¦whichever is higher. ¦ +-----------------------------------------------------------------------------+

+-------------------------------------------------+ ¦SHD/VCR ¦7:00 a.m.–10:00 p.m.¦*75¦*80¦ +--------------------+--------------------+---+---¦ ¦10:00 p.m.–7:00 a.m.¦*55 ¦*60¦ ¦ +--------------------+--------------------+---+---¦ ¦SHD/VCC ¦7:00 a.m.–10:00 p.m.¦*75¦*80¦ +--------------------+--------------------+---+---¦ ¦10:00 p.m.–7:00 a.m.¦*60 ¦*65¦ ¦ +--------------------+--------------------+---+---¦ ¦SHD/HMR ¦7:00 a.m.–10:00 p.m.¦60 ¦70 ¦ +--------------------+--------------------+---+---¦ ¦10:00 p.m.–7:00 a.m.¦55 ¦60 ¦ ¦ +--------------------+--------------------+---+---¦ ¦SHD/HMC ¦7:00 a.m.–10:00 p.m.¦65 ¦75 ¦ +--------------------+--------------------+---+---¦ ¦10:00 p.m.–7:00 a.m.¦60 ¦65 ¦ ¦ +-------------------------------------------------+

+---------------------------------------+ ¦* Adjusted for other, intrusive sounds.¦ +---------------------------------------+