Opinion
No. 2013–CA–0183.
2013-07-31
The ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. Lawrence A. and Luann Schulz LANDRY.
Benjamin Richard Slater, III, Catherine Kieffer Johnson, Jeffrey T. Pastorek, Lemle & Kelleher, L.L.P., New Orleans, LA, for Plaintiff/Appellee. Lawrence A. Landry, Luann Schulz Landry, Chalmette, LA, Defendant/Appellant/In Proper Person.
Benjamin Richard Slater, III, Catherine Kieffer Johnson, Jeffrey T. Pastorek, Lemle & Kelleher, L.L.P., New Orleans, LA, for Plaintiff/Appellee. Lawrence A. Landry, Luann Schulz Landry, Chalmette, LA, Defendant/Appellant/In Proper Person.
(Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
Judge ROLAND L. BELSOME.
The defendants, Lawrence and Luann Landry, appeal the trial court's judgment denying their motion to keep a walkway. We convert the appeal to an application for supervisory writs and deny the writ.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since 1882, the Alabama Great Southern Railroad has utilized a right-of-way near the railroad track it built on the south shore of Lake Ponchartrain. In particular, the deed provides that the right-of-way is “one hundred feet from the center of the road bed on either side of the road to be constructed by said Company.” In 2002, the Landrys purchased property in the Little Woods area, which abuts the right-of-way belonging to the Railroad. The deed conveying the property noted that it was subject to the right-of-way in favor of the Railroad.
For a small tract of properties, there is an exception in the deed that provides only a forty-foot right-of-way on the lake side. In his deposition that was admitted into evidence, Solomon Woodward, a real-estate engineer, testified that the Landrys' camp was not among the properties with the forty-foot right-of-way. Conversely, Mr. Landry testified that it was common knowledge that the Railroad possessed a forty-foot right-of-way on either side of the tract.
Originally, the property contained a camp that stood over the waters of Lake Ponchartrain; however, in 2009, they constructed a new camp, which was located on land. After the new camp was constructed, the Railroad filed a petition for injunctive relief against the Landrys. It alleged that they placed trailers, equipment, and other items on the property, violating the Railroad's right-of-way. It further alleged that the defendants constructed a walkway which was partially within the right-of-way.
After a hearing, the trial court granted the Railroad's motion for a preliminary injunction. The court ordered the Landrys to remove the items infringing upon the right-of-way, including the walkway, within fourteen days. They were also ordered to refrain from any further interference with the Railroad's right-of-way. When the Landrys failed to comply with the court's order, the court granted the Railroad's motion for contempt. However, it withheld granting damages or other relief until August 13, 2012, at which time the Landrys were ordered to be in compliance with the preliminary injunction order.
On August 13, 2012, the Landrys filed a motion to keep their walkway, arguing that it had been in existence for almost one hundred years, and that removing the walkway would cause hardship on the elderly or disabled visiting their camp. After a hearing, the trial court denied the Landrys' motion and ordered them to remove the walkway within thirty days. This appeal followed.
DISCUSSION
As a preliminary matter, we note that the trial court's denial of Landrys motion to keep the walkway is an interlocutory judgment. SeeLa. C.C.P. art. 1841 (a judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment). An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083. The judgment denying the motion to keep walkway is an interlocutory judgment that is not expressly appealable by law. The proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ. SeeLa. C.C.P. art. 2201; see also Gieck v. Tenet Healthcare Corp., 07–1597 (La.App. 4 Cir. 1/23/08), 976 So.2d 767.La. Const. art. V, § 10(A) provides that a court of appeal has “supervisory jurisdiction over cases which arise within its circuit.” First National Bank of Picayune v. Pearl River Fabricators, Inc., 06–2195, p. 11 (La.11/16/07), 971 So.2d 302, 310.
Accordingly, in the interest of justice, and especially considering that this appeal was filed within the delays allowed for applying for supervisory writs, seeRule 4–3, Uniform Rules–Courts of Appeal, we convert the pending appeal to a writ application for review under our supervisory jurisdiction. See Kurz v. Milano, 2008–1090 (La.App. 4 Cir. 2/18/09), 6 So.3d 916;Lalla v. Calamar, N.V., 08–952 (La.App. 4 Cir. 2/11/09), 5 So.3d 927;Ganier v. Inglewood Homes, Inc., 06–642 (La.App. 4 Cir. 11/08/06), 944 So.2d 753.
After considering the record in the instant case, we find no error in the trial court's ruling. The Landrys' writ application is therefore denied.
WRIT DENIED BONIN, J., concurs with reasons.
BONIN, J., concurs with reasons.
I concur in the denial of the writ application. I write separately to emphasize that our action in this matter has no precedential, binding, or authoritative value. Because the judgment under review is an interlocutory judgment from which an appeal is not expressly provided for, it is not appealable. See Favrot v. Favrot, 10–0986, pp. 3–4 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1103. (The earlier judgment which issued a preliminary injunction mandating the removal of the walkway was an appealable judgment under La. C.C.P. arts. 2083 C and 3612 B; these unrepresented property owners, however, did not appeal the earlier judgment.) The critical difference between an appealable judgment and a non-appealable judgment is that under the first a dissatisfied litigant is entitled to invoke our appellate jurisdiction as a matter of right while review of the second is dependent upon us our exercising our supervisory jurisdiction, which is discretionary. See Livingston Downs Racing Assn., Inc. v. Louisiana State Racing Comm'n, 96–1215 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216. Here, the Landrys are not entitled as a matter of 955right to a review of the interlocutory judgment against them, but we have considered the matter as an application to invoke our supervisory jurisdiction. But, unlike as in Lalla v. Calamar, N.V., we have denied their application. Cf. Lalla v. Calamar, N.V., 08–0952 (La.App. 4 Cir. 2/11/09), 5 So.3d 927. And when denying a writ application any expression of our views about the correctness of the trial court's judgment is meaningless and not binding. See Bulot v. Intracoastal Tubular Services, Inc., 02–1035 (La.6/14/02), 817 So.2d 1149. Moreover, even the earlier judgment on the request for preliminary injunction which was rendered on April 17, 2012 is subject to modification or dissolution after the trial on the merits of the permanent injunction; thus, any surplus expression or dicta issued by us while denying the writ application does not control the trial court's decision at the trial for the permanent injunction.