Opinion
2021 CA 1171
08-16-2022
Michael DUNBAR v. Wiltz HOWARD, III
Kim Segura Landry, Shawn R. Bush, Gonzales, Louisiana, Counsel for Appellant Defendant—Wiltz Howard, III Matthew I. Percy, Jamie I. Schutte, Gonzales, Louisiana, Counsel for Appellee Plaintiff—Michael Dunbar
Kim Segura Landry, Shawn R. Bush, Gonzales, Louisiana, Counsel for Appellant Defendant—Wiltz Howard, III
Matthew I. Percy, Jamie I. Schutte, Gonzales, Louisiana, Counsel for Appellee Plaintiff—Michael Dunbar
Before: McDonald, McClendon, Welch, Theriot, and Lanier, JJ.
WELCH, J.
In this possessory action, the defendant challenges the district court's judgment that overruled his peremptory exception raising the objection of no right of action and granted a preliminary injunction. For the following reasons, we reverse in part.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Michael Dunbar, filed a petition for possessory action against the defendant, Wiltz Howard, III, on March 12, 2021, regarding certain immovable property located in Geismar, Louisiana. Mr. Dunbar alleged that he entered into a credit sale, or alternatively, a bond for deed contract, with Mr. Howard on November 7, 2012. Mr. Dunbar claimed that he had possession of the property quietly and without interruption for more than one year. Mr. Dunbar further alleged that during his possession of the property, Mr. Howard filed a petition of eviction against him in the Justice of the Peace Court, 2nd Justice Court, for the Parish of Ascension. Mr. Dunbar averred that on November 25, 2020, the parish court rendered a judgment of eviction against him. Mr. Dunbar contended that while maintaining corporeal possession of the property, he performed repairs and improvements; modified the property; applied for zoning changes; paid property taxes; and paid for trash services, lawn, and building maintenance. Mr. Dunbar claimed that he was the possessor of the property and was entitled to maintain possession.
Howard v. Dunbar, Case No. E.1120.329.2, 2nd Justice Court, Justice of the Peace Court, Parish of Ascension, State of Louisiana.
Alternatively, Mr. Dunbar argued that he was a good faith possessor, that Mr. Howard had been unjustly enriched without cause, and that he was entitled to compensation for the value of the enrichment. Furthermore, Mr. Dunbar asserted that he was entitled to cure any default found in the credit sale and/or bond for deed contract and also that, if the bond for deed was terminated, he was entitled to the return of all moneys paid toward the purchase price.
On March 16, 2021, Mr. Dunbar filed a motion for preliminary injunction pursuant to La. C.C.P. art. 3663, seeking to enjoin Mr. Howard from taking any steps to disturb his possession of the property, terminating the credit sale/bond for deed contract, ejecting him from the premises, or taking any action to interfere with his use and possession of the property.
Prior to the scheduled hearing on Mr. Dunbar's motion for preliminary injunction in district court, the parties held a status conference on April 5, 2021, to discuss Mr. Dunbar's appeal of the eviction proceeding in parish court. The parties agreed to continue the hearing on Mr. Dunbar's appeal of the eviction proceeding in parish court to "prevent both parties from spending unnecessary time and money." The parties also agreed that the preliminary injunction hearing in district court would be set for May 4, 2021, and that neither party would "take any action regarding the physical possession of the property before both the parish and district court proceedings have been resolved."
Mr. Dunbar's appeal of the eviction proceeding had been set for hearing on April 20, 2021, in parish court.
On April 27, 2021, Mr. Howard filed a peremptory exception raising the objection of no right of action to Mr. Dunbar's filing of the possessory action and the motion for preliminary injunction, asserting that Mr. Dunbar possessed the property as a result of the authority granted to him by Mr. Howard. According to Mr. Howard, Mr. Dunbar was a precarious possessor and, as such, the possessory action was not available to him. Further, Mr. Howard contended that by filing the possessory action and request for injunctive relief, Mr. Dunbar was attempting to thwart the separate eviction proceeding in parish court and prevent it from moving forward. Mr. Dunbar opposed the exception.
Mr. Howard also filed a motion for sanctions, which the district court denied at the May 4, 2021 hearing. That ruling is not challenged in this appeal.
At the May 4, 2021 hearing, the district court first heard Mr. Howard's peremptory exception raising the objection of no right of action. Following argument, the district court overruled the objection of no right of action without reasons. The district court then considered Mr. Dunbar's request for a preliminary injunction.
Mr. Dunbar testified that he entered into a "lease purchase agreement" with Mr. Howard and started occupying the property on May 22, 2012. According to the "Lease and Purchase Agreement," the lease consisted of six five-year terms beginning on May 1, 2012, at the fixed rate of $600.00 per month. The lease further provided that after the six five-year terms (i.e., thirty years), ownership of the property would transfer from the landlord, identified as Mr. Howard, to the tenant, Mr. Dunbar, concluding the purchase agreement. Mr. Dunbar and Mr. Howard later verbally agreed that Mr. Dunbar pre-paid rent through February 2021, and agreed that the rent would be reduced to $400 per month.
The agreement also provided that the trash, building maintenance, and lawn care would be paid for by the landlord, Mr. Howard, and that it was the landlord's obligation to insure the building and pay the property taxes until the transfer was completed.
The record shows that the contract entered into by Mr. Dunbar and Mr. Howard was titled "Lease and Purchase Agreement." Mr. Dunbar alleged in his original petition that the contract was a credit sale, or alternatively, a bond for deed contract.
Mr. Dunbar testified that he was leasing the property and agreed he did not own it until all the payments were made. However, Mr. Dunbar maintained he had been possessing the property since he obtained the key for the building. Mr. Dunbar further testified that Mr. Howard represented to him that Mr. Howard owned and could sell the property at issue. Mr. Dunbar stated on cross-examination that "when me and Mr. Wiltz started the agreement, everything was still in his father's name. He assured me that he could sell it." Mr. Dunbar testified that Mr. Howard assured him that he owned the building located on the immovable property, and that his brother owned the house located next door.
Mr. Dunbar alleged that "a dispute began regarding ownership of the property at the time of the eviction." An affidavit attached to Mr. Dunbar's memorandum in opposition to Mr. Howard's exception of no right of action states that certain "inherited property" comprises part of the estate of Mr. Howard's father, whose succession has been opened. See In the Matter of the Succession of Wiltz Howard, Probate No. 12,545, 23rd Judicial District Court, Parish of Ascension, State of Louisiana. The affidavit further states that although an agreement had been reached as to the division of ownership of "the property," no judgment of possession had been rendered in favor of Mr. Howard or any other party. The affidavit, however, does not contain a legal description of any property comprising Mr. Howard's father's estate. It is not clear whether the "inherited property" discussed in the affidavit is the property leased by Mr. Dunbar from Mr. Howard. Further, the affidavit was not introduced into evidence at the May 4, 2021 hearing.
For purposes of this appeal, the record indicates that the immovable property at issue may constitute a part of the estate of Mr. Howard's father. It is also equally likely that the property is co-owned by the heirs of Mr. Howard's father. The ownership of the property and the validity of the "Lease and Purchase Agreement" are the issues to be decided in the underlying possessory action. To obtain a preliminary injunction, Mr. Dunbar must make a prima facie showing that he will prevail on the merits of the possessory action. See La. C.C.P. arts. 3601 and 3663 ; Horrell v. Matthews, 2006-1838 (La. App. 1st Cir. 8/15/07), 2007 WL 2318134, at *3 (unpublished).
Following the testimony of Mr. Dunbar and introduction of documentary evidence, the district court granted the preliminary injunction without reasons. The district court signed a judgment overruling Mr. Howard's exception of no right of action and granting Mr. Dunbar's motion for preliminary injunction on June 3, 2021. The district court ordered that a preliminary writ of injunction issue pursuant to La. C.C.P. art. 3663 to protect Mr. Dunbar's possession of the immovable property and to protect his right to possess the property "during the pendency of this proceeding." Additionally, the district court ordered that Mr. Dunbar, "at the direction of the Court, shall pay rent during the pendency of the possessory action, without prejudice to either party, which will not be used as ... evidence of a valid lease, as that determination is reserved for the possessory action itself."
Mr. Howard moved for a directed verdict after Mr. Dunbar's testimony, which the district court denied.
Mr. Howard appeals the June 3, 2021 judgment, asserting that the district court erred in: 1) overruling his exception of no right of action; 2) granting Mr. Dunbar's request for a preliminary injunction; and 3) failing to fix an amount and order Mr. Dunbar to furnish the security for the issuance of the preliminary injunction.
LAW AND DISCUSSION
Jurisdiction: Peremptory Exception Raising Objection of No Right of Action
Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the litigants do not raise the issue. West Baton Rouge Parish Council v. Tullier, 2018-1722 (La. App. 1st Cir. 1/11/21), 317 So.3d 782, 787, writ denied, 2021-00389 (La. 5/4/21), 315 So.3d 221. Our appellate jurisdiction extends to final judgments, which are those that determine the merits in whole or in part. See La. C.C.P. arts. 1841 and 2083.
The Louisiana Code of Civil Procedure defines three types of judgments: (1) an interlocutory judgment, which determines preliminary matters in the course of an action, but does not determine the merits (La. C.C.P. art. 1841 ); (2) a final judgment, which determines the merits of the case in whole or in part (La. C.C.P. art. 1841 ); and (3) a partial final judgment, which disposes of some, but not all, of the issues on the merits, and in some instances requires a designation of finality by the trial court for the purpose of an immediate appeal (La. C.C.P. art. 1915 ). Different rules govern the appealability of these three types of judgments ("A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814," whereas "[a]n interlocutory judgment is appealable only when expressly provided by law."). West Baton Rouge Parish Council, 317 So.3d at 787 and n.3.
The denial of a peremptory exception is an interlocutory judgment. La. C.C.P. art. 1841 ; Williams v. Genuine Parts Co., 2014-0857 (La. App. 1st Cir. 1/8/15), 2015 WL 127974, at *4 (unpublished). An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083(C). Although the correctness of an interlocutory judgment that is incorporated into a purported final judgment may be considered on appeal, an interlocutory judgment cannot, on its own, provide a basis for an appeal. See La. C.C.P. art. 2083(C) ; Jackson v. Ace American Insurance Company, 2017-1549, 2017-1550 (La. App. 1st Cir. 9/21/18), 2018 WL 4562134, at *6 (unpublished).
However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to review of the final judgment appealed. Young v. City of Plaquemine, 2004-2305 (La. App. 1st Cir. 11/4/05), 927 So.2d 408, 411.
The June 3, 2021 judgment overruling Mr. Howard's peremptory exception raising the objection of no right of action to Mr. Dunbar's petition for possessory action is an interlocutory judgment. See La. C.C.P. art. 1841 ; Bourg v. Safeway Ins. Co. of Louisiana, 2019-0270 (La. App. 1st Cir. 3/5/20), 300 So.3d 881, 887.
As discussed infra , although the June 3, 2021 judgment on the preliminary injunction is also an interlocutory judgment, a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. See La. C.C.P. art. 3612(B) ; Morris v. Trust Technologies, LLC , 2018-0831 (La. App. 1st Cir. 2/28/19), 274 So.3d 15, 19.
The proper procedural vehicle to contest an interlocutory judgment is by application for supervisory writs filed within thirty days of rendition of the interlocutory judgment. See La. C.C.P. art. 2201 ; Johnson v. C's Transportation Services, LLC, 2020-0338 (La. App. 1st Cir. 8/4/21), 2021 WL 3418693, at *1 (unpublished). We recognize that this Court has discretionary authority to convert an appeal from an interlocutory judgment to an application for supervisory writs. See Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39. The appellate courts of this state ordinarily convert an appeal to an application for supervisory writs only if the motion for appeal is filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules—Courts of Appeal. See Matter of Succession of Porche, 2016-0538 (La. App. 1st Cir. 2/17/17), 213 So.3d 401, 406 n.2. In the instant case, Mr. Howard filed his motion for devolutive appeal on June 16, 2021, within the thirty-day period for filing an application for supervisory writs.
However, in addition to its classification as an interlocutory judgment, the June 3, 2021 judgment is a partial judgment in that it does not adjudicate all of the issues on the merits. Besides the district court reserving the determination of whether a valid lease exists (yet to be decided in the possessory action), Mr. Dunbar has raised alternative claims, including a request for the return of all moneys paid. On that basis, we decline to convert the appeal to an application for supervisory writs. This Court has previously held that the Code of Civil Procedure does not provide for a partial peremptory exception raising the objection of no right of action. If a plaintiff has a right of action as to any one of the theories or demands for relief set out in his petition, the objection of no right of action should be overruled. See State, by and through Caldwell v. Astra Zeneca AB, 2016-1073 (La. App. 1st Cir. 4/11/18), 249 So.3d 38, 43 (en banc ), writs denied, 2018-00766 (La. 9/21/18), 252 So.3d 899 ; 2018-0758 (La. 9/21/18), 252 So.3d 904. Where the plaintiff pleads multiple theories of recovery based on a single occurrence or set of operative facts, the partial grant of an exception of no right of action, which attacks only one theory of recovery and which does not dismiss a party, would be invalid as an impermissible partial judgment. Id. To exercise our supervisory jurisdiction and convert the appeal to an application for supervisory writ and grant the exception of no right of action would result in an impermissible partial judgment. Accordingly, based upon our review and considering the particular facts of this case, appellate review of the interlocutory judgment overruling the peremptory exception raised by Mr. Howard is improper.
Preliminary Injunction
Mr. Howard appealed the grant of the preliminary injunction in favor of Mr. Dunbar. A preliminary injunction is an interlocutory procedural device designed to preserve the status quo between the parties, pending a determination on the merits of the controversy. Tobin v. Jindal, 2011-0838 (La. App. 1st Cir. 2/10/12), 91 So.3d 317, 320 ; Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 2004-0270, 2004-0249 (La. App. 1st Cir. 3/24/05), 906 So.2d 660, 664.
Although the judgment on the preliminary injunction is interlocutory, an appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction. La. C.C.P. art. 3612(B) ; Morris v. Trust Technologies, LLC, 2018-0831 (La. App. 1st Cir. 2/28/19), 274 So.3d 15, 19. We are, however, mindful that appellate review of a trial court's issuance of a preliminary injunction is limited. The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court and will not be disturbed on review unless a clear abuse of discretion has been shown. Id.
Louisiana Code of Civil Procedure article 3612 provides:
A. There shall be no appeal from an order relating to a temporary restraining order.
B. An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
C. An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.
D. Except as provided in this Article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.
Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury, loss, or damage if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. See La. C.C.P. art. 3601 ; Horrell v. Matthews, 2006-1838 (La. App. 1st Cir. 8/15/07), 2007 WL 2318134, at *3 (unpublished). However, injunctive relief is specifically provided to a plaintiff in a possessory action under La. C.C.P. art. 3663. Welch v. Planning & Zoning Commission of East Baton Rouge Parish, 2016-0253 (La. App. 1st Cir. 4/26/17), 220 So.3d 60, 65. Article 3663 provides, in pertinent part:
Louisiana Code of Civil Procedure article 3601(A) provides, in pertinent part: "An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law ...."
Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to:
(1) A plaintiff in a possessory action, during the pendency thereof; and
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment.
Unlike the requirement for most injunctive relief, La. C.C.P. art. 3663 requires no showing of irreparable harm by the plaintiff. Carbo v. City of Slidell, 2001-0170 (La. App. 1st Cir. 1/8/03), 844 So.2d 1, 11, writ denied, 2003-0392 (La. 4/25/03), 842 So.2d 400. Nevertheless, whether the injunction is sought under La. C.C.P. art. 3601 or La. C.C.P. art. 3663, a plaintiff must make a prima facie showing that he will prevail on the merits. Horrell, 2007 WL 2318134, at *3.
With respect to the merits of Mr. Dunbar's possessory action, the evidence revealed, including Mr. Dunbar's testimony, that he was possessing as a lessee pursuant to a "Lease and Purchase Agreement" with Mr. Howard. Mr. Dunbar testified he was not possessing the property as an owner. Thus, Mr. Dunbar is clearly a precarious possessor, who had an executory judgment of eviction rendered against him in parish court, although that judgment of eviction is currently on appeal.
Mr. Dunbar argues that if Mr. Howard did not have title to the property, he had no right to enter into the "Lease and Purchase Agreement." Mr. Dunbar, however, did not introduce any evidence at the hearing on his request for a preliminary injunction showing that Mr. Howard did not have title to the property. See also FN 6, supra. The record contains no evidence as to ownership of the property at issue. Mr. Dunbar has the burden to make a prima facie showing that he will prevail on the merits of his possessory action. See Horrell, 2007 WL 2318134, at *3.
Under ordinary circumstances, a lessor and lessee may not assert the possessory action against each other. Trinidad Petroleum Co. v. Pioneer Nat. Gas Co., 381 So.2d 808, 811 (La. 1980). "The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession." La. C.C. art. 3437. "A precarious possessor, such as a lessee or a depositary, is presumed to possess for another although he may intend to possess for himself." La. C.C. art. 3438. According to La. C.C. art. 3440, a possessory action is not available to a lessee against his lessor. Therefore, the rights and obligations as between a lessor and lessee are governed by the terms of the lease. Trinidad Petroleum Co., 381 So.2d at 811 ; see also Lorning v. Alden, 2001-1126 (La. App. 4th Cir. 2/13/02), 809 So.2d 526, 531, writ denied, 2002-1031 (La. 6/7/02), 818 So.2d 772.
The evidence presented shows that Mr. Dunbar was not possessing as an owner of the property. Mr. Dunbar has not made a prima facie showing that he will prevail on the merits of his possessory action. See La. C.C.P. art. 3663 ; Horrell, 2007 WL 2318134, at *3. Therefore, the district court should have denied his request for a preliminary injunction. Accordingly, we reverse the portion of the district court's judgment granting a preliminary injunction in favor of Mr. Dunbar.
We pretermit discussion of Mr. Howard's third assignment of error (arguing the district court failed to fix an amount and order Mr. Dunbar to furnish the security for the issuance of the preliminary injunction).
DECREE
We decline to review the portion of the June 3, 2021 judgment that overruled the peremptory exception raising the exception of no right of action that was filed by the defendant, Wiltz Howard, III. We reverse the portion of the June 3, 2021 judgment that granted a preliminary injunction in favor of the plaintiff, Michael Dunbar. Each party is to bear their own costs of this appeal.
REVERSED IN PART.
McClendon, J., dissents.
The only issue before us on appeal is the issuance of a preliminary injunction pursuant to LSA-C.C.P. art. 3663. Article 3663 provides that injunctive relief to protect possession of immovable property is available to a plaintiff in a possessory action, during the pendency thereof. In this matter, the possessory action is still pending, and the district court has not yet ruled on the merits. Further, ownership of the property is unclear, as acknowledged by the majority. Moreover, and of particular significance, the parties stipulated and agreed at a status conference before the district court, to refrain from taking any action regarding the physical possession of the property until the parish and district court proceedings were resolved. Given this specific factual scenario and said stipulations, I cannot say that the district court abused its discretion in granting Mr. Dunbar's request for a preliminary injunction. Accordingly, I respectfully dissent.