Ciolino v. Castiglia

Decision Date28 February 1984
Docket NumberNos. 83,s. 83
Citation446 So.2d 1366
PartiesSam CIOLINO, et al. v. Jack CASTIGLIA. Jack CASTIGLIA v. Sam CIOLINO, et al. CA 0405, 83 CA 0406.
CourtCourt of Appeal of Louisiana — District of US

Allen B. Pierson, Jr., Ponchatoula, for Ciolino.

W. Hugh Sibley and Richard D. McShan, Greensburg, for Castiglia.

Before SHORTESS, LANIER and CRAIN, JJ.

LANIER, Judge.

This is an appeal from judgments overruling exceptions of lis pendens and res judicata filed by the appellants and granting a preliminary injunction against the appellants from interfering with or using a fifteen foot wide lane which is the subject of a possessory action filed by the appellee.

PROCEDURAL FACTS

On March 8, 1982, Sam Ciolino and Joe Spalitta (appellants) filed suit against Jack Castiglia (appellee) contending that they were owners of two tracts of immovable property in Tangipahoa Parish, Louisiana, located adjacent to and north of immovable property owned by Jack Castiglia, that Jack Castiglia erected a gate and did grading work on their property and that they were entitled to an injunction prohibiting Castiglia from using or trespassing on their property and declaring Castiglia had no right-of-passage or servitude to use the property. On April 21, 1982, Castiglia answered the petition and admitted erecting a gate and doing grading work in the area but asserted that it was not on the property of Ciolino and Spalitta. Castiglia further asserted that the work was done on property acquired by him by record title and/or by prescription, was owned by him and was used as a right-of-way to his other property. On May 28, 1982, Ciolino and Spalitta obtained a preliminary injunction prohibiting Castiglia from trespassing on or using their property. On September 23, 1982, Ciolino and Spalitta filed a contempt rule against Castiglia alleging that he violated the preliminary injunction by operating his tractor and bushhog on their property. On October 18, 1982, Ciolino and Spalitta filed an amended contempt rule contending that on October 4, 1982, they were having bulldozer work done on their property and that Castiglia threatened the bulldozer operator and made verbal threats toward them.

On October 19, 1982, Castiglia filed a possessory action against Ciolino and Spalitta (Castiglia v. Ciolino-Spalitta ) requesting recognition of his right to possess a six acre tract of land with a fifteen foot wide road running across the property for a distance of 1,162 feet. Castiglia prayed that a preliminary injunction issue prohibiting Ciolino and Spalitta from interfering with his possession of this property. Castiglia asserted that on October 4, 1982, Ciolino and Spalitta interfered with his peaceful passage over the roadway by tearing up the road and placing trees in the right-of-way. Castiglia also alleged that the suit filed by Ciolino and Spalitta against him (Ciolino-Spalitta v. Castiglia ) in March of 1982 was a disturbance in law of his possession. On October 29, 1982, Castiglia amended his petition by adding a $10,000 claim for damages.

Also on October 29, 1982, a hearing was held on the contempt rule in Ciolino-Spalitta v. Castiglia. After hearing the evidence, the district court took the matter under advisement. On November 17, 1982, an opinion was rendered that Castiglia was in contempt of court. Castiglia was ordered to pay a fine of $100 plus costs and serve two days in the parish jail, which penalty was suspended and Castiglia was placed on inactive probation on the condition that he refrain from any further contemptuous acts. This contempt judgment was read and signed on December 23, 1982.

On November 19, 1982, the district court conducted a hearing in Castiglia v. Ciolino-Spalitta on Castiglia's request for a preliminary injunction. Prior to taking evidence at this hearing, Ciolino and Spalitta in a single pleading filed a declinatory exception of lis pendens and peremptory exceptions of prescription and res judicata. 1 During the course of this hearing, the entire record of Ciolino-Spalitta v. Castiglia was filed in the record of the instant case. On January 18, 1983, the district court rendered reasons for judgment which referred the exception of prescription to the merits, overruled the exceptions of lis pendens and res judicata and granted the preliminary injunction against Ciolino and Spalitta for the following reasons:

A complete review of the evidence before the court at this stage of the proceeding convinces the Court that an injunction should issue in this matter. The questions about ownership of the land in question and/or the questions about the right to use the road in question are all valid and very complicated. No clear determination can be made without a trial on the merits. In the meantime plaintiff could very well suffer severe irrepairable (sic) damages if the injunction were denied. Plaintiff is enjoined in another proceeding from using the road.

This suspensive appeal was taken on February 9, 1983. La.C.C.P. art. 3612.

EXCEPTION OF LIS PENDENS

Appellants contend that the trial court committed error by overruling their exception of lis pendens.

The record reflects that in a single pleading the appellants filed a declinatory exception of lis pendens (La.C.C.P. art. 925 as defined in La.C.C.P. art. 531) with peremptory exceptions of res judicata (La.C.C.P. art. 927 ) and prescription (La.C.C.P. art. 927 ). Prior to August 30, 1983, 2 if a defendant filed a declinatory exception with a peremptory exception, he made a general appearance which waived the objections raised in the declinatory exception (except lack of jurisdiction over the subject matter), unless he was required by law to plead the exceptions together. La.C.C.P. arts. 7, 925 and 928; International Matex Tank Terminals v. System Fuels, Inc., 398 So.2d 1029 (La.1981); Brunet v. Evangeline Parish Board of Supervisors of Elections, 376 So.2d 633 (La.App. 3rd Cir.1979), writs denied, 377 So.2d 1240 (La.1979) and 380 So.2d 623 (La.1979); Polmer v. Spencer, 256 So.2d 766 (La.App. 1st Cir.1971), writ refused, 260 La. 1133, 258 So.2d 380 (La.1972); L'Enfant, Developments in the Law, 1980-1981: Louisiana Civil Procedure, 42 La.L.Rev. 676, 681 (1982). Our research fails to reveal any law which required that the declinatory exception of lis pendens be filed with the peremptory exception of res judicata or prescription. By filing the declinatory exception with the peremptory exceptions, the appellants have waived the declinatory exception. 3 Because the appellants have waived this exception, it cannot form a part of this appeal, and this portion of the appeal is dismissed.

EXCEPTION OF RES JUDICATA

The appellants contend that the trial court committed error by overruling their exception of res judicata.

An appeal may be taken from a final judgment or from an interlocutory judgment which may cause irreparable injury. La.C.C.P. art. 2083. A judgment overruling the peremptory exception of res judicata is interlocutory and is not appealable absent a showing of irreparable harm. Cheramie v. Vegas, 413 So.2d 1343 (La.App. 1st Cir.1982). Because the appellants have failed to allege or demonstrate irreparable injury, this portion of the appeal will be dismissed. La.C.C.P. art. 2162; Pavlo v. Pavlo, 396 So.2d 390 (La.App. 1st Cir.1981); Fontenot v. O'Brien, 302 So.2d 399 (La.App. 1st Cir.1974). 4

The ruling on the exception of res judicata cannot be contested as part of the appeal from the judgment on the preliminary injunction. Interlocutory judgments affecting exceptions which do not involve irreparable injury may only be raised with an appeal from a final judgment. Cf. Firemen's Pension and Relief Fund for City of Lake Charles v. Boyer, 420 So.2d 1323 (La.App. 3rd Cir.1982); Carville v. City of Plaquemine, 303 So.2d 289 (La.App. 1st Cir.1973). Although the preliminary injunction judgment is appealable (La.C.C.P. art. 3612), it is still an interlocutory judgment. Louisiana National Bank v. Hebert, 398 So.2d 632 (La.App. 4th Cir.1981); Southwest Sales and Manufacturing Company, Inc., v. Delta Express, Inc., 342 So.2d 281 (La.App. 3rd Cir.1977), writ denied, 345 So.2d 48 (La.1977). Further, La.C.C.P. art. 3612 does not authorize appellate review of interlocutory judgments affecting exceptions with an appeal from a judgment on a preliminary injunction.

PRELIMINARY INJUNCTION

The appellants assert that the trial court committed error by granting Castiglia a preliminary injunction prohibiting them from using the fifteen foot wide lane.

The principal argument supporting this assignment of error is that the trial judge was clearly wrong in determining that Castiglia had proven irreparable injury, loss, or damage would result unless the preliminary injunction were issued as required by La.C.C.P. art. 3601. This argument cannot prevail because the preliminary injunction is being sought as an ancillary remedy to a possessory action and is controlled by La.C.C.P. art. 3663 and not by La.C.C.P. art. 3601. The purpose of a preliminary injunction which is ancillary to a possessory action is to preserve the status quo during the pendency of the action. Meche v. Graham, 421 So.2d 461 (La.App. 3rd Cir.1982). An action for injunctive relief brought under the provisions of La.C.C.P. art. 3663 requires no showing of irreparable injury, loss, or damage. Louisiana Power & Light Company v. Holmes, 422 So.2d 684 (La.App. 3rd Cir.1982), writ denied, 425 So.2d 774 (La.1983); Red River v. Noles, 406 So.2d 294 (La.App. 3rd Cir.1981); Ryan v. Pekinto, 387 So.2d 1325 (La.App. 1st Cir.1980), writ denied, 394 So.2d 615 (La.1980); A. Yiannopoulos, Property § 229 in 2 Louisiana Civil Law Treatise, 610-616 (2d ed. 1980).

Even though Castiglia need not prove irreparable injury, loss, or damage as required by Article 3601, he must still show that he is entitled to the relief sought and must make a prima facie showing that he will prevail on the merits of his possessory action. Cf. General Motors...

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