Clark v. Clark

• Decision Date: 12 November 1979
• Docket Number: No. 7209,7209
• Citation: 377 So.2d 544
• Parties: Otis CLARK et al., Plaintiffs-Appellants, v. Wesley D. CLARK, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 544

377 So.2d 544

Otis CLARK et al., Plaintiffs-Appellants, v. Wesley D. CLARK, Defendant-Appellee.

No. 7209.

Court of Appeal of Louisiana, Third Circuit.

Nov. 12, 1979.

Young & Burson, M. Terrance Hoychick, Eunice, for plaintiffs-appellants.

Fusilier, Pucheu & Soileau, A. Gaynor Soileau, Ville Platte for defendant-appellee.

Before CULPEPPER, WATSON and GUIDRY, JJ.

GUIDRY, Judge.

Plaintiffs in the instant case seek to evict the defendant-lessee from certain premises situated in the Parish of Evangeline, Louisiana, on the ground that his right of occupancy, as lessee, has terminated. Plaintiffs allegedly own undivided interests in the land involved as heirs of the late William D. Clark. In furtherance of their desire to evict the defendant-lessee, plaintiffs caused written notice to vacate, pursuant to the provisions of LSA-C.C.P. Article 4701, to be delivered to defendant on December 26, 1978. When defendant failed to comply with the notice to vacate, plaintiffs instituted this summary proceeding, pursuant to the provisions of LSA-C.C.P. Article 4731 et seq. Following institution of this proceeding, defendant filed an exception of no right and no cause of action. Before a hearing was had on this exception, plaintiffs, with leave of court first obtained, filed and amended motion for rule to show cause. Thereafter the exceptions were heard and the trial court, without assigning reasons, sustained the exceptions and dismissed plaintiffs' suit. Plaintiffs appeal. We reverse.

Although members of the bar quite often employ the practice of asserting an exception of no right of action and an exception of no cause of action in a single pleading, the exceptions bear no relation one to the other and are designed to raise issues totally different. The exception of no right of action raises the question as to whether the plaintiff has a legal interest in the subject matter of the litigation, i. e., whether the plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit. Evidence is admissible upon trial of this exception, restricted however to a determination as to whether plaintiff does or does not fall within the general class having legal interest to sue upon the cause of action asserted. Wischer v. Madison Realty Co., 231 La. 704, 92 So.2d 589 (1956); Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir. 1967).

On the other hand the function of the exception of no cause of action is to raise the general issue as to whether any remedy is afforded by law to the plaintiff under the allegations of the petition. In Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975) we summarized the function and principles regarding consideration of such exception as follows:

"The peremptory exception of no cause of action C.C.P. art. 927 (4) questions whether the law affords any remedy to the plaintiff under the allegations of his petition. No evidence may be introduced to support or controvert an objection that the petition fails to state a cause of action. C.C.P. art. 931. American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970). The exception is triable solely on the face of the petition. All well pleaded facts in the petition and attached documents must be accepted as true and any doubts must be resolved in favor of the sufficiency of the pleading to state a cause of action. The exception must be overruled unless the allegations affirmatively establish that under no facts admissible under the allegations of the petition does plaintiff have a cause of action. See Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La. 1975); Watkins v. Louisiana High School Athletic Ass'n, 301 So.2d 695 (La.App. 3rd Cir. 1974)."

With these principles in mind we have reviewed the record in the case and find that the trial court erred in dismissing plaintiffs' suit. ¹

EXCEPTION OF NO RIGHT OF ACTION

One who pleads an exception of no right of action bears the burden of proving that the plaintiff is without interest in the cause sought to be asserted, Cattle Farms, Inc. v. Abercrombie, 146 So.2d 689 (La.App. 4th Cir. 1962), reversed on other grounds, 244 La. 969, 155 So.2d 426 (1963). Absent evidence to the contrary allegations of fact set forth in the pleadings must be taken as true on consideration of an exception of no right of action. In re Nunez, 203 La. 847, 14 So.2d 680 (1943); Brooks v. Bass, 184 So. 222 (La.App. 1938).

Plaintiffs in their motion, as amended, allege that as heirs of William D. Clark they are owners of undivided interests in the property occupied by defendant. They further allege that defendant's right of occupancy of the premises owned by them has ceased and in spite of written notice to vacate the premises, served on defendant pursuant to the provisions of LSA-C.C.P. Article 4701, he has failed to deliver the premises to them. Upon trial of the exception of no right of action defendant presented no evidence to controvert these allegations of fact.

An owner of immovable property, albeit an undivided interest owner, clearly has the right to invoke the provisions of LSA-C.C.P. Art. 4701 et seq. and 4731 et seq., and sue to evict a lessee, when the latter's right of occupancy has ceased.

The exception of no right of action filed by defendant is clearly without merit and should have been overruled.

EXCEPTION OF NO CAUSE OF ACTION

The facts set forth in plaintiffs' pleadings and attached documents, which must be accepted as true on consideration of the exception of no cause of action, are briefly and fairly summarized as follows:

(a) By written agreement dated August 24, 1969, William D. Clark, owner, leased the property in controversy to Wesley D. Clark, for a primary term beginning January 1, 1970 and ending December 31, 1972, the lessee being granted the option to renew such lease for lease periods of two years each following the primary term, provided lessee informed lessor, his heirs or assigns, in writing of his desire to renew thirty days prior to the expiration of any two year period, either in the primary term or option term, and provided further that the entire period of lease, including the primary term and the option term, shall not exceed twenty years.

(b) Subsequent to execution of the aforesaid lease agreement William D. Clark died and plaintiffs, as heirs of the decedent, acquired ownership interests in the subject land in indivision with the defendant and others.

(c) The predial lease referred to above expired on December 31, 1971 when the defendant failed to exercise his option to renew such lease by serving written notice on the lessor, heirs or assigns, of his intention to renew as required by the lease.

(d) Upon expiration of the written lease agreement defendant continued to possess the subject property however, on December 27, 1978, plaintiffs caused written notice to be served on defendant that his right as lessee on...