Horrell v. Matthews, No. 2006 CA 1838 (La. App. 8/15/2007)
| Decision Date | 15 August 2007 |
| Docket Number | No. 2006 CA 1838.,2006 CA 1838. |
| Parties | WALTER J. HORRELL v. LISA C. MATTHEWS. |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE 22ND JUDICIAL DISTRICT COURT PARISH OF ST. TAMMANY, LOUISIANA DOCKET NO. 2006-10962, DIVISION "G" HONORABLE LARRY J. GREEN, JUDGE PRESIDING.
WALTER HORRELL Plaintiff-Appellant.
Covington, LA In Proper Person.
KATHLEEN D. LAMBERT Attorney for STEPHENSON, MATTHEWS, CHAVARRI & LAMBERT, L.L.C. Defendant-Appellee. New Orleans, LA Lisa C. Matthews.
BEFORE: PARRO, GUIDRY, and McCLENDON, JJ.
Walter J. Horrell appeals a judgment denying his motion for a preliminary injunction in this possessory action. We affirm the judgment and remand.
There is a long history behind the matter currently before this court. Edward A. Horrell, Sr. (Edward) died while domiciled in New Orleans in 1993, leaving a surviving spouse and five adult children, one of whom is the appellant in this case, Walter J. Horrell (Walter). Edward's widow opened a succession and petitioned for appointment as administratrix, believing he was intestate. However, Walter filed a separate petition to have his father's statutory will probated and to be appointed executor of his succession. The will transferred to Walter a disproportionately large portion of his father's estate, consisting of immovable property with the municipal address of 711 West 19th Street, Covington, Louisiana, where Walter and his wife live. Walter's mother and siblings claimed the will was invalid, due to Edward's lack of testamentary capacity when it was executed. The two lawsuits were consolidated, and after a hearing, the trial court in Orleans Parish denied the petition to nullify the will and the rule to remove Walter as executor. The appellate court concluded the trial court's judgment was manifestly erroneous, because the evidence clearly established that Edward was mentally incapable of executing a juridical act when the will was signed. It reversed the judgment, declared the will a nullity, and remanded for further proceedings. Succession of Horrell, 95-1598 (La. App. 4th Cir. 9/11/96), 680 So.2d 725, writ denied, 96-2841 (La. 1/31/97), 687 So.2d 403.
Upon remand, Walter petitioned to be appointed administrator of his father's intestate succession, which was opposed by his mother and siblings. The trial court denied his request, based on: (1) the finding that Walter, who is an attorney, had persuaded his hospitalized father to sign the will transferring the Covington property to him, when he knew his father could not understand the consequences of this juridical act; and (2) the extraordinary animosity existing among the heirs in this case. The judgment was affirmed on appeal. Succession of Horrell, 97-2115 (La. App. 4th Cir. 3/25/98), 709 So.2d 1069, writ denied, 98-1023 (La. 5/29/98), 720 So.2d 669. Lisa C. Matthews was eventually named provisional administratrix of the succession
On the same day that Edward signed the will that was later nullified for lack of testamentary capacity, he also signed an act of donation inter vivos, which was also presented to him by Walter, and in which he donated to Walter the same immovable property in Covington, Louisiana. However, before Edward died, he and his wife, acting as his agent, petitioned the Twenty-Second Judicial District Court (22nd JDC) to have the donation inter vivos revoked for lack of juridical capacity. After Edward's death and many legal maneuverings, the petition was eventually amended to name Matthews, in her capacity as provisional administratrix, as the plaintiff. Matthews filed a motion for summary judgment, alleging that Edward's mental incapacity to execute a juridical act had already been determined in the earlier suit contesting the will, and therefore, the nullity of the donation inter vivos was res judicata. The trial court granted the motion, and this court affirmed on rehearing. Horrell v. Horrell, 99-1093 (La. App. 1st Cir. 10/6/00), 808 So.2d 363 (on rehearing), writ denied, 01-2546 (La. 12/7/01), 803 So.2d 971.1
The current matter stems from Matthews' efforts to inventory and appraise movables formerly owned by Edward and purportedly located in or on the immovable property at 711 West 19th Street in Covington. After Walter had rebuffed many attempts to get access to the property, the trial court granted Matthews' motion to compel the inventory and appraisal, ordering Walter to make the entire premises available to the notary and appraisers who had been appointed to conduct the inventory. However, the inventory process was again thwarted by Walter and his wife.2 Therefore, Matthews filed a "Rule to Evict" in the 22nd JDC, which was set for hearing on March 9, 2006.
Two days before the eviction hearing, Walter filed the possessory action that is the subject of this suit3 and obtained a temporary restraining order (TRO) against Matthews and her agents, preventing them from going onto or into the property or evicting him and his wife from it. The TRO expired after 10 days, and Matthews filed an answer, a reconventional demand, and a third-party claim against Walter's wife, Edna, claiming the succession owned the Covington property and that Walter and Edna were precarious possessors, because their possession had been allowed by the decedent and, after his death, by the succession representative. A hearing was set for May 17, 2006, to consider Walter's motion for a preliminary injunction. Matthews opposed the motion on the grounds that an action seeking injunctive relief could not be used to block the court's authority to act in the pending succession proceeding and/or in the pending eviction suit. The trial court rendered a judgment on that basis, denying Walter's motion for injunctive relief and ordering him to file with the court handling the succession any claim he may have for reimbursement of expenses associated with his occupancy of the Covington property.4 Walter then moved for, and the court granted, a devolutive appeal from the judgment rendered in open court on May 17, 2006, denying his request for injunctive relief and ordering him to make his reimbursement claims in the succession proceeding.5
Louisiana Code of Civil Procedure article 3612(B) provides, in pertinent part, that "[a]ri appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction." The right of appeal granted by this article is not restricted to judgments which grant injunctive relief. Rather, a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. Country Club of Louisiana Property Owners Ass'n, Inc. v. Dornier, 96-0898 (La. App. 1st Cir. 2/14/97), 691 So.2d 142, 144 n.1. The question of whether the preliminary injunction should be granted or denied is addressed to the sound discretion of the trial court, and its decision will be disturbed on review only in cases where a clear abuse of its discretion has been shown. Lassalle v. Daniels, 96-0176 (La. App. 1st Cir. 5/10/96), 673 So.2d 704, 708, writ denied, 96-1463 (La. 9/20/96), 679 So.2d 435, cert. denied, 519 U.S. 1117, 117 S.Ct. 963, 136 L.Ed.2d 848 (1997).
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 LSA-C.C.P. art. 3601; State Machinery & Equip. Sales, Inc. v. Iberville Parish Council, 05-2240 (La. App. 1st Cir. 12/28/06), 952 So.2d 77, 81. A possessory action is one brought by the possessor of immovable property to be maintained in his possession of the property when he has been disturbed, or to be restored to the possession when he has been evicted. LSC.C.P. art. 3655. Injunctive relief to protect or restore possession of immovable property is available to a plaintiff in a possessory action, during the pendency thereof. LSA-C.C.P. art. 3663. Unlike most injunctive relief, Article 3663 requires no showing of irreparable harm by the plaintiff. Carbo v. City of Slidell, 01-0170 (La. App. 1st Cir. 1/8/03), 844 So.2d 1, 11, writ denied, 03-0392 (La. 4/25/03), 842 So.2d 400. Whether the injunction is sought under LSA-C.C.P. art. 3601 or LSA-C.C.P. art. 3663, however, the plaintiff cannot obtain a preliminary injunction without making a prima facie case that he will prevail on the merits. Ormond Country Club v. Dorvin Developments, Inc., 498 So.2d 144, 150 (La. App. 5th Cir. 1986), writ denied, 500 So.2d 423 (La. 1987).
Although an actual eviction is a disturbance in fact that gives rise to a possessory action, an eviction proceeding is a disturbance in law that asserts the right of ownership in an action or proceeding, which is an exception to the right to institute a possessory action. See LSA-C.C.P. art. 3659. Therefore an eviction proceeding is not a "disturbance" that will serve as a basis for a possessory action. Jackson v. Campco of Monroe, Inc., 623 So.2d 1380, 1383 (La. App. 2nd Cir. 1993). Nor may a precarious possessor—one whose exercise of possession is with the permission of or on behalf of the owner—bring the possessory action against the person for whom he possesses. See LSA-C.C. arts. 3437 and 3440; Hirschfeld v. St. Pierre, 577 So.2d 747, 750 (La. App. 1st Cir. 1991); Ormond Country Club, 498 So.2d at 151. In addition, since a co-owner cannot prevent other co-owners from making use of property owned in indivision, that co-owner's possession cannot divest other co-owners of their rights of use and ownership. See LSA-C.C. art. 802; see also Hart v. Weinstein, 98-1398 (La. App. 3rd Cir. 3/3/99), 737 So.2d 72, 74, writ denied, 99-0939 (La. 5/14/99), 745 So.2d 11; Succession of Miller, 95-1272 (La. App. 4th Cir. 5/8/96), 674 So.2d 441, 443-44, writ denied, 96-1717 (La. 10/4/96), 679 So.2d 1390.
Finally,...
To continue reading
Request your trial