Powell v. Dorris

• Decision Date: 05 April 2002
• Docket Number: No. 35,510-CA.,35,510-CA.
• Citation: 814 So.2d 763
• Parties: Harold Fred POWELL, Jr., Plaintiff-Appellant, v. Margie Forrest DORRIS and International Paper Company, Defendant-Appellants.
• Court: Court of Appeal of Louisiana — District of US

814 So.2d 763

Harold Fred POWELL, Jr., Plaintiff-Appellant, v. Margie Forrest DORRIS and International Paper Company, Defendant-Appellants.

No. 35,510-CA.

Court of Appeal of Louisiana, Second Circuit.

April 5, 2002.

John M. McDonald, Shreveport, for Appellant.

Herschel E. Richard, Jr., John T. Kalmbach, Shreveport, for Appellee, International Paper Co.

Margie Forrest Dorris, J. Philip Goode, In Proper Person, for Margie Forrest Dorris.

Before BROWN, GASKINS, CARAWAY, PEATROSS and DREW, JJ.

DREW, J.

Plaintiff Harold Powell, Jr. appeals from a judgment dismissing all of his claims against International Paper Company ("IP") upon Powell's failure to amend his petition to state a cause of action against IP after the trial court sustained IP's exception of no cause of action. For the following reasons, we reverse and remand.

FACTS

On March 31, 1995, Powell entered into the following agreement with Ms. Margie Forrest Dorris:

RE: Legal Description 3/4 of NE of NE, Less 4A sold to Barbara Ann Mills, Desc. in BK 480, Pg 8; Less 1AC to Tim & Brenda Mills, Desc. in Bk. 642, Pg 50 1/2 of W 1/2 of NE; NW of SE-9-15-10 LESS 5 Acres owner to keep Ms. Dorris,

I will pay $40,000.00 for the above described property. In addition, I will pay $1,000.00 down. Buyer will reserve all mineral rights. Owner to finance remaining balance, provide road right-ofway to property, plus buyer and seller to half all survey and legal fees.

(Strikeout in original and initialed by both parties.)

Ms. Dorris signed her name on a blank beneath the sentence "I accept the above offer." The agreement was notarized, although no witnesses signed the agreement. Stamps from the Bienville Parish Clerk of Court show that the Clerk filed the agreement in the conveyance and mortgage records on April 7, 1995.

Thereafter, Ms. Dorris refused to convey the property to Powell. Ms. Dorris returned to Powell the $1,000 down-payment he had tendered. On June 14, 1995, Powell filed suit in Caddo District Court against Ms. Dorris seeking specific performance of their agreement concerning the property. Ms. Dorris answered the lawsuit urging that the agreement was unenforceable because, inter alia, the property description was inadequate. In April of 1996, Powell filed a motion for summary judgment, but the court denied the motion on the grounds that genuine issues of material fact remained unresolved. That lawsuit is still pending.

In July, 1995, IP submitted a bid to Ms. Dorris in the amount of approximately $38,0000 for the timber that stood at least partly on the subject property. On December 8, 1997, IP contracted with Ms. Dorris for the purchase of the timber partly on the subject tract for $78,004. The property description in the timber deed read:

105 A/

W3/4 of NE of NE, less 4A sold to Barbara Ann Mills; less 1 Ac. to Tim and Brenda Mills, desc. in Bk. 642, Pg. 50

E 1/2 of W 1/2 of NE; NW of SE-9-15-10.

4A/

A parcel of land in NE of NE-9-15-10, desc. as beg. at the NE cor. of SE of SE-4-15-10, and run S 1 deg. 35 mins. 14 Sec. E 1320 Ft., and N 88 Degs. 41 Mins. 46 Sec. W 600.76 Ft. for Pt. of beg. of Lot herein desc., then S 15 Degs. 11 .Mins. 22 Sec. W, 423.50 Ft., then N 88 Degs. 51 Mins. 46 Sec. W 424.12 Ft., then N 15 Degs. 11 Mins. 22 Sec. E. 423.60 Ft. then S 88 Degs. 51 Mins. 46 Sec. E. 424.12 Ft., Cont. 4A.

4-1/2 A/

S 6a of SE of SE-4-15-10, less 1-1/2 A beg. at a pt. 315 Yds. W of SE cor. of SE of SE, and from said pt. of beg., run W 105 Yds., N 70 Yds., E 105 Yds., S 70 Yds. to beg.

On April 20, 2000, Powell filed a second lawsuit in Caddo District Court against Ms. Dorris. In addition, Powell sued IP. Powell alleged that in late June, 1999, IP cleared the timber on the property covered by his contract with Ms. Dorris and that IP failed to discover this recorded contract. Powell sought, in addition to actual damages, treble damages and attorney fees under the tree piracy statute, La. R.S. 3:4278.1.

On June 5, 2000, IP filed exceptions of no right of action, no cause of action and prematurity, and Ms. Dorris subsequently filed these same exceptions herself. On June 30, 2000, the trial court sustained the exceptions of no right of action and no cause of action as to both defendants with respect to Powell's claims under La. R.S. 3:4278.1 and allowed Powell ten days to amend his petition. On July 10, 2000, Powell filed an amended petition deleting references to La. R.S. 3:4278.1 but still seeking damages for the loss of the timber, trespass, timber damage, diminution in land value and reconditioning the land.

On August 11, 2000, IP filed an answer to Powell's lawsuit and a cross-claim against Ms. Dorris seeking indemnity. On September 18, 2000, on IP's motion, the district court consolidated Powell's lawsuits.

On December 7, 2000, IP filed second exceptions of no cause of action and no right of action. IP again alleged that Powell was neither the owner nor the legal possessor of the property and thus could not recover trespass damages against IP. On March 1, 2001, the trial court signed a judgment sustaining the exception of no cause of action and allowing Powell 15 days to amend his petition to state a cause of action. Powell did not file an amended petition, and accordingly, on April 19, 2001, the court signed a judgment dismissing with prejudice all of Powell's claims against IP. The court certified this judgment as suitable for immediate appeal under La. C.C.P. art. 1915, and Powell now appeals.

DISCUSSION

Powell argues on this appeal that the trial court erred first in dismissing his tree piracy claims against IP, and then, after he amended his petition, in dismissing all of his claims against IP. Because the trial court's April 19, 2001 judgment dismissed IP as a party to Powell's action, the judgment was suitable for immediate appeal under La. C.C.P. art. 1915(A) without certification under Section (B) of that same article. We observe that Powell did not contemporaneously seek review of the trial court's June 30, 2000 judgment dismissing his claims under La. R.S. 3:4278.1, but we consider that to be of no importance.

That judgment at most dismissed one of Powell's theories of recovery and as such was not immediately appealable without certification under La. C.C.P. art. 1915(B). Because the judgment was not so certified and remained interlocutory, Powell is now entitled to review of this judgment.

Powell's tree piracy claim was dismissed on exceptions of no right of action and no cause of action. At this point and for subsequent discussion, we believe it is important to examine the distinction between these two exceptions. In Alexander & Alexander, Inc. v. State Division of Administration, 486 So.2d 95 (La.1986), fn. 2. the supreme court explained:

The exception of no cause of action is, of course, to be distinguished from the exception of no right of action. In Roy O. Martin Lumber Co. v. St. Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954), this Court distinguished the two exceptions as follows:

"Generally speaking, an exception of no right of action serves to question the right of a plaintiff to maintain this suit, i.e., ... his interest in the subject matter of the proceeding, whereas an exception of no cause of action addresses itself to the sufficiency in law of the petition and the exhibits attached thereto. Outdoor Electric Advertising v. Saurage, 207 La. 344, 21 So.2d 375; Termini v. McCormick, 208 La. 221, 23 So.2d 52 and Bartholomew v. Impastato, La.App., 12 So.2d 700. The latter is triable entirely on the face of the papers, while evidence may be received under an exception of no right of action for the purpose of showing that plaintiff does not possess the right he claims or that the right does not exist. Soniat v. White, 153 La. 424, 96 So. 19; Schmidt v. Conservative Homestead Association, 181 La. 369, 159 So. 587; Duplain v. Wiltz, supra (La.App., 174 So. 652) and La Casse v. New Orleans, T. & M.R. Co., 135 La. 129, 62[64] So. 1012." See also Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874 (La. 1974); Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); L'Enfant, Civil Procedure, 31 La.L.Rev. 343 (1970-71); McMahon, Civil Procedure, 15 La.L.Rev. 376 (1957-58); McMahon, Civil Procedure, 18 La.L.Rev. 103 (1954-55).

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885.

The exception of no right of action is grounded in La. C.C.P. art. 681, which states:

Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.

Where doubt exists regarding the appropriateness of an objection of no right of action, it is to be resolved in favor of the plaintiffs. Teachers' Retiremen System of Louisiana v. Louisiana State Employees' Retirement System, 456 So.2d 594 (La. 1984).

La. R.S. 3:4278.1 provides, in relevant part:

A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement. The statute prohibiting the cutting of trees without consent and authorizing treble damages is punitive in nature and must be strictly construed. Sullivan v. Wallace, 33,387 (La.App.2d Cir.8/23/00), 766 So.2d 654, writ denied, 00-2647 (La.11/17/00), 774 So.2d 978.

Powell's first petition clearly stated a cause of action for tree piracy. He alleged that IP, without permission, entered upon the tract in question and cut the timber thereon. However,...