Walter J. Horrell VS Lisa C. Matthews
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NOT DESIGNATED fOR PUBLICATION STATE Of LOUISIANA COURT Of APPEAL fIRST CIRCUIT 2006 CA 1838 WALTERJ HORRELL VERSUS LISA C MATTHEWS 1 j It IV A141 On by j li Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana Docket No 2006 10962 Division C f hi Honorable JP J v I fl if Walter J Larry J Green Judge Presiding Horrell Covington Kathleen D Stephenson Plaintiff LA In lambert BEFORE lambert l C l Appellant Proper Attorney Matthews Chavarri New Orleans lA G Person for Defendant Usa C Appellee Matthews PARRO GUIDRY AND McCLENDON JJ Judgment rendered AUG 1 5 2007 PARRO J Walter J Horrell appeals judgment denying his motion for a injunction in this possessory action We affirm the preliminary a judgment and remand BACKGROUND There is Horrell Sr long history behind the a Edward as to Walter believing he have his father succession father s estate mother and Covington was was was as executor executor of his invalid due to Edward The declared 96 2841 La which the request based on persuaded his hospitalized father a will 95 1598 1 31 97 was petition appellate La lack of to and testamentary and after judgment 2 the was was remanded App 4th Cir 9 11 96 signed for on to be further 680 So 2d appointed administrator of his father opposed by his mother and siblings the to sign the will transferring the Covington property finding that Walter who is Succession of Horrell 2 97 2115 s The trial court 1 appeal It 687 So 2d 403 an attorney had extraordinary animosity existing among the heirs in this affirmed a clearly established that when he knew his father could not understand the consequences of this and s the trial court s act when the will nullity Walter nullify the will and the court concluded juridical a s live consolidated were because the evidence erroneous Succession of Horrell intestate succession act separate petition disproportionately large portion of his The two lawsuits Upon remand Walter petitioned him a appointed to be court in Orleans Parish denied the judgment writ denied denied his surviving Walter J case where Walter and his wife mentally incapable of executing the a petitioned for appointment However Walter filed a leaving appellant in this succession and intestate Louisiana executed manifestly was proceedings 725 a statutory will probated and s Walter remove reversed was siblings claimed the will hearing the trial Edward opened Edward A court consisting of immovable property with the municipal address of 711 capacity when it judgment of whom is the The will transferred to Walter West 19th Street rule to one Edward s widow administratrix currently before this died while domiciled in New Orleans in 1993 spouse and five adult children Horrell matter La to juridical case The App 4th Cir 3 25 98 709 So 2d 1069 writ denied Matthews was On the 98 1023 La 5 29 98 720 So 2d 669 eventually named provisional administratrix of the succession same day that Edward signed the will that testamentary capacity he also signed an act later nullified for lack of was of donation inter vivos presented to him by Walter and in which he donated to Walter the property in Covington Louisiana his as However before Edward died her legal maneuverings the petition capacity summary had 10 6 00 on 808 So 2d 363 was res rehearing at 711 attempts to get West 19th Street in access to the acting s death and a execute a in motion for juridical act contesting the will and therefore the judicata The trial court Horrell v available to the granted the motion 99 1093 01 2546 efforts to La La 1st Or App 12 7 01 803 SO 2d However the Therefore Matthews filed March 9 There is also court ordering Walter inventory process a was Rule to Evict inventory and appraise in or on the immovable After Walter had rebuffed Covington notary and appraisers who had inventory many granted Matthews motion to make been the entire appointed to premises to conduct the again thwarted by Walter and his wife in the 22nd JDC which was set for 2 hearing 2006 an unreported 4th Cir 11 12 03 In fact Matthews property the trial compel the inventory and appraisal court immovable to name Matthews Matthews filed formerly owned by Edward and purportedly located property 2 also 1 movables App After Edward incapacity to writ denied The current matter stems from 1 plaintiff mental s Horrell rehearing on the in the earlier suit nullity of the donation inter vivos on same was he and his wife eventually amended as judgment alleging that Edward and this court affirmed juridical capacity was provisional administratrix as already been determined 971 which agent petitioned the Twenty Second Judicial District Court 22nd JDC to have the donation inter vivos revoked for lack of many Lisa C Walter s case involving 859 So 2d 318 this succession writ denied wife sued the administratrix appointed capacities after they tried to 04 0477 the In La re Succession of Horrell 4 8 04 03 0482 notary and the appraisers individually inventory and appraise movable property in the 3 La 870 So 2d 273 and in their residence Two the days before the eviction hearing Walter filed the possessory action that is subject of this suit3 and obtained Matthews and her a claiming were precarious possessors May 17 2006 it The TRO reconventional demand Edna decedent and and the succession owned the because after his death to consider opposed the motion the on used to block the court s or Walter a third their grounds that authority Walter s property or party claim against Walter wife s possession had been allowed by the an A hearing was set seeking injunctive relief could pending court rendered a injunctive relief and ordering him succession judgment not be proceeding and that basis on for Matthews preliminary injunction a action to act in the pending eviction suit The trial into the against Covington property and that Walter and Edna motion for s TRO expired after 10 days and Matthews filed by the succession representative in the motion for temporary restraining order preventing them from going onto agents evicting him and his wife from an answer a to file with the court or denying 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 devolutive appeal from the judgment rendered his request for the succession in open court on injunctive relief and ordering him proceeding May granted 17 2006 a denying to make his reimbursement claims in 5 APPLICABLE LAW Louisiana Code of Civil Procedure article 3612 B a n appeal may be taken preliminary or final 3 The possessory action eviction suit 4 After the judgment converted the suit to a matter of The injunction was was reconventional and third as a allotted to a 5 order or pertinent part that judgment relating to a right of appeal granted by this article is not hearing the May 17 hearing Matthews filed a motion to dismiss by asserting the claim of ownership of the property had which See LSA C C P served with these demands and the trial court 21 an in different division of the 22nd JDC from the division rendered at the party demands petitory action right from provides granted art 3657 her Walter and his wife had not been the motion to dismiss by an order signed June 2006 On May 23 before the written judgment was signed Walter filed a motion for appeal to preserve his appeal citing the 15 day time limit of LSA C C P art 3612 C That motion was granted by the court After the written judgment was signed he filed another motion for appeal again referencing the judgment rendered May 17 2006 and signed June 21 2006 concerning the denial of his motion for a preliminary injunction The trial court signed this motion also right to 4 restricted to judgment judgments which grant injunctive relief either granting denying or preliminary injunction a Country Club of Louisiana Property Owners Ass Cir 2 14 97 691 So 2d 142 injunction should be granted 144 1 n its discretion has been shown v 519 s U 1117 Generally Cir 12 28 06 of immovable cc P irreparable injury loss Equip Sales or or to on Inc art 3663 plaintiff in Unlike most 844 So 2d 1 the injunction the plaintiff that he will is 498 So 2d 144 150 Although action in an action an an eviction action or See on a La art preliminary injunction must be done a 03 0392 by not issue prima facie La App 1st brought by the possessor possession of the property when he has or restore art during the pendency thereof 01 0170 La 4 25 03 3601 or without v making Dorvin a 3663 5 however case Developments Inc gives an Whether prima facie disturbance in fact that exception to the right 1st Cir App 842 So 2d 400 500 So 2d 423 Therefore showing of no La LSA CC P art Country Club LSA possession of immovable La rise to is a disturbance in law that asserts the 3659 must show a 05 2240 writ denied an denied See LSA C C P art 3601 case City of Slidell v Ormond proceeding which is LSA C C P a possessory action Carbo actual eviction is cert damage if the injunction does protect App 5th Cir 1986 proceeding App 1st Cir 5 10 96 1997 preliminary injunction the merits App 1st possession when he has been evicted sought under LSA C C P prevail appeal an La a clear abuse of a 679 So 2d 435 Iberville Parish Council v to 11 writ denied cannot obtain a La where injunctive relief Article 3663 requires irreparable harm by the plaintiff 1 8 03 9 20 96 the merits of the be restored to the to a cases A possessory action is one Injunctive relief property is available LSA CC P only in sought this to be maintained in his property 3655 art La 136 L Ed 2d 848 952 SO 2d 77 81 been disturbed review 96 1463 showing that the party will prevail Machinery is entitled to Dornier 96 0898 v Daniels 96 0176 and must show entitlement to the relief State party aggrieved by question of whether the preliminary party seeking the issuance of a that he will suffer Lassalle writ denied 117 S Ct 963 a denied is addressed to the sound discretion of the trial or on 708 Inc n The court and its decision will be disturbed 673 SO 2d 704 Rather a 1987 possessory right of ownership to institute a possessory eviction proceeding is not a disturbance Monroe that will Inc basis for serve as a 623 So 2d 1380 1383 whose exercise of La a possessory action Jackson App 2nd Or 1993 is with the Nor may a precarious possessor one the bring the possessory action against the person for whom he possesses owner LSA C C arts 3437 and 3440 Or 1991 cannot Ormond possession Hirschfeld Country Club 498 SO 2d prevent other from co owners possession ownership See LSA C C art 802 cannot 74 737 So 2d 72 making of writ denied v 95 1272 La denied 10 4 96 750 La a behalf of See 1st App co owner property owned in indivision that of their Weinstein 99 0939 Succession of Miller or on since In addition co owners also Hart see 577 So 2d 747 at 151 use divest other co owner s Or 3 3 99 St Pierre v permission of Campco of v La rights of 98 1398 5 14 99 La use and App 3rd 745 So 2d 11 679 So 2d 1390 96 1717 La Finally lawful proceedings a action separate 648 651 138 So not lie to brought App 4th Cir 5 8 96 in a Levee Const Co 431 432 1931 injunction will pending action of any kind Equitable Cas v not lie to and it suit a App 3rd Or 1965 Proceedings action Lenfants Caterers Orleans 386 SO 2d 1053 the filing of a Inc 1055 lawful eviction suit in a La by it has a 1985 La right SJ 1989 3rd Cir is v overly broad to bring S M and means not Karst v a party of v v a default 1st Or 1983 enjoined necessary Respondent in a Ass n cannot separate of New prevent Terrebonne Parish Police Regardless of whether the enjoined from bringing 469 SO 2d 440 442 App 2nd Or a Landry 170 SO 2d 922 923 cannot be injunction cannot be La in injunction will an Charitable and Benev an Ward Steinman 550 So 2d 918 922 Dupre 5 31 95 or Muller App 4th Or 1980 Jury v Kelly 428 So 2d 1092 1093 La App injunction s enjoined necessarily follows that after suit is pending suit Firemen v writ Co of New York 173 La prevent the confirmation of step to be taken in the prosecution of the suit La Sur 443 44 cannot be Nothing is better settled than that prevent the bringing of an 674 SO 2d 441 La writ denied a suit which App 3rd Or 552 SO 2d 398 Schering Plough Health Care Products Inc 95 213 La App 656 SO 2d 786 pending action cannot be enjoined in 788 a It is well settled that separate action 6 as a general rule a DISCUSSION The judgment of the trial A on case plaintiffs motion for a states the following in preliminary injunction pertinent part held was 17 2006 May on hearing court in this Considering the law and arguments presented IT IS HEREBY ORDERED that plaintiffs motion for preliminary is DENIED injunction IT IS FURTHER ORDERED that Walter J Horrell shall file any claim may have for reimbursement for expenses associated with his occupancy of the property located at 711 W 19th Street Covington he Louisiana within thirty 30 days or by June 17 2006 with the having jurisdiction over the Succession of Edward A Horrell Sr 6 Walter his motion for make assigns the following decisions of the trial a preliminary injunction record a 3 4 proceeding and Addressing ordering him signing the fourth petitory action was court that a motion filed an ex parte Walter s action order purporting error put on dismissing evidence and to dismiss the note that we the order petitory action dismissing the party demands that had converted the possessory action to Walter s motions for appeal do s motion The only for not reference this order by Matthews after judgment had already been rendered denying the preliminary injunction was to allow him to separate from the judgment denying Walter preliminary injunction granted refusing 1 to file any reimbursement claims in the succession assignment of reconventional and third 2 court as error court matters addressed a a which in open by the judgment appealed involve the denial of injunctive relief and the order concerning reimbursement claims which Walter raised Therefore the issue of the dismissal of the by the fourth assignment of error is not before petitory us in this appeal Walter has argued and we agree that generally preliminary injunction is rendered only after proponent produces evidence to establish his merits of his claim at the full trial 6 a an a judgment on a motion evidentiary hearing prima facie case that he will However in the matter before us in for which prevail the court s on a the the ruling Walter s possessory action was not dismissed by this judgment The court struck through and initialed paragraph that would have ordered Walter to dismiss the captioned matter in its entirety within a certain period of time or face a request for damages for the order and for sanctions under LSA C C P art 863 7 wrongful issuance of a temporary restraining was not based on the factual situation person is not entitled to enjoin in court may take in another but based on the legal principle that a division of court the actions another division of one lawsuit pending was no matter what the facts may show The court stated As I understand this Court suit that is there is a CD C at this time ongoing matter And it appears that there is here in this court enjoin think that a one can by filing suit a There complicated s another suit t find where you can take one action in another suit 50 I an what you need to address s It s party in This is rather suit in CD C a And I ve checked the law and I suit Orleans Parish Civil District really an As the trial court noted argument of law there were already two other pending the succession cases proceeding in the Orleans Parish Civil District Court and the eviction proceeding another division of the 22nd JDC both of which involved the issues of ownership of the Covington property possessory action was no to point in or one what facts he have established after a trial to allow to halt on the a whether this lawsuit already been converted receiving evidence because injunctive relief no matter that had Therefore judicial actions as a matter in the other to a possession and was treated as a petitory action there of law Walter was not pending legal proceedings entitled Thus might have presented under these circumstances he could prima facie the merits case We find that he would no error or introduction of evidence or in legally be entitled to not injunctive relief abuse of discretion in the court s refusal in the denial of Walter s motion for a preliminary injunction Walter also states that the trial court erred in ordering him to make any claims for reimbursement of necessary expenses incurred to preserve the in the succession expenses on L5A CC art expenses and He argues that he has the property while 529 he may retain living there for case merely directed him over paid the necessary and useful thirteen years possession of the property until he improvements that he is entitled trial court in this it proceeding Covington property to claim did not order him to leave the to file his claims in the 8 and according to is reimbursed for However the judgment of the property before being reimbursed appropriate forum so that if accepted they could be paid out of the succession See LSA C C P arts 3241 3242 and 3243 Walter states in his brief to this court that he has submitted such claims to Matthews who has ignored them is tantamount to representative Under Article 3242 the failure to rejection and gives rise a to enforce the claim may exercise all the estate well as Succession of Bell owner a as in appointed this concurrence of any other case opened and one co owner their shares an or enjoyment of it See LSA C C The trial court listed as a of Edward s art Id order in this successors case Id LSA C C art 938 B The ordinary maintenance and repairs proportion Walter rights of ownership is co owners in use to proportion of the Covington to the value of his use and was not divested of any rights by and merely recognized that the Covington property is until and unless proven otherwise it is Walter administration of the succession submit any claims 806 However administratrix has been Since Walter had the sole in Id steps for litigate his claims against the succession in that proceeding succession asset and s See expenses for property his reimbursement may be reduced the trial court s order to or is to be reimbursed from the other See LSA C C art 806 take necessary exercise of his of the estate 938 A A co LSA C C art 800 administrator a successor co owner s LSA CC art a thing of So 2d co owner thing that is held in indivision payment of any necessary expenses by whole a representative to his interests in a App 1st Cir 6 08 07 subordinate to the administration incurred as La succession has been against the succession succession a rights of ownership with respect 06 1710 the preservation of the after qualification of his interest in the estate as without the may direct action a reject a claim or See LSA C C P art 3246 The law is clear that before the successor to aCknowledge s right of Therefore co co owned by all ownership is subordinate to the the court did not concerning reimbursement of expenses err in ordering Walter in the succession to proceeding CONCLUSION For the Walter s foregoing motion for reimbursement claims a reasons we preliminary affirm the injunction judgment of the and ordered court him which denied to make his concerning the Covington property in his deceased father 9 s succession proceeding possessory action We remand this All costs of this appeal are AFFIRMED AND REMANDED 10 matter for further assessed to Walter J proceedings in the Horrell
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