Best Fishing, Inc. v. Rancatore

706 So. 2d 161, 1997 WL 805401
CourtLouisiana Court of Appeal
DecidedDecember 29, 1997
Docket96 CA 2254
StatusPublished
Cited by18 cases

This text of 706 So. 2d 161 (Best Fishing, Inc. v. Rancatore) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Best Fishing, Inc. v. Rancatore, 706 So. 2d 161, 1997 WL 805401 (La. Ct. App. 1997).

Opinion

706 So.2d 161 (1997)

BEST FISHING, INC.
v.
Paul RANCATORE, Jr. and Katore Industries, Inc.

No. 96 CA 2254.

Court of Appeal of Louisiana, First Circuit.

December 29, 1997.

*162 Charles E. McHale, Jr., New Orleans, for plaintiff/appellant Best Fishing, Inc.

Lee C. Grevemberg, Covington, for defendants/appellees Paul Rancatore, Jr. and Katore Industries, Inc.

James R. Jenkins, Abita Springs, for third-party defendant/appellee Ned Wilson.

Reginald T. Badeaux, III, Covington, for defendant Parish of St. Tammany.

Jodi A. Moscona, Baton Rouge, for Intervenor Osey Singletary.

Alan M. Black, Slidell, for third-party defendants Arlene Stratton and Stanley Johnson.

Gordon P. Seron, Jr., New Orleans, for third-party defendant Stewart Title Co.

Before FOIL, WHIPPLE and KUHN, JJ.

WHIPPLE, Judge.

Plaintiff, Best Fishing, Inc., appeals from a judgment of the trial court, which declared that defendant, Paul Rancatore, had good title to a portion of Hesper Street in Lindberg Glen Subdivision of St. Tammany Parish and that any improvements on that part of Hesper Street could not be ordered removed. For the following reasons, we dismiss the appeal as an appeal taken from an unauthorized partial final judgment. Additionally, in considering plaintiff's appeal as an application for supervisory writs, we deny the writ application.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Best Fishing, Inc., filed a petitory action against Paul Rancatore and Katore Industries, Inc., seeking to be declared the owner of certain lots in Square 16 of Lindberg Glen Subdivision in St. Tammany Parish. Best Fishing also sought judgment compelling defendants to surrender possession of the subject property. In the pre-trial order setting forth the various claims of the parties, Best Fishing also averred that defendants had placed improvements on the property to which it claimed ownership and sought removal of those improvements.

By amended petition, Best Fishing named the Parish of St. Tammany as an additional defendant, averring that as the owner of the publicly dedicated streets in Lindberg Glen Subdivision, the Parish was an indispensable party. Best Fishing averred that its property in Lindberg Glen fronted Hesper Street, one of the alleged dedicated streets in the subdivision. Best Fishing additionally alleged that defendants, Rancatore and Katore Industries, had denied plaintiff access to the subject property by occupying and constructing improvements on Hesper Street. Thus, Best Fishing sought judgment ordering the defendants to remove the encroachments from Hesper Street.[1]

Trial in this matter was conducted on January 18, 1996. After a bench trial, the court rendered judgment, declaring that: Rancatore had "good title to that portion of Hesper *163 Street contained within his metes and bounds acquisition"; and that "[a]ny improvements on that portion of Hesper Street contained within the metes and bounds description of land owned by Paul Rancatore, Jr. cannot be ordered removed."

The judgment was silent as to the relief sought by Best Fishing in its original petition (resolution of its title claim and removal of encroachments), as well as the relief sought in the various incidental actions filed in this matter. Instead, it appears the sole focus at trial, and in the judgment, was whether or not Hesper Street was a publicly dedicated street, a very narrow issue, considering the various demands asserted herein.

From this judgment, plaintiff appeals, averring that the trial court erred in: (1) holding that Lindberg Glen Subdivision was informally dedicated, conferring only a servitude of passage to the public; (2) stating in reasons for judgment that the parties had stipulated that defendant Rancatore had not placed any improvements on plaintiff's property; and (3) failing to declare plaintiff the owner of the property at issue in Lindberg Glen Subdivision.

Recognizing at the outset that the judgment seemingly failed to address most of the issues presented by the main demand, this court issued a show cause order on August 19, 1997, ordering the parties to show cause by briefs why the appeal should or should not be dismissed, as taken from an unauthorized partial final judgment.

DISCUSSION

Issues Addressed By the Trial Court's Judgment

In addressing whether the judgment herein is a judgment from which immediate review by appeal is allowed, we first must determine what issues were resolved in the judgment, i.e., was it a partial judgment which decided less than all of the issues presented?

Plaintiff's petitions set forth two distinct claims. In its original petition, styled a petitory action, plaintiff sought to be declared the owner of certain property in St. Tammany Parish and to have defendants surrender possession of that property. Plaintiff also sought to have defendants remove improvements placed on the property to which plaintiff claims ownership. Through its amended petition, plaintiff sought removal of improvements placed on Hesper Street, which plaintiff averred was a publicly dedicated street owned by the Parish of St. Tammany. Plaintiff claimed that Hesper Street fronted the northern portion of the property which it alleged it owned and that plaintiff was denied access to its property by the improvements placed on Hesper Street by defendants.

However, as stated above, the judgment of the trial court only addresses the status of Hesper Street, i.e., declaring that Rancatore has good title to that portion of Hesper Street within his metes and bounds acquisition, and the removal of encroachments placed thereon, i.e., declaring that any improvements on that portion of Hesper Street owned by Rancatore "could not be ordered removed." The judgment does not address any of the issues raised by plaintiff in its original petition. Indeed, in plaintiff's second and third assignments of error, plaintiff challenges the trial court's failure to address these demands as raised in its original petition.

Ordinarily, where a judgment is silent as to any part of a demand or any issue that was litigated, that issue or demand is deemed rejected. Erich Sternberg Realty Company, Inc. v. Louisiana Tax Commission, 560 So.2d 868, 876 n. 7 (La.App. 1st Cir.), writ denied, 567 So.2d 107 (La.1990). However, it does not appear that plaintiff's claims in its original petition were litigated at the trial conducted herein.[2]

*164 The only indications in the record regarding the issues being addressed by the court are contained in a statement by the court at trial and two statements in the court's reasons for judgment. At trial, the following colloquy occurred:

BY MR. MCHALE:
I think Your Honor settled this problem in a pretrial conference. You indicated you weren't going to get into the remedies at this time whether or not the improvements have to be removed by the defendant.
BY THE COURT:
I'm not going to do that.

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Cite This Page — Counsel Stack

Bluebook (online)
706 So. 2d 161, 1997 WL 805401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/best-fishing-inc-v-rancatore-lactapp-1997.