Colleen Ann Fruge Foreman v. Curtis P. Cart

• Court: Louisiana Court of Appeal
• Decided: February 20, 2008
• Docket: CA-0007-1162
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-1162

COLLEEN ANN FRUGE FOREMAN and KEITH W. FOREMAN, JR.

VERSUS

CURTIS P. CART AND CURTIS JAMES CART

********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2004-1039 HONORABLE ARTHUR J. PLANCHARD, DISTRICT JUDGE

********** ELIZABETH A. PICKETT JUDGE

**********

Court composed of Glenn B. Gremillion, Elizabeth A. Pickett, and J. David Painter, Judges.

APPEAL DISMISSED.

Jack W. Caskey Attorney at Law 704 Ryan Street Lake Charles, LA 70602 Counsel for Plaintiffs/Appellants: Keith W. Foreman, Jr. and Colleen Ann Fruge Foreman

R. Michael McHale Jr. McHale Law Firm 631 Kirby Street Lake Charles, LA 70601 Counsel for Defendants/Appellees: Curtis P. Cart and Curtis James Cart PICKETT, Judge.

The plaintiffs, Colleen Ann and Keith W. Foreman, appeal a judgment of the

trial court denying their motion for summary judgment which sought to have a

judgment rendered by the trial court on May 18, 2005, and signed by the court on

March 27, 2006, annulled. For the following reasons, we dismiss plaintiffs’ appeal.

FACTS

This case arises out of a neighborhood squabble between two groups of

residents over the use of a private road, Kim Street, in Sulphur, Louisiana, and over

the mistreatment of each other by the adverse parties. The alleged misbehavior of the

two groups included allegations of death threats, batteries, stalking, trespassing, and

annoying telephone calls and led to the plaintiffs filing a suit for a “Permanent

Injunction” on February 5, 2004. A temporary injunction was issued that day, and a

hearing was scheduled for February 17, 2004. On February 17, 204, both the hearing

and the temporary injunction were continued. The suit languished for some fifteen

months until May 5, 2005, when a hearing was held, and another “Temporary

Injunction” was issued and a hearing scheduled for May 18, 2005.

On May 18, 2005, a definitive hearing was finally held in the matter. Thirteen

parties appeared in court: Colleen and Keith Foreman, the original plaintiffs; Curtis

P. and Curtis J. Cart; and nine others. At the close of that hearing the trial judge

called all thirteen of the parties before the bench and orally issued the “Permanent

Restraining Order” which forms the basis for this appeal. The order prohibited each

of the thirteen parties present during the hearing from engaging in the following acts

in reference to each other member of the group:

1) Harassing, molesting, or bothering at any time or place in any form, fashion or manner;

1 2) Obstructing Kim Street, Sulphur, Louisiana at any time, in any form, fashion or manner; or any ingress or egress onto or on Kim Street, Sulphur, Louisiana;

3) Communicating in any form or fashion at any time or at any place;

4) Committing any act designed for the purpose of irritating or bothering, molesting or harassing.

Also, the judgment stayed any further proceeding in the matter for 120 days, to give

the District Attorney time to “conduct an investigation concerning the matters raised

in this suit.” The oral judgment rendered May 18, 2005, was not signed until March

27, 2006. Approximately six months later, on September 15, 2006, the plaintiffs filed

a writ application with this court seeking to have the judgment signed March 27,

2006, declared null and void. This court refused to consider the writ, finding it

untimely. Three days after ths court refused the writ, on September 25, 2006, the

plaintiffs filed a petition in the trial court to have the judgment of March 27, 2006,

declared a nullity. Thereafter, on January 11, 2007, the plaintiffs filed a motion for

summary judgment in connection with their petition of September 25, 2006 (“Petition

To Have Judgment Declared A Nullity”). The motion was heard and denied on

March 30, 2007. A judgment to that effect was signed June 12, 2007. This appeal

followed.

LAW AND DISCUSSION

The plaintiffs in this suit sought a permanent injunction, the relief they sought

was granted by the trial court and now, they seek to have the judgment granting the

relief originally sought declared a nullity. This they cannot do. Under La.Code

Civ.P. art. 927, an exception of no right of action may be noted by the trial or

appellate court on its own motion. We recognize that exception herein.

2 It is well established that only a party aggrieved by a trial court judgment has

the right to an appeal. State, Dept. of Transp. & Dev. v. Estate of Summers, 527

So.2d 1099 (La.App. 1 Cir.1988). In Simpson v. Kimbell Milling Co., 164 So.2d 637,

639 (La.App. 3rd Cir.), writ refused, 246 La. 834, 167 So.2d 665 (La.1964), Justice

Albert Tate Jr., who was a judge on this court at the time, explained:

The [appellee] contends that the defendants, having prayed for the dismissal of the suit, cannot appeal from the trial judgment dismissing it in accordance with their demand.

The [appellee] thus relies upon Louisiana jurisprudence to the effect that a party cannot appeal from a judgment rendered in his favor in strict accordance with his prayer for relief. Succession of Dickson, 227 La. 838, 80 So.2d 433; Falcon v. Falcon, 221 La. 14, 58 So.2d 406; Moser v. Moser, 213 La. 290, 34 So.2d 782. These decisions accord with the general rule in other jurisdictions that a party may not appeal from a judgment granting him full relief. Annotation, Appeal--Right of Winning Party, 69 A.L.R.2d 701.

The basic reasoning behind this rule is that a party is not aggrieved or prejudiced by the trial judgment which affords him the full relief he prays for. 69 A.L.R.2d 706. Further, as noted in the fountainhead case in this line of Louisiana decisions, a party who obtains a judgment in accordance with his prayer, is estopped to deny the correctness of the judgment, in the same manner as if he had acquiesced in it or executed it voluntarily. State ex rel. John T. Moore Planting Co. v. Howell, 139 La. 336, 71 So. 529.

Accordingly, for the reasons stated, the plaintiffs’ appeal is dismissed. All

costs of this appeal are assessed against the plaintiffs, Colleen Ann and Keith W.

Foreman.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2-16.3.