Larry C. Jeane v. the Succession of Vivian Cain Langton

• Court: Louisiana Court of Appeal
• Decided: February 10, 2016
• Docket: CA-0015-0815
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

15-815

LARRY C. JEANE, ET AL.

VERSUS

THE SUCCESSION OF VIVIAN CAIN LANGTON, ET AL.

**********

APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 90,946, DIV. B HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery, Judges.

REVERSED AND REMANDED.

David L. Wallace Attorney at Law P. O. Box 489 DeRidder, LA 70634 (337) 462-0473 COUNSEL FOR DEFENDANTS-APPELLEES: Succession of Vivian Cain Langton, et al. Alvin C. Dowden, Jr. Attorney at Law 116 E. Lula Street Leesville, LA 71446 (337) 238-2800 COUNSEL FOR PLAINTIFFS-APPELLEES: Larry C. Jeane Wilmer Lee Jeane

B. Gene Taylor, III Gold, Weems, Bruser, Sues & Rundell P. O. Box 6118 Alexandria, LA 71307-6118 (318) 445-6471 COUNSEL FOR DEFENDANT-APPELLANT: James A. Watson PICKETT, Judge.

James A. Watson appeals the judgment of the trial court granting a

preliminary injunction enjoining him from selling, alienating, or encumbering five

parcels of property he purchased from Michael White, acting as executor of the

Succession of Vivian Cain Langton.

STATEMENT OF THE CASE

According to the petition filed by the Jeanes, Mr. White, acting pursuant to a

power of attorney executed by Ms. Langton, agreed to sell to Larry Jeane a parcel

of land owned by Ms. Langton on May 1, 2006. According to the contract, Mr.

White would “give the Larry C. Jeane title when land is put in my name.” The

contract was notarized, but never filed in the public records.

In June 2006, Mr. White allegedly entered into an oral contract Larry Jeane

to sell an eighty-acre tract of land owned by Ms. Langton. There is no written

contract evidencing this sale or agreement to sell. Larry Jeane alleges he paid the

full purchase price of $96,000.00 in installments, with the final payment paid in

January 2012.

Ms. Langton died on March 20, 2007, at which time the power of attorney

authorizing Mr. White to act on her behalf became ineffective. Nevertheless, Mr.

White sold a parcel of land owned by Ms. Langton to Wilmer Lee Jeane on

December 14, 2007. The contract was signed by Mr. White and Wilmer Lee Jeane

and notarized, but it is not an authentic act and it was not filed in the public

records. The contract states that the land is approximately 1.6 acres, while the

accompanying property description states that the land is approximately 2.5 acres.

The contract also includes a notation by a notary public that the amount owed was

paid in full on March 15, 2014. In December 2014, Mr. White was named executor of Ms. Langton’s

succession. On March 3, 2015, Mr. White, as executor of the succession, sold five

parcels of land to Mr. Watson. Each of the five sales was accomplished by

authentic act and recorded in the conveyance records of Vernon Parish. The

Jeanes claim that the one of the parcels of land sold includes the tract sold to Larry

Jeane in May 2006 and the tract sold to Wilmer Lee Jeane in December 2007. The

Jeanes also claim that a second parcel sold to Mr. Watson is the same tract of land

Mr. White sold to Larry Jeane in June 2006.

The Jeanes filed a Petition to Rescind Sale, for Damages, and for Injunctive

Relief. In the petition, they allege that they are creditors of the Estate of Vivian

Cain Langton, and therefore have a right to petition the court for the rescission of

the sales to Mr. Watson. They also allege that the sales are lesionary and that Mr.

White breached the contracts he executed with the Jeanes, and that Mr. White

committed fraud. They further allege that Mr. Watson illegally harvested timber

on land he purchased from the succession, in that the timber he harvested was on

land previously sold by Mr. White to the Jeanes. The Jeanes sought a temporary

restraining order from the court preventing Mr. White, individually or as executor

of the succession, or Mr. Watson from alienating or encumbering any of the

property sold to Mr. Watson. The trial court granted an ex parte temporary

restraining order to that effect on March 24, 2015, and set a hearing on whether a

preliminary injunction should issue for May 12, 2015.

Mr. Watson and Mr. White separately responded to the petition by filing

exceptions of no cause of action and no right of action. A hearing on the

exceptions was set for May 12, 2015. The Jeanes filed a supplemental and

amending petition on May 12, 2015, the day of the hearing. At the hearing, the

2 trial court stated that the hearing would have to be refixed because of recent filings.

The trial court did, however, grant the preliminary injunction sought by the Jeanes.

No evidence was introduced at the hearing. Mr. Watson now appeals.

ASSIGNMENT OF ERROR

Mr. Watson asserts one assignment of error:

The trial court committed legal error in granting the Jeanes’ application for a preliminary injunction without a hearing or the taking of evidence.

DISCUSSION

“An injunction shall be issued in cases where irreparable injury, loss, or

damage may otherwise result to the applicant[.]” La.Code Civ.P art. 3601(A).

“During the pendency of an action for an injunction, the court may issue a

temporary restraining order, a preliminary injunction, or both[.]” La.Code Civ.P.

art. 3601(C). “A preliminary injunction shall not issue unless notice is given to the

adverse party and an opportunity had for a hearing.” La.Code Civ. P. art. 3602.

The trial court may determine whether to issue a preliminary injunction by looking

only to the verified petition and supporting affidavits, but to do so the court must

do so in writing and an order to that effect must be served at the time the notice of

the hearing is served. La.Code Civ.P. art. 3609.

In order to prevail at a hearing seeking a preliminary injunction, a party must

show irreparable harm if the injunction is not issued, that he is entitled to the relief

sought, and must make a prima facie showing that he will prevail on the merits.

Gen. Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979).

In the instant case, the trial court denied a hearing to Mr. Watson and issued

a preliminary injunction pending the refixing of the hearing. The trial court’s

statement on the record alluded to a discussion held in chambers. The fourth

3 circuit has held that a pretrial conference is insufficient to meet the requirements of

a hearing before issuing a preliminary injunction. See Robinson v. Robinson, 94-

2513 (La.Appp. 4 Cir. 9/15/95), 661 So.2d 1087. The first, second, and fourth

circuits have held that the proper remedy for issuance of a preliminary injunction

without the required hearing is to reverse the order and remand for a hearing that

complies with the law. See Kilbourne v. Hunt, 276 So.2d 742 (La.App. 1 Cir.

1973); State v. Twin Cities Memorial Gardens, Inc., 43,568 (La.App. 2 Cir.

9/17/08), 997 So.2d 16; and Licfro Inc. v. State, 03-737 (La.App. 4 Cir. 10/1/03),

859 So.2d 739.

We find the trial court erred in granting a preliminary injunction without the

hearing required by La.Code Civ. P. art. 3602 and without giving notice of a

hearing on the pleadings and affidavits pursuant to La.Code Civ.P. art. 3609. The

judgment of the trial court is reversed, and the case is remanded for a hearing in

accordance with this opinion.

CONCLUSION

The judgment of the trial court is reversed. The case is remanded for further

proceedings consistent with this opinion. Costs of this appeal are assessed to Larry

and Wilmer Lee Jeane.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules−Courts of Appeal, Rule 2−16.3