Polk v. Buckhalter

258 So. 3d 816
CourtLouisiana Court of Appeal
DecidedSeptember 24, 2018
DocketNO. 2018 CA 0053
StatusPublished
Cited by3 cases

This text of 258 So. 3d 816 (Polk v. Buckhalter) 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
Polk v. Buckhalter, 258 So. 3d 816 (La. Ct. App. 2018).

Opinion

HIGGINBOTHAM, J.

Defendant appeals from the trial court's judgment granting plaintiffs' rule for eviction, awarding damages to plaintiffs, and denying defendant's peremptory exceptions of no cause and no right of action and dilatory exceptions of unauthorized use of summary proceedings and nonjoinder of a necessary party.

FACTS AND PROCEDURAL HISTORY

On February 22, 2017, plaintiffs, Ms. Nakeya Downing and Ms. Mary Morris Ramsey Polk, filed a "Petition for Eviction of Land and for Damages" seeking an order evicting defendants, Andrea Buckhalter and Natasha McNealty, from a tract of land in Tangipahoa Parish allegedly owned by plaintiffs. Plaintiffs also sought damages caused by defendants preventing Ms. Downing from moving her trailer onto the tract of land. According to the petition, Ms. Buckhalter and Ms. McNealty both lived in trailers that were located, in part, on land owned by plaintiffs. In their petition, plaintiffs alleged ownership of the tract of land via a 2009 judgment of possession rendered in the succession proceeding of Ms. Polk's father, Mr. Riley Morris, Sr., as well as a 2011 consent judgment. Thereafter, on March 27, 2017, plaintiffs filed a "Rule and Order to Show Cause," which ordered Ms. McNealty1 to show cause why the petition for eviction and damages should not be granted.

In response, Ms. McNealty filed several exceptions, including peremptory exceptions of no right of action and no cause of action, and dilatory exceptions of failure to join necessary parties and unauthorized use of summary proceedings. In the exceptions, she challenged the ownership of the tract of land where Ms. McNealty's trailer was located and contended that Ms. McNealty's aunt, Ms. Mary Jackson, rather than plaintiffs, had an ownership interest in the tract of land.

On June 26, 2017, Ms. McNealty's exceptions, as well as plaintiffs' rule to show cause, came before the trial court for a hearing. At the hearing, the trial court acknowledged that Ms. Buckhalter moved *818her trailer from the tract of land at issue thereby rendering the eviction claims against her moot and stated that the court was addressing only claims against Ms. McNealty.

In a judgment signed on August 1, 2017, the trial court overruled Ms. McNealty's exceptions, granted the plaintiffs' rule for eviction, ordered Ms. McNealty to vacate the premises and remove all belongings, and awarded plaintiffs monetary damages for Ms. Downing's trailer moving expenses and for her trailer rental expenses at another location. It is from this judgment that Ms. McNealty appeals asserting that eviction was not the proper remedy because ownership and possession are in dispute, that plaintiffs failed to establish that they had a right of action to pursue eviction, that plaintiffs' eviction action failed to join necessary parties, and that damages were improperly granted in a summary proceeding.2

Timeliness of the appeal

Upon examination of the record, this court issued a rule ordering the parties to show cause why this appeal should not be dismissed as untimely under La. Code Civ. P. art. 4735. The show cause order was referred to this panel to consider in connection with our review of the merits of this appeal. Louisiana Code of Civil Procedure article 4735 states:

An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.

Louisiana Code of Civil Procedure article 2087 provides that an appeal which does not suspend the effect or execution of an appealable judgment may be taken within sixty days of the date of the mailing of notice of the court's refusal to grant a timely application for a new trial, as provided by La. Code Civ. P. art. 1914. See La. Code Civ. P. art. 2087(A)(2) ; Terrebonne Parish Port Com'n v. Eagle Dry Dock & Marine Repairs, L.L.C. , 2014-0010 (La. App. 1st Cir. 7/7/15), 2015 WL 4094331, *7 (unpublished), recognizing that a devolutive appeal may be taken from a judgment in a summary eviction proceeding. See also Freemin v. Coglaiti , 411 So.2d 471, 472 (La. App. 1st Cir. 1981) (even if an appeal for an eviction judgment cannot be maintained as suspensive, it may be maintained as a devolutive appeal if the requirements of the general law for a devolutive appeal are met.) While the record reveals that Ms. McNealty's appeal was not timely filed to suspend the execution of the judgment under Article 4735, we find that the appeal was timely filed within sixty days of the denial of the motion for new trial and thus the appeal is maintained as a devolutive appeal.

LAW AND ANALYSIS

Eviction is a proper remedy for an owner of immovable property, who *819wishes to evict a lessee or "occupant" therefrom, after the purpose of the occupancy has ceased. La. Code Civ. P. art. 4702 ; PTS Physical Therapy Service, Inc. v. Magnolia Rehabilitation Service, Inc. , 40,558, 40,599 (La. App. 2d Cir. 1/27/06), 920 So.2d 997, 999. Louisiana Code of Civil Procedure article 4702, which provides the basis for this remedy, was designed to give an owner of immovable property summary means to evict an occupant without fulfilling the burden and delay required in a petitory action. Id. The eviction procedure may not be construed to conflict with the Louisiana Code of Civil Procedure articles relating to actions to determine possession and ownership. La. Code Civ. P. art. 4705. It is well settled that an eviction proceeding is not the appropriate remedy to determine real rights to immovable property. See Champagne v. Broussard , 401 So.2d 1060, 1064 (La. App. 3d Cir.), writ denied, 409 So.2d 615 (La. 1981). Summary eviction procedure is not appropriate to try disputed title to property but is designed for situations where the possessor has no semblance of claim to title or possession. Northeast Realty v. Jackson , 36,276 (La. App. 2d Cir. 8/14/02), 824 So.2d 1264, 1267-68.

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Bluebook (online)
258 So. 3d 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polk-v-buckhalter-lactapp-2018.