Pontchartrain Natural Gas System, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. Texas Brine Company, LLC

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 CA 0141
to/

GERALD WAYNE MIZELL AND PAMELA MIZELL HELTON

VERSUS

BOBBY JOE WILLIS AND JAMES E. WILLIS

Judgment Rendered: NODI 1 5 2019
V"

Appealed from the 22° d Judicial District Court
in and for the Parish of Washington
Case No. 110744

The Honorable Reginald T. Badeaux, III, Judge Presiding

Richard W. Watts Counsel for Appellants
Franklinton, LA Defendants/ Petitioners- in-

reconvention/ Third- party plaintiffs
Bobby Joe Willis and James E.
Willis

William H. Arata Counsel for Appellees
Bryan A. Harris Plaintiffs/ Defendants- in-
Bogalusa, LA reconvention

Gerald Wayne Mizell, Pamela
Mizell Helton

Counsel for Appelle

Third -party defendant
Charles Blackwell

BEFORE: HIGGINBOTHAM', PENZATO, AND LANIER, JJ.

1 Judge Toni Manning Higginbotham was not present at oral argument of this case; however, she
participated in deliberations via a recording of the hearing.

LANIER, J.

In the instant case, Bobby Joe Willis and James E. Willis (" the Willis

brothers"), challenge the trial court' s October 24, 2018 judgment, which purported

to dismiss, with prejudice, their reconventional and third -party demand against

Gerald Wayne Mizell, et al.2 For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

According to the record, Gerald Wayne Mizell and Pamela Mizell Helton,

and the Willis brothers own adjoining tracts of land in Washington Parish ( the

Mizell" and " Willis" tracts). There is a gravel road running in a north/ south

direction along the western edge of the Mizell and Willis tracts, which the Willis

brothers allege they have used for in excess of 30 years to access their property. A

dispute arose in 2016 when a fence was built across the road, blocking the Willis

brothers' use of the road. The Mizells filed suit for partition in kind of the property

they co -owned with the Willis brothers. In response, the Willis brothers filed a

reconventional and third -party demand, seeking restoration of their right of passage

along the road. Named in this demand as third -party defendants were Charles Guy

Blackwell and Lylia D. Blackwell. The Mizells were named as defendants -in -

reconvention. The Willis brothers alleged that the road had been " consistently

maintained" by them and " used on a daily basis" by them until the fence was

constructed in November 2016. They asserted further that the road had been in

existence for well over 30 years and was at one time maintained by the governing

body of Washington Parish.

The matter proceeded to a bench trial on August 16, 2018, at which time

various documents were introduced into evidence and the trial court heard from

2 The underlying suit, a petition for partition in kind of a tract of land measuring approximately
33 acres, filed by the Mizells, was settled prior to the trial of this matter. The parties reached an
agreement as to partitioning of the property such that Willis brothers were granted ownership of
seven acres of land.

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numerous witnesses regarding the road in question. At the conclusion of the trial,

the trial court took the matter under advisement. The trial court issued written

reasons for judgment on October 24, 2018, concluding that the Willis brothers had

not met their burden of proof under La. R. S. 48: 491 and that the road was not a

public road. On October 24, 2018, the trial court singed a judgment as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the reconventional and third -party demand by
petitioner -in -reconvention Bobby Joe Willis, ET AL against

defendant -in -reconvention Gerald Wayne Mizell, ET AL be
DISMISSED with prejudice.

IT IS FURTHER ORDERED that the costs associated with
this proceeding be assessed to petitioner -in -reconvention, Bobby Joe
Willis, ET AL.

This is a final and appealable Judgment pursuant to La. C. C. P.
art. 1915.

It is from this judgment that the Willis brothers have appealed, arguing that

the trial court erred ( 1) in finding that the road had not been publicly maintained in

accordance with La. R.S. 48: 491 and ( 2) in failing to find the Willis brothers had

provided " sufficient proof to establish ownership of a servitude of passage acquired

by [ 30 years acquisitive] prescription."

RULE TO SHOW CAUSE

On July 24, 2019, this court, ex proprio motu, issued a rule to show cause in

this matter on the grounds that the judgment on appeal was ambiguous in that the

court was " unable to discern what specific relief [was] granted to which particular

parties." Both sides filed briefs in response to this court' s show cause order.

The Willis brothers contend that although the judgment " may not have been

drafted as artfully or precisely as a reviewing court may wish, the effect of the

judgment is perfectly clear: Gerald Wayne Mizell, Pamela Mizell Hilton, Charles

Guy Blackwell and Lydia D. Blackwell won. Bobby Joe Willis and James E.

Willis lost." They request that either the show cause order be dismissed or that the

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case " be remanded to the trial court for the limited purpose of supplying a suitable

judgment with the appropriate decretal language for consideration" by this court.

The Mizells and Charles Blackwell argue that the judgment is not a final and

appealable judgment because it fails to name all of the parties in whose favor the

judgment is rendered and all the parties against whom the judgment is ordered.

Moreover, they point out that because the judgment requires reference to extrinsic

evidence to discern the trial court' s ruling, the judgment lacks the decretal language

necessary to vest this court with appellate jurisdiction.

SUBJECT MATTER JURISDICTION

Appellate courts have the duty to determine sua sponte whether their subject

matter jurisdiction exists, even when the parties do not raise the issue. Gaten v.

Tangipahoa Parish School System, 2011- 1133 ( La. App. 1 Cir. 3/ 23/ 12), 91

So. 3d 1073, 1074. This court's appellate jurisdiction extends only to " final

judgments." See La. Code Civ. P. art. 2083( A); Rose v. Twin River

Development, LLC, 2017- 0319 ( La. App. 1 Cir. 11/ 1/ 17), 233 So. 3d 679, 683.

Under Louisiana law, a final judgment is one that determines the merits of a

controversy in whole or in part. La. Code Civ. P. art. 1841. A valid judgment

must be precise, definite, and certain; must contain decretal language; and must

name the party in favor of whom the ruling is ordered, the party against whom the

ruling is ordered, and the relief that is granted or denied. Gaten, 91 So. 3d at 1074.

These determinations should be evident from the language of the judgment without

reference to other documents in the record. Advanced Leveling & Concrete

Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268

So. 3d 1044, 1046 ( en banc).

The October 24, 2018 judgment sought to be appealed herein contains the

Latin phrase " et al" when referring to the parties both in the caption of the

judgment and in the actual body of the judgment itself. In cases with multiple

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plaintiffs or defendants, the failure to name the plaintiff(s) or defendant( s) for or

against whom the judgment is rendered makes the judgment fatally defective

because one cannot discern from its face for or against whom it may be enforced.

See Jenkins v. Recovery Technology Investors, 2002- 1788 ( La. App. 1 Cir.

6/ 27/ 03), 858 So. 2d 598, 600; but cf. Micken v. DHC OPCO- Napoleonville,

LLC, 2018- 0140 ( La. App. 1 Cir. 11/ 2/ 18) 2018 WL 5732482, * 2 ( unpublished)

because plaintiff was clearly identified in the caption and body of the judgment as

the only plaintiff in the case, judgment was found to contain sufficient decretal

language even though it did not specify that plaintiff had filed the action against

the defendants or that the judgment was rendered against her). Thus, because the

judgment lacks sufficient decretal language, ascertainable from the four corners of

the order or judgment, the ruling on which this appeal is based is not a final

appealable judgment. In the absence of appropriate decretal language, the

judgment is defective and cannot be considered a final judgment for purposes of

appeal,
notwithstanding the trial court's certifying it as such. Thus, we are

constrained to find that this court lacks appellate jurisdiction to review this matter,

and the appeal must be dismissed.' See Advanced Leveling & Concrete

Solutions, 268 So. 3d at 1046- 1047.

3 Although this court could consider converting this matter to an application for supervisory
writs, we decline to do so. The decision to convert an appeal to an application for supervisory
writs is within the discretion of the appellate courts. Stelluto v. Stelluto, 2005- 0074 ( La.
6/ 29/ 05), 914 So. 2d 34, 39.
Generally, appellate courts have exercised that discretion when the
motion for appeal was filed within the thirty -day time period allowed for the filing of an
application for supervisory writs under Uniform Rules, Courts of Appeal, Rule 4- 3 and where
reversal of the trial court' s decision would terminate the litigation, or where clear error in the trial
court's judgment, if not corrected, will create a grave injustice. However, when the jurisdictional
defect lies in the non -finality of a judgment ( as opposed to an appeal from an interlocutory
judgment), an appellate court will generally refrain from the exercise of its supervisory
jurisdiction when an adequate remedy exists by appeal. In such cases, an adequate remedy by
appeal will exist upon the entry of the requisite precise, definite, and certain decretal language
necessary for appellate review. This is because in the absence of proper decretal language, the
judgment is defective, and this court lacks jurisdiction to review the merits, even if we were to
convert the matter to an application for supervisory writs. Accordingly, we decline to exercise
our discretion to convert this appeal of a judgment that is not final for lack of decretal language
to an application for supervisory writs. See Boyd Louisiana Racing, Inc., v. Bridges, 2015-
0393 ( La. App. I Cir. 12/ 23/ 15), 2015 WL 9435285, * 34 (unpublished).

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CONCLUSION

For the foregoing reasons, we dismiss the appeal of the October 24, 2018

judgment. Costs of this appeal are assessed against appellants, Bobby Joe Willis

and James E. Willis.

APPEAL DISMISSED.

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