Dione W. David v. Richard G. David

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1259

DIONE W. DAVID

VERSUS

RICHARD G. DAVID

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 113,919
HONORABLE CHARLES L. PORTER, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, J. David Painter, and Phyllis M. Keaty,
Judges.

APPEAL DISMISSED.

Ed W. Bankston
Attorney at Law
Post Office Box 53485
Lafayette, Louisiana 70505
(337) 237-4223
Counsel for Defendant/Appellant:
Richard G. David

Tony Morrow
Annik L. Morgan
Attorney at Law
323 East University Avenue
Lafayette, Louisiana 70503
(337) 233-9515
Counsel for Plaintiff/Appellee:
Dione W. David

KEATY, Judge.

Richard G. David appeals from the trial court’s granting of a temporary

restraining order (TRO) in favor of Dione W. David. For the following reasons,

the appeal is dismissed.

FACTS AND PROCEDURAL BACKGROUND

Richard G. David (Appellant) and Dione W. David (David) were married on

March 3, 1973, and divorced on November 6, 2009. After a trial on the partition of

the community property, the trial court issued its judgment on December 12, 2011.

Prior to the judgment, David sought a TRO against Appellant on October 26, 2011.

The trial court granted the TRO and ordered that the TRO be effective until

April 26, 2013.

In the present matter, Appellant appeals the trial court’s granting of the TRO

in favor of David.

DISCUSSION

An appellate court may not set aside a trial court’s findings of fact in the

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840

(La.1989).

TRO

Appellant contends the trial court erred in granting the TRO. Appellant,

however, fails to cite any statutory or jurisprudential law in support of his

argument. In that regard, appeals from such judgments are governed by La.Code

Civ.P. art. 3612. That article provides the circumstances under which appeals may

be taken for preliminary and final injunctions. However, Article 3612(A)

specifically provides that, ―[t]here shall be no appeal from an order relating to a

temporary restraining order.‖ Accordingly, we have no power to consider on

appeal the propriety of the trial court’s judgment relating to the TRO ordering

Appellant not to harass, threaten, or go within fifty (50) feet of David. See, Guidry

v. Broussard, an unpublished decision bearing docket number 11-1287 (La.App. 3

Cir. 3/7/12). See also, McCown v. McCown, 93-899 (La.App. 3 Cir. 3/2/94), 634

So.2d 1249.

Appellant’s remedy for having the TRO dissolved was with the trial court.

More specifically, La.Code Civ.P. art. 3607, which is entitled ―Dissolution or

modification of temporary restraining order or preliminary injunction‖ provides, in

pertinent part:

An interested person may move for the dissolution or
modification of a temporary restraining order or preliminary
injunction, upon two days’ notice to the adverse party, or such shorter
notice as the court may prescribe. The court shall proceed to hear and
determine the motion as expeditiously as the ends of justice may
require.

Appellant did not avail himself of Article 3607, and he is prohibited by La.Code

Civ.P. art. 3612 from appealing the TRO.

CONCLUSION

Appellant has asked this court to reverse the trial court’s ruling and dissolve

the TRO. For the reasons discussed above, we have no power to consider on

appeal the propriety of the trial court’s judgment relating to the TRO. Accordingly,

this appeal is dismissed.

DECREE

This appeal is dismissed. All costs of this appeal are assessed against

Richard G. David.

APPEAL DISMISSED.

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