L & W Enterprises v. Yor-Wic Construction Company,inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-568

L&W ENTERPRISES
VERSUS

YOR-WIC CONSTRUCTION COMPANY, INC.

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APPEAL FROM THE
CITY COURT, WARD ONE
NATCHITOCHES PARISH
NO. 30,375
HONORABLE FRED 8S. GAHAGAN, CITY JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry,
Judges.

JUDGMENT VACATED;
RENDERED; AND REMANDED.

Vincent J. Booth

Booth & Booth, APLC

138 North Cortez Street

New Orleans, LA 70119

(504) 482-5292

COUNSEL FOR DEFENDANT/APPELLANT:
Yor-Wic Contruction Company, Inc.

C. R. Whitehead, Jr.

WHITEHEAD LAW OFFICES

P.O. Box 697

Natchitoches, LA 71458-0697

(318) 352-6481

COUNSEL FOR PLAINTIFF/APPELLEE:
L&W Enterprises

KYZAR, Judge.

The defendant, Yor-Wic Construction Company, Inc., appeals from a city
court judgment awarding the plaintiff, L & W Enterprises, damages as a result of its
trespass onto property owned by the plaintiff. For the following reasons, we vacate,
render, and remand for further proceedings.

DISCUSSION OF THE RECORD

On April 5, 2018, L & W Enterprises (L & W) filed suit against Yor-Wic
Construction Company, Inc. (Yor-Wic), seeking damages based on its trespass onto
property allegedly belonging to it. L & W alleged that on July 19, 2017, Yor-Wic
trespassed on its property “with personnel, various vehicles and/or equipment(,]”
and that it “suffered damage in the form of being disposed of its property by the
actions of YOR-WIC.” It further alleged that it had not given Yor-Wic permission
or consent to enter onto its property.

Citation was personally served on David Wicker, Yor-Wic’s agent for service
of process, on April 9, 2018.' Thereafter, following a hearing on April 23, 2018, at
which Yor-Wic was not present, the city court rendered an oral default judgment in
favor of L & W, finding Yor-Wic liable in trespass and awarding L & W $2,000.00
in damages. A written judgment was rendered by the city court on April 23, 2018.
It is from this judgment that Yor-Wic appeals.

On appeal, Yor-Wic raises four assignments of error committed by the city
court judge:

l. The trial court erred in rendering a judgment against the

defendant as the record contains no citation and no evidence that
the defendant was ever served with the petition.

‘On September 10, 2018, the Natchitoches City Court ordered the clerk of the city court
to supplement the record on appeal in this matter by forwarding the April 9, 2018 citation and
return to this court.

2. The trial court erred in awarding damages to the plaintiff L & W
Enterprises, as the evidence in the record shows that plaintiff
does not have an ownership interest in the subject property.

3. The trial court erred in awarding damages for trespass, as there
is no evidence in the record of any damage or injury to the
property.

4. The trial court erred in awarding general damages for mental

anguish or inconvenience, as Louisiana law clearly provides that
entities such as the plaintiff partnership are not capable of
suffering mental anguish or inconvenience damages.

Additionally, Yor-Wic filed a peremptory exception of no right of action in
this court, arguing that because L & W was not the owner of the property at issue, it
had no right to institute the lawsuit at issue. This exception was referred to the merits
of the appeal. Because we find that the resolution of the exception will dispose of
Yor-Wic’s appeal, we need not address its assignments of error.

Peremptory Exception of No Right of Action

Pursuant to La.Code Civ. P. art. 2163, “The appellate court may consider the
peremptory exception filed for the first time in that court, if pleaded prior to a
submission of the case for a decision, and if proof of the ground for the exception
appears of record.”

The law pertaining to an exception of no right of action was laid out by the
supreme court in Miller v. Thibeaux, 14-1107, pp. 5-6 (La. 1/28/15), 159 So.3d 426,
430, as follows:

Except as otherwise provided by law, an action can be brought

only by a person having a real and actual interest, which he asserts.

LSA-C.C.P. art. 681. See also Reese v. State Department of Public

Safety and Corrections, 03-1615 (La.2/20/04), 866 So.2d 244, 246.

The function of the exception of no right of action is to determine

whether the plaintiff belongs to the class of persons to whom the law

grants the cause of action asserted in the suit. /d. (citing LSA-C.C.P.

art. 927). The focus in an exception of no right of action is on whether

the particular plaintiff has a right to bring the suit, but it assumes that

the petition states a valid cause of action for some person and questions

whether the plaintiff in the particular case is a member of the class that

has a legal interest in the subject matter of the litigation. Jd. For

2

purposes of the exception, all well-pleaded facts in the petition must be

taken as true. Eagle Pipe and Supply, Inc. v. Amerada Hess

Corporation, 10-2267 (La.10/25/11), 79 So.3d 246, 253.

In its April 5, 2018 petition, L & W alleged that it “is the owner of a certain
parcel of land located within the territorial jurisdiction of this court, bearing
municipal address of 320 South Drive, Natchitoches, LA 71457 and legal description
of Lot 1-A of Block G of Shamrock Park, Natchitoches Parish, Louisiana.” It further
alleged that Yor-Wic trespassed onto this property, that it suffered damages as a
result of this trespass, and that it had neither permitted nor consented to Yor-Wic
occupying or working on its property.

During the April 23, 2018 default judgment hearing, L & W introduced
various documents into evidence in support of its claim that it is the owner of the
property that Yor-Wic trespassed upon. These documents, which included a
certificate of title, performed by Charles R. Whitehead, ITI, and a 2018 assessment
listing by the Natchitoches Parish Tax Assessor, indicate that the property is owned
by the following parties: 1) Charles R. Whitehead, HI, the John Louis Whitehead
and Mary Edith Whitehead Trust, and the John P. Lawson and Marilyn P. Lawson
Living Trust (certificate of title) and 2) the John P. Lawson Living Trust, et al. (the
2018 assessment). Neither document listed L & W as an owner of the property.

Based on the evidence, we find that L & W, because it is not the owner of the
subject property, is not a member of the class that has a legal interest in the subject
matter of this litigation. Accordingly, we vacate the city court judgment and render
judgment sustaining Yor-Wic’s exception of no right of action. However, we
remand the matter to the city court to allow L & W the opportunity to amend its

petition to show that it has a cause of action in this matter. La.Code Civ.P. art. 934.

Leak

DISPOSITION
For the foregoing reasons, we vacate the judgment of the Natchitoches City
Court and render judgment in favor of Yor-Wic Construction Company, Inc.,
sustaining its peremptory exception of no right of action. The matter is remanded to
the Natchitoches City Court to allow L & W Enterprises the opportunity to amend

its petition. The costs of this appeal are assessed to L & W Enterprises.

JUDGMENT VACATED; RENDERED; AND REMANDED.

THIS OPINION {8S NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.