William Joseph McPherson, Jr., Et Ux. v. Nelson Laprairie, Et Ux.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-98

WILLIAM JOSEPH MCPHERSON, JR., ET UX.

VERSUS

NELSON LAPRAIRIE, ET UX.

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ON APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 30,016 “A”
HONORABLE KATHY JOHNSON, JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Wilbur L. Stiles,
Judges.

REVERSED AND REMANDED.

V. Russell Purvis
Smith, Taliaferro & Purvis
P. O. Box 298
Jonesville, Louisiana 71343
(318) 339-8526
COUNSEL FOR APPELLANTS:
William Joseph McPherson, Jr., Et Ux.

Paul A. Lemke, III
Attorney at Law
P. O. Box 595
Harrisonburg, Louisiana 71340
(318) 744-5431
COUNSEL FOR APPELLEES:
Nelson LaPrairie, Et Ux.

PERRY, Judge.

This case involving a petition which sought a right of way is before us after

the trial court denied the plaintiffs’ relief. For the following reasons, without

addressing the merits of the case, we reverse the trial court judgment and remand

this matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On September 22, 2020, William Joseph McPherson and his wife, Karen

Duane Saucier McPherson (Plaintiffs), filed a petition for a right of way against

Nelson LaPrairie and his wife, Patricia Ann LaPrairie (Defendants). In their petition,

Plaintiffs contended that: (1) they owned property adjacent to Defendants which is

separated from a public road by Defendants’ lands in Catahoula Parish; (2) a road

adjoining Plaintiffs’ property to Larto Bayou Road that leads through Defendants’

property had been in use for many years to reach Plaintiffs’ property but Defendants

recently gated the road, depriving Plaintiffs of access to their property, and have

refused them access from their property to the public road, Larto Bayou Road; (3)

this access road had been used by Plaintiffs or their predecessors in title for over

thirty years; (4) under the provisions of La.Civ.Code art. 742, the right of way has

been acquired under acquisitive prescription; or (5) in the alternative, if the right of

way has not been acquired under acquisitive prescription, Plaintiffs were nonetheless

entitled to a servitude of passage under the provisions of La.Civ.Code art. 689.

Shortly thereafter, Defendants filed an answer denying Plaintiffs’ petition and

further asserted that the Plaintiffs have access to their property by direct access to

the Parish public road, Tradewell, a/k/a Moody Road, in Catahoula Parish and by

the parish public road named Noel Lane.

The case proceeded to a bench trial, which was heard on January 10, 2022,

and January 14, 2022. At the conclusion of testimony, the court minutes reflect the

following statement:

The Court reserves the right to go to the property with the Parties
and see it for herself. The Parties are to get the costs of a survey and
each are [sic] to place half of the cost into the registry of the Court.
[Counsel for Defendants] objected to this. The Parties are to get the
distance of the road to travel from Moody Road to Noel Lane to Larto
Bayou Road, plus the four (4) digit road number. Both parties are to
prepare briefs.

On May 12, 2022, the court minutes reflect the following statement: “This

matter came to [be] heard this date for CONTINUATION OF TRIAL. Plaintiffs

were not present in open Court represented by counsel, Russell Purvis. Defendants

were not present in open Court represented by counsel, Paul Lemke.”

The next action in the case occurred on August 22, 2022. On that date, the

court minutes state:

This matter came to be heard this date for STATUS
CONFERENCE. Russell Purvis was present in open Court
representing the Plaintiffs. Paul Lemke was present in open Court
representing the Defendants. Pursuant to chambers conference,
evidentiary objection was cured and will be reduced to a written order.
The Court was informed that a stipulated agreement had been reached
and was read into the record by Mr. Lemke. Joint exhibit will be
submitted.[1] Transcript was ordered by the Court and a copy of the
minutes are to be given to the Court Reporter. Parties are each to submit
briefs. Mr. Lemke will have thirty (30) [days] to file his brief[] after
Mr. Purvis’ is filed.

On October 11, 2022, the Plaintiffs filed their post-trial memorandum. Later,

on October 21, 2022, Defendants made three contemporaneous filings: (1) a

peremptory exception of no right of action with a memorandum together with an

attachment; (2) a peremptory exception of nonjoinder of a party under La.Code

1
Our review of the transcript and the appellate briefs sheds no light on the character or
content of that proposed joint exhibit. Furthermore, our review of the transcript fails to show that
the stipulated agreement was read into the record. We also have found that the joint exhibit that
was referenced has not been placed in the record.
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Civ.P. art. 641 with a supporting memorandum; and (3) a post-trial memorandum.

On October 24, 2022, the trial court, considering the Defendants’ filing of the two

peremptory exceptions, ordered the Plaintiffs to show cause on December 1, 2022,

why the peremptory exceptions should not be maintained and why this action should

not be dismissed with prejudice.

On November 23, 2022, the Plaintiffs filed a rebuttal post-trial memorandum.

In that filing, the Plaintiffs addressed the Defendants’ arguments about the merits of

the Plaintiffs’ case, as well as Defendants’ newly filed peremptory exceptions.

After receiving the post-trial filings, the trial court held a hearing on

December 1, 2022. At that time, without addressing the rule to show cause hearing

to deal with the Defendants’ two peremptory exceptions, the trial court, said:

The first matter on the docket is William Joseph McPherson, Jr., et al
versus Nelson LaPrairie, et ux., 30016. And I have made a ruling in
that matter. Mr. McPherson and his wife have sued Mr. LaPrairie and
his wife for a right-of-way, and The Court finds that the McPhersons
have ample property, and they also have access [to] Noel Lane and
Tradewell Road, so their request is denied, and they’re cast with court
costs.

After the trial court’s announcement of its ruling on the merits, the parties further

stipulated to the following: (1) the deed dated November 21, 2021, attached to the

Defendants’ peremptory exception of no right of action would be entered into the

record; and (2) the trial court was asked not to rule on Defendants’ two peremptory

exceptions, stating “since both of these exceptions can be filed in the Court of

Appeals, we can address those on appeal[.]” The trial court agreed with those

stipulations.

On December 12, 2022, the trial court signed a judgment finding in favor of

the Defendants, rejecting the Plaintiffs’ request to grant a servitude of passage across

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the Defendants’ property. Subsequently, on January 9, 2023, the trial court granted

the Plaintiffs’ motion for devolutive appeal.

ANALYSIS

Although the Plaintiffs have perfected two assignments of error, we omit any

discussion of them for reasons detailed below.

To determine whether a trial court judgment regarding the evidence is correct

or reasonable, the evidence must be available to the reviewing court. Tremie v.

Tremie, 14-733 (La.App. 3 Cir. 12/17/14), 154 So.3d 796. Under the provisions of

La.Code Civ.P. art. 2132, an appellate record which omits a material part of the trial

record “may be corrected even after the record is transmitted to the appellate court,

by the parties by stipulation, by the trial court or by the order of the appellate court.”

Moreover, pursuant to La.Code Civ.P. art. 2161, this court may remand the case for

retrial or for correction of the record. Tremie, 154 So.3d 796.

In the present case, although the Civil Jurisdiction Index indicates that the trial

exhibits are bound with the record, numerous exhibits have not been included in the

record. Thus, we are faced with record deficiencies that impact our ability to assess

the arguments raised by the Defendants’ peremptory exceptions and the Plaintiffs’

argument regarding the trial court’s rejection of their claim for a right of way.

Defendants’ Peremptory Exceptions

The Defendants’ peremptory exception of no right of action is premised on

the purported transfer of the subject property made by the Plaintiffs to the

McPherson Family Holdings, L.L.C. on December 21, 2021. This transfer allegedly

occurred just a few weeks before the trial of the Plaintiffs’ action to secure a right of

way from the Defendants and the record does not reflect that the Plaintiffs’ limited

liability company was substituted as a party-plaintiff.

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Attached to the memorandum in support of the Defendants’ peremptory

exception was the Plaintiffs’ transfer document dated December 21, 2021, where

they allegedly transferred the property, which forms the basis for this litigation, to

their limited liability company. In support of that contention, Defendants attached a

copy of a filing made by William Joseph McPherson, Jr., and Karen S. McPherson

made on December 21, 2021, to McPherson Family Holdings, L.L.C. In that

document, the Plaintiffs transferred all of “their right, title and interest in and to the

property described on Exhibit ‘A’ attached hereto [], together with all rights and

appurtenances now or hereafter in any matter appertaining thereto, including without

limiting the generally thereof all buildings, improvements, rights, ways, privileges

and servitudes.” Unfortunately, Exhibit “A” referenced in the transfer document

was not included in the record. Thus, although the property subject to this litigation

may have been included in that transfer, without examining Exhibit “A” that fact

cannot be ascertained.

Regarding the Defendants’ other peremptory exception, nonjoinder of a party

under La.Code Civ.P. arts. 641 and 642, reference is made by the Defendants that

Plaintiffs are also seeking passage across the lands of Tony and Jennifer Haviland

(the Havilands). Thus, the Defendants argue that the Plaintiffs should have included

the Havilands as defendants.

Our review of the record shows the following minute entry for Friday, January

14, 2022:

Due to the unforeseen health emergency, the witness, Ton[y]
Haviland, could not be present at the hearing today. The Parties
stipulated to what the testimony of Tony Haviland would have been, if
he would have been present to testify: (1) Mr. Haviland has been living
in the house since 2013, reflected in the donation in exhibit #11; (2) Mr.
Haviland built a gate in 2020, reflected in photo in exhibit #4; (3) Pipe
gate with a tire that was there when he bought the property and there

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until 2018, gate shown in photo in exhibit #5, also where the truck is
located in the photo is Mr. Haviland’s driveway.

Additionally, our review of the record shows the Defendants entered the cash sale

deed to the Havilands into evidence as Exhibit D-14. After combing the appellate

record, neither the exhibits referenced in the minute entry dated January 14, 2022,

nor Exhibit D-14 appear in the record.

Although under La.Code Civ.P. art. 927(B) the peremptory exceptions of no

right of action and non-joinder of a party may be noticed and addressed by the

appellate court, the evidence relied upon needed to resolve these peremptory

exceptions is simply not in the record. Thus, remand to the trial court is required to

address these peremptory exceptions.

The Merits of the Plaintiffs’ Appeal

The record shows that the Plaintiffs introduced sixteen exhibits into evidence

at trial. Of the sixteen exhibits introduced by the Plaintiffs, we have five available

for our review. Although none of these exhibits appear in the appellate record, these

five exhibits are labeled and are attached to the Plaintiffs’ original brief to this court,

and in accordance with Louisiana Court of Appeal, Third Circuit, Local Rule 28.

Plaintiffs’ counsel certified them as being evidence entered at trial.2

Likewise, the record shows that at trial the Defendants entered evidence which

consisted of fourteen exhibits—thirteen photos and the Havilands’ deed referenced

2
The evidentiary attachments to Plaintiffs’ brief are identified as Exhibits P-1, 6, 8, 9,
and 10. We have compared these documents to the list of exhibits described in the record and have
confirmed that they were entered into evidence at trial. However, an Assessor’s map was also
attached to the post-trial memorandum the Plaintiffs filed on October 11, 2022. That item, though
attached to the Plaintiffs’ memorandum in the record, cannot be considered because it was never
introduced into evidence. Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983
So.2d 84, 88 (“Evidence not properly and officially offered and introduced cannot be considered,
even if it is physically placed in the record[.]”).
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above. None of the items of evidence entered by the Defendants are in the record

filed with this court.

Without a complete set of evidence filed in the record by Plaintiffs and

Defendants, we are unable to determine whether the trial court judgment regarding

the evidence is correct or reasonable. Thus, we must remand this case to the trial

court.

REMAND INSTRUCTIONS

Louisiana Code of Civil Procedure Article 928(B) provides that “[t]he

peremptory exception may be pleaded at any stage of the proceeding in the trial court

prior to a submission of the case for a decision[.]”

In the present case, although the trial court heard evidence on two days in

January of 2022, it did not yet consider the case submitted for decision. That fact is

evident from its comments at the conclusion of the trial when it noted it wanted to

visit the property in question and requested evidence from a surveyor to be paid by

the litigants. Again, as reflected in the court minutes of May 12, 2022, it referred to

the continuation of the trial. That was further amplified on August 22, 2022, when

the trial court held a status conference with the respective attorneys, considered a

stipulated agreement on an evidentiary matter, and set dates for the parties to present

post-trial memoranda.

The record is likewise clear that it was when the Defendants filed their post-

trial memorandum on October 21, 2022, that they contemporaneously filed their two

peremptory exceptions. In consideration of that filing, the trial court ordered the

Plaintiffs to show cause on December 1, 2022, why the peremptory exceptions

should not be maintained and why this action should not be dismissed with prejudice.

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Thus, we find that Defendants filed their peremptory exceptions prior to a

submission of the case for a decision.

Considering that finding, La.Code Civ.P. art. 929 provides, in pertinent part:

If the peremptory exception has been pleaded after the trial of the case,
the court may rule thereon at any time unless the party against whom it
has been pleaded desires and is entitled to introduce evidence thereon.
In [this] event, the peremptory exception shall be tried specially.

In their second memorandum to the trial court dated November 22, 2022, the

Plaintiffs, relying on language in the transfer deed, urged that the trial court find

there was no merit to Defendants’ peremptory exception of no right of action because

the right of way to their property was not included in the transfer deed. Accordingly,

it appears that Plaintiffs have evidence to present in opposition to Defendants’

peremptory exceptions. Thus, La.Code Civ.P. art. 929 is applicable and calls for the

trial court to hold a special hearing to address the peremptory exceptions before

proceeding to trial on the merits of Plaintiffs’ action.

Finally, considering the potential effect that the two peremptory exceptions

may have on this litigation, it is necessary that we reverse the judgment of the trial

court.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court and

remand this matter to the trial court for further proceedings. The costs of this appeal

are assessed one-half each to the litigants.

REVERSED AND REMANDED.

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