The Succession of Allen Smith, Jr. v. Keith Alan Portie

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 19-409
Consolidated with CA19-183

THE SUCCESSION OF ALLEN L. SMITH, JR.

VERSUS

KEITH ALAN PORTIE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-4038
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX

CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

APPEAL NUMBER CA19-409 CONVERTED TO WRIT
APPLICATION WHICH IS TO BE CONSIDERED IN
CONSOLIDATION WITH APPEAL NUMBER CA19-183.

Timothy O’Dowd
Timothy O’Dowd Law Firm
924 Hodges Street
Lake Charles, LA 70601
(337) 310-2304
COUNSEL FOR PLAINTIFF/APPELLEE:
Shirley Ann Smith

Kenneth Michael Wright
Kenneth Michael Wright, L.L.C.
203 West Clarence Street
Lake Charles, Louisiana 70601
(337) 439-6930
COUNSEL FOR DEFENDANT/APPELLANT:
Keith Portie

Christopher E. John
Assistant City Attorney
Post Office Box 900
Lake Charles, Louisianan 70602
(337) 491-1523
COUNSEL FOR DEFENDANT/APPELLEE:
City of Lake Charles

THIBODEAUX, Chief Judge.

This court, on its own motion, issued a rule for Defendant-Appellant, Keith

Portie, to show cause, by brief only, why appeal number CA19-409 should not be

dismissed as having been taken from a non-appealable, interlocutory ruling. Portie

has filed a brief in response to this court’s rule. For the reasons assigned, we hereby

convert appeal number CA19-409 into a writ application which is to be considered in

consolidation with appeal number CA19-183.

The case arises out of a dispute between two adjacent landowners with regard

to a five-foot strip of land which forms a border between the property owned by

Plaintiff, Shirley Smith1, and the property owned by Defendant, Portie. The strip of

land between the two properties was dedicated as a public drainage servitude and

accepted by the City of Lake Charles via Resolution Number 366 on February 20,

1952. The strip of land, or five-foot drainage servitude, remained bare land until

August 21, 2015, when Portie purchased his property and placed drainage pipes,

cement barriers, and truck loads of dirt on the strip of land. Plaintiff now alleges that

Portie’s actions violated subdivision restrictions, which prohibit certain improvements

from being made on the servitude. Plaintiff also alleges that she has a servitude of

drainage on the five-foot strip of land and that Portie’s actions resulted in drainage

problems on her property, which damaged her property and interfered with her

enjoyment of her property. Portie was the only defendant named in the original

petition; however, the petition was amended to add the City of Lake Charles (“City”)

as a party defendant.

On July 7, 2017, the trial court rendered a partial summary judgment in favor of

Plaintiff and held that the City owns the five-foot strip of land between Plaintiff’s

property and Portie’s property. Portie sought to appeal the July 7, 2017 judgment in a

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When the original petition was filed, the plaintiff in this case was the Succession of Allen
Smith, Jr.; however, Shirley Smith was subsequently substituted as the party plaintiff.

prior appeal filed under this court’s docket number CA18-195. However, on April 11,

2018, this court rendered an opinion dismissing appeal number CA18-195 without

prejudice on the ground that the July 7, 2017 judgment which was at issue in that

appeal was a partial judgment that had not been designated final and appealable

pursuant to La.Code Civ.P. art. 1915(B). See Succession of Smith v. Portie, 18-195

(La.App.3 Cir. 4/11/18) (unpublished opinion).

Additionally, Plaintiff filed a motion for preliminary injunction, and the trial

court granted that motion in a judgment signed on December 11, 2018. In that

judgment, Portie was ordered to stop draining his property onto Plaintiff’s property, to

stop interfering with Plaintiff’s drainage across the five-foot strip of land at issue, and

to stop otherwise increasing the drainage burden on Plaintiff’s property. Portie

appealed that judgment, and the appeal was lodged in this court on March 8, 2019,

under this court’s docket number CA19-183.

Meanwhile, on November 30, 2018, Portie had also filed a motion for partial

summary judgment. Although that motion for partial summary judgment does not

contain a prayer for relief, Portie apparently sought a partial summary judgment

declaring that because the City has not taken any action to maintain the servitude on

the five-foot strip of land, the servitude has thus prescribed for nonuse. On February

5, 2019, the trial court signed a judgment denying Portie’s motion, which was

designated as final and appealable pursuant to La.Code Civ.P. art. 1915(B); the notice

of this judgment was mailed on February 15, 2019. On February 6, 2019, Portie filed

a motion to appeal the February 5, 2019 judgment, and the record for that appeal was

lodged in this court on June 4, 2019, under appeal number CA19-409. This court

then issued a rule ordering Portie to show cause why the appeal filed under appeal

number CA19-409 should not be dismissed as having been taken from a non-

appealable, interlocutory ruling. On June 10, 2019, Portie filed a motion to

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consolidate appeal number CA19-409 with appeal number CA19-183. On June 20,

2019, this court signed an order consolidating those two appeals.

On June 26, 2019, Portie filed his response to this court’s rule to show cause

order for appeal number CA19-409. Therein, however, Portie fails to address the

appealability of the judgment at issue in appeal number CA19-409. Rather, he spends

a great deal of time discussing prior appeal number CA18-195. Portie contends that

after this court dismissed prior appeal number CA18-195, the trial court later

designated the July 7, 2017 judgment, which was the subject of prior appeal number

CA18-195, a final and appealable judgment pursuant to La.Code Civ.P. art. 1915(B).

Although Portie contends that the procedural defects giving rise to the dismissal of

prior appeal number CA18-195 have now been cured, he has not indicated that a new

order of appeal has been obtained which would permit him to re-urge an appeal of the

July 7, 2017 judgment. As such, we find that that judgment is not properly before this

court on appeal at this time. Thus, the only appeals pending for this case at this time

are appeal number CA19-195, whereby Portie seeks review of the December 11, 2018

judgment granting a preliminary injunction against Portie, and appeal number CA19-409,

whereby Portie seeks review of the February 5, 2019 judgment denying partial summary

judgment on the issue prescription.

With regard to the February 5, 2019 judgment, we find that the trial court’s

denial of Portie’s motion for partial summary judgment is interlocutory because it

does not decide the merits of this case. See La.Code Civ.P. art. 1841. We also find

that the judgment is non-appealable pursuant to La.Code Civ.P. art. 968, which, in

pertinent part, provides that “[a]n appeal does not lie from the court’s refusal to

render any judgment on the pleadings or summary judgment.” We note that the trial

court indicated in the February 5, 2019 judgment that it was designating that judgment

final and appealable pursuant to La.Code Civ.P. art. 1915(B). However, this court has

held that “[a]lthough certification of a partial judgment granting a motion for

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summary judgment is allowed under Article 1915, this does not authorize the

certification of a judgment denying a motion for summary judgment.” Romero v.

Charter Behavioral Health Sys. of Lake Charles, 00-1108, p. 3 (La.App. 3 Cir.

1/31/01), 780 So.2d 530, 531-32 (citations omitted). Also, the jurisprudence has held

that a judgment denying a motion for summary judgment, which is deemed non-

appealable by La.Code Civ.P. art. 968, cannot be converted into an appealable

judgment by the trial court’s certification of the judgment as final under La.Code

Civ.P. art. 1915(B). See Ware v. Mumford, 04-118 (La.App. 5 Cir. 5/26/04), 875

So.2d 885. Therefore, we find that the trial court was without authority to designate

the February 5, 2019 judgment a final judgment under Article 1915(B) and that its

attempt to make such a designation did not serve to make the judgment appealable.

Having determined that the February 5, 2019 judgment denying Portie’s motion

for partial summary judgment is not a final judgment subject to review on appeal, we

now turn to the questions of whether to dismiss appeal number CA19-409, and

whether to allow Portie the right to seek review of the interlocutory judgment at issue

via application for supervisory writs. The judgment was rendered on February 5,

2019, and the motion for appeal was filed on February 6, 2019. As such, we find that

the motion for appeal can be considered a timely-filed notice of intent to seek a

supervisory writ. See Uniform Rules—Courts of Appeal, Rule 4–3. Ordinarily, under

such circumstances, we would dismiss the appeal and allow Portie to file a writ

application to seek review of the February 5, 2019 judgment at issue in appeal number

CA19-409. “Under our general supervisory authority, however, an appellate court is

entitled to convert [an] appeal into an application for a supervisory writ of review.

La.Code Civ.P. art. 2164.” LeBlanc v. LeBlanc, 05-212, p. 3 (La.App. 3 Cir. 11/2/05),

915 So.2d 966, 969. In the instant case, we find that the factual circumstances and

legal issues raised in appeal number CA19-409 and CA19-183 are so interrelated that

the judgments at issue should be reviewed together. Therefore, in the interest of

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judicial economy and efficiency, we hereby convert appeal number CA19-409 to a

writ application, and hold that this writ application is to be considered in consolidation

with appeal number CA19-183.

APPEAL NUMBER CA19-409 CONVERTED TO A WRIT APPLICATION
WHICH IS TO BE CONSIDERED IN CONSOLIDATION WITH APPEAL
CA19-183.

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

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