Opinion
2016 CA 1547 2016 CA 1548
03-15-2018
EDNA R. HORRELL v. GERARDO R. BARRIOS AND LISA MATTHEWS Consolidated with EDNA R. HORRELL v. GAYE H. COFFER, MICHAEL J. HORRELL, EDWARD HORRELL, JR., AND MARIE ELISE LECOUR
Walter J. Horrell Covington, Louisiana Third Party Defendant/Appellant In Proper Person and Counsel for Plaintiff/Appellant Edna R. Horrell Jack M. Alltmont Eric M. Schorr New Orleans, Louisiana Counsel for Defendants/Appellees Gaye H. Coffer, Michael J. Horrell, Edward A. Horrell, Jr., and Marie Elise Lecour Kathleen D. Lambert Maria I. O'Byrne Stephenson Sean R. Dawson New Orleans, Louisiana Counsel for Defendant/Appellee Lisa C. Matthews, as Provisional Administratrix of the Succession of Edward A. Horrell, and Gerardo Barrios
NOT DESIGNATED FOR PUBLICATION Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Docket No. 2005-12893 c/w 2016-10267 Honorable Raymond S. Childress, Judge Presiding Walter J. Horrell
Covington, Louisiana Third Party Defendant/Appellant
In Proper Person
and
Counsel for Plaintiff/Appellant
Edna R. Horrell Jack M. Alltmont
Eric M. Schorr
New Orleans, Louisiana Counsel for Defendants/Appellees
Gaye H. Coffer, Michael J. Horrell,
Edward A. Horrell, Jr., and Marie
Elise Lecour Kathleen D. Lambert
Maria I. O'Byrne Stephenson
Sean R. Dawson
New Orleans, Louisiana Counsel for Defendant/Appellee
Lisa C. Matthews, as Provisional
Administratrix of the Succession of
Edward A. Horrell, and Gerardo Barrios BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. McCLENDON, J.
Edna R. Horrell and Walter J. Horrell appeal from judgments of the Twenty-Second Judicial District Court that granted summary judgment in favor of the defendants, Lisa Matthews and Gerardo Barrios, and dismissed Edna's tort claims and request for injunctive relief; denied Edna's claim for declaratory judgment; denied Edna's possessory action; granted a third-party and reconventional demand in favor of the defendants, Gaye H. Coffer, Michael J. Horrell, Edward J. Horrell, Jr., and Marie Elise Lecour; and denied Edna's petition to annul Judgment of Possession. For the reasons that follow, we vacate in part; amend in part, and, as amended, affirm.
FACTS AND PROCEDURAL HISTORY
Edward A. Horrell, Sr. died in New Orleans on July 9, 1993, leaving a surviving spouse, Clare, and five adult children, Walter, Gaye, Michael, Edward Jr., and Marie Elise. Shortly after Edward's death, Clare filed a petition and order for appointment of administratrix with a sworn descriptive list in the Civil District Court for the Parish of Orleans (CDC) stating that Edward died intestate. The detailed descriptive list indicated that at the time of his death, Edward owned separate immovable property, including a tract located on 19th Street in Covington, Louisiana (Covington property). However, several days prior to Clare's filing of the petition, Edward's oldest son, Walter, sought to have Edward's statutory will (executed April 13, 1993) probated, which bequeathed the same Covington property to Walter. The will had been prepared by Walter's daughter, a notary public, and was witnessed by Walter's wife, Edna, and Walter's son, Allen E. Horrell. On the same date as the signing of the execution of the will, Edward also signed an act of donation, which was prepared by Walter, who is an attorney, also giving Walter the Covington property.
Thereafter, Clare, as administratrix, along with Edward's four other children, petitioned to have the statutory will declared invalid, alleging lack of testamentary capacity, undue influence, lack of sufficient number of witnesses, and conflict of interest. The Court of Appeal, Fourth Circuit, subsequently granted the petition for a declaration of the invalidity of the alleged testament, finding that Edward was mentally incapable of executing a juridical act when the will was signed, and declared the will a nullity. Succession of Horrell, 95-1598 (La.App. 4 Cir. 9/11/96), 680 So. 2d 725, 729, writ denied, 96-2841 (La. 1/31/97), 687 So. 2d 403. The validity of the act of donation was litigated in the Twenty-Second Judicial District Court in St. Tammany Parish (22nd JDC), which granted summary judgment in favor of Walter's co-heirs, invalidating the donation. The 22nd JDC's judgment invalidating the donation inter vivos was affirmed by this court in Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00), 808 So. 2d 363, 376, writ denied, 01-2546 (La. 12/7/01), 803 So. 2d 971.
Edward's succession has been pending in the CDC for over twenty-four years and has resulted in substantial litigation. The instant case arises from a dispute regarding the movable and immovable property located in Covington. Walter and his wife, Edna, have occupied the residence on the Covington property since before Edward's death.
See e.g., Horrell v. Barrios, 12-2054 (La.App. 1 Cir. 9/26/13) (unpublished); Horrell v. Barrios, 12-2055 (La.App. 1 Cir. 9/26/13) (unpublished); Horrell v. Matthews, 10-1694 (La.App. 1 Cir. 5/6/11) (unpublished), writ denied, 11-1848 (La. 11/4/11), 75 So.3d 925; Horrell v. Barrios, 09-2199 (La.App. 1 Cir. 7/21/10) (unpublished); Matthews v. Horrell, 06-1973 (La.App. 1 Cir. 11/7/07), 977 So.2d 62; Horrell v. Matthews, 06-1838 (La.App. 1 Cir. 8/15/07) (unpublished); Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00), 808 So.2d 363, writ denied, 01-2546 (La. 12/7/01), 803 So.2d 971; Succession of Horrell, 11-1574 (La.App. 4 Cir. 4/11/12), 102 So.3d 139; Succession of Horrell, 11-1577 (La.App. 4 Cir. 4/18/12), 89 So.3d 1267, writ denied, 12-1348 (La. 9/28/12), 98 So.3d 846; Succession of Horrell, 11-0194 (La.App. 4 Cir. 11/30/11), 79 So.3d 1162, writ denied, 12-0180 (La. 3/23/12), 85 So.3d 96; Succession of Horrell, 95-1598 (La.App. 4 Cir. 9/11/96), 680 So. 3d 725, writ denied, 96-2841 (La. 1/31/97), 687 So. 2d 403.
In 1998, Matthews, who had been appointed provisional administratrix of Edward's intestate succession on July 3, 1997, filed a detailed descriptive list wherein she listed the Covington property as an asset of Edward's succession. Thereafter, following the 22nd JDC's invalidation of the inter vivos donation, Matthews amended the descriptive list to claim the household furnishings located in the house and outbuildings on the Covington property as disputed assets of Edward's succession. Clare and four of the other heirs to the succession filed a motion to traverse the detailed descriptive list in 2002. Following a hearing on the traversal, the CDC issued a judgment on November 6, 2002, finding that there were household furnishings situated in Covington at the current residence of Walter that belonged to the succession. The judgment ordered Matthews to establish the 1993 value of the household furnishings that were inherited by Edward and which were owned by him at his death, including but not limited to a cabinet, sofa, and four chairs, with the value thereof to be listed as separate property on the amended descriptive list.
During the pendency of the litigation regarding the validity of the statutory will, Walter successfully obtained the removal of Clare as administratrix of Edward's succession. After the invalidity of the will was affirmed by the appellate court, upon remand, Walter petitioned to be appointed administrator of Edward's intestate succession. However, the trial court denied his request, which decision was affirmed on appeal in Succession of Horrell, 97-2115 (La.App. 4 Cir. 3/25/98), 709 So. 2d 1069, writ denied, 98-1023 (La. 5/29/98), 720 So. 2d 669.
Thereafter, the 22nd JDC signed a judgment granting a motion for court-ordered access to the succession property by an appraiser and ordered Matthews to forward a letter by regular mail to Walter, informing him of the date and time on which the appraiser would appear for purposes of inspecting all of the Covington property. The court noted that if the appraiser should fail to gain access to any part of the Covington property, Matthews could take whatever steps she deemed necessary to secure access to the property. Barrios was subsequently appointed by the CDC as the notary public charged with the duty of conducting an inventory of the movable property located at the Covington property. However, Walter and Edna refused to allow Barrios to conduct an inventory.
In an effort to secure access to the Covington property, Matthews filed a motion to compel an inventory and appraisal. In a May 26, 2005 judgment, the 22nd JDC granted Matthews' motion and ordered that Barrios communicate with Walter to select a mutually agreeable time for the appraisal to take place and, if an agreement could not be reached within five days of the judgment, authorized Barrios to select a date and time for the appraisal to take place. Edna responded to the court's ruling by filing a petition under docket number 2005-12893 in the 22nd JDC, naming Matthews and Barrios as defendants and seeking a declaratory judgment, damages, and a permanent injunction. Edna asserted that Matthews and Barrios were violating her rights by inventorying all movables at the Covington property, which included movables that she, and not the succession, owned. Accordingly, Edna sought a judgment declaring that she be recognized as the owner of all of the corporeal movables located in her home or on the premises on which her home was located, awarding reasonable compensation for damages caused by Matthews and Barrios, and enjoining Matthews and Barrios from harassing her or disturbing her peaceable possession of her corporeal movables in any way, making any claim of ownership of the corporeal movables, or examining, inventorying, or appraising her corporeal movables.
Walter and Edna continued to refuse to allow Barrios to enter onto the Covington property, and, as a result, Matthews filed a rule for contempt. Following the 22nd JDC's grant of the rule for contempt, the court issued an order directing that the inventory and appraisal of the movable property take place on July 18, 2007. Thereafter, in accordance with the 22nd JDC's order, Barrios and two appraisers took an inventory of all the movable property located at the Covington property, and Barrios filed a process verbal of the inventory. In May 2009, Matthews filed a third amended detailed descriptive list, including the items inventoried at the Covington property and listing the items as disputed assets of the succession.
Subsequently, Matthews and Barrios filed motions for partial summary judgment, requesting dismissal of Edna's claims for injunctive relief and for damages in tort. Following a hearing, the 22nd JDC granted Matthews and Barrios' motion for partial summary judgment pertaining to Edna's request for injunctive relief, but denied the motion for partial summary judgment as it related to her tort claims. However, the court specifically noted that the summary judgment as to Edna's tort claims could be revisited. Accordingly, on May 21, 2012, Matthews and Barrios filed another motion for partial summary judgment in the 22nd JDC, seeking dismissal of Edna's tort claims against them, individually and in their official capacities as the court-appointed administratrix and notary. Following a hearing on the re-urged motion for partial summary judgment, the court granted the motion. The 22nd JDC subsequently signed judgments on August 13, 2012, and August 16, 2012, in conformity with its rulings, expressly finding that there was no just reason for delay and designating the judgments as final appealable judgments pursuant to LSA-C.C.P. art. 1915. Edna appealed these judgments to this court; however, after conducting a de novo review of the record, this court determined that the designation by the 22nd JDC was inappropriate, because Edna's action seeking a declaration that she was the owner of all of the movables located at the Covington property was still pending in the 22nd JDC, and we dismissed the appeals. Horrell v. Barrios, 12-2054 (La.App. 1 Cir. 9/26/13) (unpublished) and Horrell v. Barrios, 12-2055 (La.App. 1 Cir. 9/26/13) (unpublished).
Meanwhile, following a March 11, 2009 filing in the CDC of a fourth amended detailed descriptive list, wherein the items inventoried at the Covington property were listed as separate property, Clare, Gaye, Michael, Edward, Jr., and Marie Elise filed a petition for partial possession in the CDC requesting possession of certain assets of the succession. Particularly, Gaye, Michael, Edward, Jr. and Marie Elise (the Coffer defendants) petitioned for possession of the movables located at the Covington property as well as the Covington property itself. On April 19, 2011, the CDC signed a judgment of possession, wherein the Coffer defendants were recognized as entitled to and sent into possession of an undivided 1/5 interest, each, in and to the Covington property as well as to the household furniture and furnishings located at the Covington property, or the sale proceeds therefrom. The Fourth Circuit subsequently affirmed the trial court's judgment. See Succession of Horrell, 11-1574 (La.App. 4 Cir. 4/11/12), 102 So.3d 139, 144.
On May 7, 2009, Matthews filed a motion for a hearing to determine the status and value of disputed items on the third amended detailed descriptive list. In her motion, Matthews noted that she had filed the third amended detailed descriptive list, listing the movables located at the Covington property in accordance with previous orders of the court, but that as of the time of filing of the motion, none of the heirs or other interested parties had moved to traverse the amended descriptive list. Accordingly, Matthews requested that the court set a hearing to determine the status and value of those items. Following a hearing on Matthews' motion, the CDC signed an order on July 6, 2009, denying Matthews' motion and ordering her to file an amended detailed descriptive list wherein the items listed as disputed were either listed as separate or community property assets of the succession and to assign a value thereto based upon the appraisals conducted in July 2007.
We note that neither Walter nor Edna filed a motion to traverse any of the detailed descriptive lists wherein the movable property inventoried at the Covington property was listed as an asset of the succession.
Thereafter, on September 11, 2015, the CDC issued an order, authorizing Matthews to execute a listing agreement with Sperry Van Ness/Gilmore Auction & Realty Company and ordering that the Covington property be sold at public auction in accordance with law. Edna responded by filing a petition for declaratory judgment on October 26, 2015, in the 22nd JDC, alleging that she was the legal possessor of the Covington property; that the Coffer defendants filed a judgment of possession in the public records in St. Tammany Parish, which recognized them as possessors of the Covington property, thereby creating a continuing disturbance in law and a disturbance of her possession; and that the judgment of possession was an absolute nullity. The Coffer defendants excepted to Edna's petition, raising the objection of improper venue. The 22nd JDC subsequently issued a judgment sustaining the exception. However, rather than transferring the action to the CDC, the 22nd JDC, pursuant to Walter's request, dismissed the action without prejudice.
Thereafter, on January 19, 2016, Edna filed another possessory action in the 22nd JDC under docket number 2016-10267, raising essentially the same allegations as contained in the previously filed possessory action and seeking a judgment recognizing her right to the possession of the Covington property, maintaining her in possession of the Covington property, declaring the invalidity of the judgment of possession, permanently enjoining the Coffer defendants and their agents from interfering with her possession or possessory rights in any way with reference to the Covington property, awarding her damages, and ordering the Coffer defendants to pay all costs of the proceeding.
On February 22, 2016, Matthews filed a petition in the CDC for the authority to consummate the sale of the immovable property, wherein she asserted that the auction had taken place and that she and the Coffer defendants had accepted an offer of $610,000.00, plus the buyer's premium, for a total of $671,000.00. Due to opposition of the sale by Walter and Edna, Matthews requested that the court order Walter and Edna to file any and all objections or opposition to the sale of the Covington property, including any attack on the validity of the judgment of possession issued therein, within seven days from the day on which the last publication of notice of the application for authority to consummate the sale appeared, but in no event, more than thirty days from the date of service of the petition. Additionally, Matthews requested that after due proceedings, she be authorized to consummate the sale of the Covington property for the price and on the terms and conditions set forth in the agreement for the purchase and sale of the property.
Thereafter, the Coffer defendants filed a motion to consolidate the two actions pending in the 22nd JDC and filed an answer and a third-party and reconventional demand to Edna's possessory action. In answering the petition, the Coffer defendants asserted that the judgment of possession was valid and final; said judgment of possession did not constitute a disturbance of Edna's peaceful possession, because she did not have a right of possession of the property; by way of the judgment of possession, they were collectively owners of eighty percent of the Covington property, with the remaining twenty percent that otherwise would have gone to Walter being held by Matthews as the provisional administratrix because of Walter's indebtedness to the succession in an amount exceeding the value of his twenty percent interest; and Edna had no legal or equitable interest in the Covington property.
The Coffer defendants also filed a third-party and reconventional demand, naming Walter as a third-party defendant and Edna as defendant in reconvention. The Coffer defendants asserted that Walter and Edna purported to be possessors of the Covington property, which purported possession and claim of possession was a cloud on the title to the property. The Coffer defendants asserted that the Covington property had been sold at auction, but because of the present litigation, the Coffer defendants and Matthews could not convey clear title to the Covington property to the purchaser. As such, they alleged that they were unable to conclude the act of sale in accordance with the auction. Accordingly, the Coffer defendants requested that the 22nd JDC issue a judgment, dismissing with prejudice Edna's possessory action in docket number 2016-10267; declaring that neither Walter nor Edna have any legal or equitable interest in the Covington property and declaring that neither Walter nor Edna, or anyone else acting under the purported title or right of Walter or Edna, have any right to possess or occupy the Covington property; ordering Walter, Edna and anyone possessing the Covington property under the purported title or possessory right of Walter and Edna to vacate the property; and ordering Walter and Edna to file no further actions that would have the intent or would have the effect of clouding the title on the Covington property or in any manner stopping, delaying, or inhibiting the sale of the Covington property by the Coffer defendants and Matthews.
Following the 22nd JDC's consolidation of the action in docket number 2005-12893, seeking a declaratory judgment, with the possessory action filed in docket number 2016-10267, Walter and Edna filed exceptions to the Coffer defendants' petition in reconvention and third-party demand. Walter and Edna asserted that the Coffer defendants' claim that "neither Walter nor Edna have any legal or equitable interest in the property nor do they have any right to possession of the property" was ambiguous and vague. They also asserted that the Coffer defendants failed to state a cause of action with regard to removing a cloud from title to the Covington property, because there was no cloud alleged to be on the public records, no prayer that any cloud be removed from the public records, and adverse possession is not a cloud on title. Finally, they asserted that to the extent that the Coffer defendants' pleading sought any relief for or on behalf of the succession, the succession representative, and not the Coffer defendants, had a right of action.
Additionally, on May 23, 2016, Walter filed an answer to the Coffer defendants' third-party demand and reconventional demand. In answering the third-party demand, Walter asserted that the judgment of possession relied on by the Coffer defendants is absolutely null, because one of the parties, Clare, died while the action was pending appeal, and there was no substitution of parties. As such, Walter asserted that the Coffer defendants have no record title to the Covington property. Furthermore, in his reconventional demand, Walter asserted a possessory action, seeking a judgment recognizing his right to possession of the Covington property, permanently enjoining the Coffer defendants and their agents from interfering with his possession or possessory rights, awarding him damages, and casting the Coffer defendants with all costs of the proceeding.
The Coffer defendants answered Walter's reconventional demand, stating that Walter had not adversely possessed or acquisitively prescribed against the titles of the Coffer defendants, since he did not have peaceful possession of the property for the requisite amount of time to have acquisitively prescribed. Further, the Coffer defendants asserted that Walter, as a co-owner, was a precarious possessor.
The consolidated cases proceeded to trial in the 22nd JDC on July 7, 2016. At the close of Walter and Edna's case, the Coffer defendants moved for an involuntary dismissal with regard to Walter and Edna's possessory actions, which the court granted. The trial court stated that it was not revisiting its prior rulings granting motions for partial summary judgment as to Edna's claim for damages and injunctive relief in docket number 2005-12893. The court also requested post-trial memoranda on the Coffer defendants' request to evict Walter and Edna from the Covington property and Walter and Edna's claim regarding the validity of the judgment of possession. With regard to Edna's claim of ownership of the movables at the Covington property, the court noted that the Coffer defendants stipulated that they no longer asserted a claim to those movables.
Thereafter, the 22nd JDC signed a judgment on July 22, 2016, denying Edna's petition in docket number 2005-12893 with prejudice and denying Edna's petition in 2016-10267, entitled Possessory Action. The court granted the Coffer defendants' third-party and reconventional demand, declaring that neither Walter nor Edna have any legal or equitable interest in the Covington property nor do they have any right to possess or occupy the property; ordering that Walter and Edna vacate the property within forty-eight hours of rendition of judgment; and ordering Walter and Edna to file no further actions or pleadings that would have the intent or effect of clouding the title on the property or in any manner stopping, delaying, or inhibiting the sale of the property. The court also found the judgment of possession to be valid and denied Edna's petition to annul said judgment. The court specifically noted that its judgment as to the validity of the judgment of possession was in response to both Edna's petition and the Coffer defendants' third-party and reconventional demand and, accordingly, is binding on both Walter and Edna. The court assessed all costs in the consolidated matter against Walter and Edna.
The 22nd JDC subsequently signed another judgment on August 11, 2016 identical to the July 22, 2016 judgment, except that it contained an additional paragraph recognizing Walter and Edna as the owners of the movables at the Covington property. Walter and Edna now appeal from the July 22, 2016 and August 11, 2016 judgments of the 22nd JDC.
DISCUSSION
Amended Judgment
Louisiana Code of Civil Procedure article 1951 provides that a final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party to alter the phraseology of the judgment, but not the substance, or to correct errors of calculation. A judgment may be amended by the court where the judgment takes nothing from or adds nothing to the original judgment. McGee v. Wilkinson, 03-1178 (La.App. 1 Cir. 4/2/04), 878 So.2d 552, 554. However, an amendment to a judgment which adds to, subtracts from, or in any way affects the substance of the judgment, is considered a substantive amendment. Starnes v. Asplundh Tree Expert Company, 94-1647 (La.App. 1 Cir. 10/6/95), 670 So.2d 1242, 1246. Substantive amendments to judgments can be made only after a party has successfully litigated a timely application for new trial, an action for nullity, or a timely appeal. The Louisiana Supreme Court has also recognized that, on its own motion, and with the consent of the parties, the trial court may amend a judgment substantively. Villaume v. Villaume, 363 So.2d 448, 450 (La. 1978); Frisard v. Autin, 98-2637 (La.App. 1 Cir. 12/28/99), 747 So.2d 813, 818, writ denied, 00-0126 (La. 3/17/00), 756 So. 2d 1145.
As previously noted, the 22nd JDC signed a judgment prepared by the Coffer defendants' counsel on July 22, 2016, denying Edna's petition in docket number 2005-12893 with prejudice and denying Edna's petition in 2016-10267, entitled Possessory Action. The trial court granted the Coffer defendants' third-party and reconventional demand, declaring that neither Walter nor Edna had any legal or equitable interest in the Covington property nor did they have any right to possess or occupy the property; ordering that Walter and Edna vacate the property within forty-eight hours of rendition of judgment; and ordering Walter and Edna to file no further actions or pleadings that would have the intent or effect of clouding the title on the property or in any manner stopping, delaying, or inhibiting the sale of the property. The court also found the judgment of possession to be valid and denied Edna's petition to annul said judgment. The court specifically noted that its judgment as to the validity of the judgment of possession was in response to both Edna's petition and the third-party and reconventional demand and accordingly, was binding on both Walter and Edna. The trial court assessed all costs in the consolidated matters against Walter and Edna. As such, the July 22, 2016 judgment was a final judgment. See LSA-C.C.P. art. 1841.
However, the 22nd JDC subsequently signed another judgment on August 11, 2016, also prepared by the Coffer defendants' counsel, identical to the July 22, 2016 judgment, except that it contained an additional paragraph recognizing Walter and Edna as the owners of the movables at the Covington property. This judgment purportedly reflects the court's finding, as expressed at the trial of this matter and in the court's written reasons for judgment, that the Coffer defendants had stipulated they were no longer claiming ownership of the movables at the Covington property and that the movables had been turned over to Walter and Edna.
Because the August 11, 2016 judgment added to the July 22, 2016 judgment, by ordering that Walter and Edna be recognized as owners of the movables, it is clearly a substantive amendment. And, while the August 11, 2016 judgment may have been an attempt by the court to correct an omission from the previous judgment, LSA-C.C.P. art. 1951 does not permit the trial court to substantively alter a final judgment, even if the amendment conforms to the trial court's reasons for judgment or expresses the trial court's actual intention. See McGee, 878 So.2d at 554; Wells v. Wells, 14-198 (La.App. 5 Cir. 9/24/14), 150 So.3d 907, 908. Therefore, because neither Walter nor Edna filed a motion for new trial in reference to the July 22, 2016 judgment, nor did the parties consent to the substantive amendment, the August 11, 2016 judgment is absolutely null and without effect. See Frisard, 747 So. 2d at 819 (recognizing that when a trial court substantively amends a judgment without recourse to the proper procedure, the amended judgment is an absolute nullity); see also Rodgers v. Rodgers, 26,093 (La.App. 2 Cir. 9/21/94), 643 So.2d 764, 766. Accordingly, we find the August 11, 2016 judgment is null and void, and we hereby vacate that judgment. See Mack v. Wiley, 07-2344 (La.App. 1 Cir. 5/2/08), 991 So.2d 479, 486, writ denied, 08-1181 (La. 9/19/08), 992 So.2d 932. However, because Walter and Edna filed a motion to appeal from both the July 22, 2016 and August 11, 2016 judgments, we will consider their assignments of error as related to the July 22, 2016 judgment.
Possessory Action regarding Immovable Property
A possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted. LSA-C.C.P. art. 3655. To maintain the possessory action, the possessor must allege and prove that: 1) he had possession of the immovable property at the time of the disturbance; 2) he and his ancestors in title had possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; 3) the disturbance was one in fact or in law, as defined in LSA-C.C.P. art. 3659; and 4) the possessory action was instituted within a year of the disturbance. LSA-C.C. art. 3658; Lambert Gravel Company, Inc. v. Parish of West Feliciana, 15-1225 (La.App. 1 Cir. 9/20/16), ___ So.3d ___, ___.
A possessor for purposes of the possessory action is a person who has corporeal possession of immovable property and possesses for himself. See LSA-C.C.P. art. 3660; see also Poirrier v. Dale's Dozer Service, Inc., 99-2593 (La.App. 1 Cir. 11/3/00), 770 So.2d 531, 535. The requisite possession to entitle one to bring the possessory action is identical to the possession that is required to commence the running of acquisitive prescription; namely, possession must be continuous, uninterrupted, peaceable, public, and unequivocal. Poirrier, 770 So.2d at 535; see also LSA-C.C. art. 3476.
In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue. LSA-C.C.P. art. 3661. Accordingly, no evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove: (1) the possession thereof by a party as owner; (2) the extent of the possession thereof by a party; or (3) the length of time in which a party and his ancestors in title have had possession thereof. LSA-C.C.P. art. 3661. When, except as provided in Article 3661(l)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action. LSA-C.C.P. art. 3657; Lambert Gravel Company, Inc., ___ So.3d at ___.
Thus, the exceptions in LSA-C.C.P. art. 3661 (l)-(3) recognize a party's right to introduce evidence of ownership to prove his possession as owner, the extent of his possession, or the length of time he and his ancestors in title have had possession of the property. Goal Properties, Inc. v. Prestridge, 15-225 (La.App. 3 Cir. 10/7/15), 177 So.3d 126, 129. In these circumstances, ownership is not an issue to be adjudicated, but is alleged simply to make the pleadings broad enough to permit proof concerning the nature and extent of the possession. Union Bank v. Roy, 248 La. 801, 804, 182 So.2d 319, 320 (1965). Further, it takes more than an allegation of ownership in defendant's answer to convert that action into a petitory action. There must be a prayer by the defendant for such an adjudication of ownership. In the absence of such a prayer the action is not converted. Union Bank, 182 So.2d at 320; Dardar v. Fanguy, 07-0028, p. 2 (La.App. 1 Cir. 2/20/08) (unpublished).
In the instant case, there is no dispute that Walter and Edna filed pleadings asserting possessory actions against the Coffer defendants. Walter and Edna, however, assert that in answering their possessory actions and filing a reconventional demand, the Coffer defendants alleged and asserted title and ownership in themselves, thereby converting the possessory actions into petitory actions and judicially confessing the possession of Walter and Edna. In answering Edna's possessory action, the Coffer defendants asserted that they are "owners of 80% of the referenced property" by way of a judgment of possession rendered in the CDC and that the judgment of possession "properly recognizes [their] ownership." The Coffer defendants further answered that "Edna ... has no legal or equitable interest" in the Covington property. Additionally, in their third-party and reconventional demand, the Coffer defendants again asserted their ownership of 80% of the Covington property. The Coffer defendants asserted that the claims of possession by Walter and Edna constituted a "cloud on the title" of the Covington property and alleged that neither Walter nor Edna had any legal or equitable interest in the property and did not have any right to possession of the property. The Coffer defendants prayed that Edna's possessory action be dismissed and sought a declaration that neither Walter nor Edna "have any legal or equitable interest in the [Covington] Property" and that neither Walter nor Edna "nor anyone else acting under the purported title or right of [Walter] or [Edna] have any right to possess or occupy the [Covington] Property."
From our reading of these pleadings in their entirety, it is clear that the Coffer defendants did not raise ownership as an issue to be adjudicated by the 22nd JDC. The Coffer defendants did not pray that they be declared the owners of the Covington property and they introduced evidence only to prove their possession as owners and the extent of their possession. The Coffer defendants managed "to walk [the] fine line between asserting possession as owner and asserting ownership, and thereby converting a possessory action into a petitory action." See Goal Properties, 177 So.3d at 129. Accordingly, we find that Edna's possessory action was not converted from a possessory action to a petitory action. Further, because possession had already been decided in the CDC, placing the Coffer defendants in possession, and which judgment of possession is a final judgment, we find no error in the involuntary dismissal of Edna's possessory action by the trial court.
This court previously addressed whether a possessory action filed by Walter was converted to a petitory action by Matthews in her answer to that action, wherein she made statements regarding the succession's ownership. See Horrell, 10-1694 at p. 5. However, this court determined that "[u]ntil the property is partitioned or a judgment of possession is executed, [the property] remains in the succession and is co-owned in indivision by Mr. Horrell's five children." Id. Accordingly, this court found given the facts before it at that time, that even if the matter had been converted to a petitory action, there was nothing further to prove to establish ownership of the property. Id. Further, since the time of the prior Horrell decision, as noted above, a judgment of possession has been entered, and the Coffer defendants have sold the Covington property to a third party.
Coffer Defendants' Third-Party and Reconventional Demand
Walter and Edna assert that the 22nd JDC also erred in granting the Coffer defendants' third-party and reconventional demand that declared that neither Walter nor Edna have any legal or equitable interest in the Covington property, ordered that Walter and Edna and anyone possessing or occupying the Covington property under the purported title or right of Walter and Edna vacate the property within forty-eight hours of rendition of judgment, and ordered Walter and Edna to file no further actions or pleadings that would have the intent or would have the effect of clouding the title on the Covington property.
For the same reasons that we determined that the 22nd JDC was legally correct in granting the involuntary dismissal of Edna's possessory action, we also find no error in the 22nd JDC's judgment that granted the Coffer defendants' third-party and reconventional demand.
Validity of Judgment of Possession
In answering the Coffer defendants' third-party demand, Walter placed before the court the issue of whether the judgment of possession rendered in the CDC was an absolute nullity, because one of the parties to the judgment, Clare, died pending the appeal of that judgment and a proper party was not substituted for her. The Coffer defendants waived all exceptions and agreed that the 22nd JDC should decide the issue as to the nullity of the judgment of possession.
We note that Edna also raised the nullity issue in her possessory action and in her answer to the reconventional demand filed by the Coffer defendants. However, as this court has previously noted, a party who is not an heir to a succession does not have standing to assert the nullity of a judgment of possession. See Guidry v. Dufrene, 96-0194 (La.App. 1 Cir. 11/8/96), 687 So.2d 1044, 1046.
It is well established law that a judgment for or against a deceased person is an absolute nullity. White v. Givens, 491 So.2d 63, 64 (La.App. 1 Cir. 1986). In the instant case, there is no dispute that Clare, Edward's wife, died on November 14, 2011, which was following the rendition of the judgment of possession in the CDC and while the appeal was pending in the Fourth Circuit Court of Appeal. There is also no dispute that a proper party was not substituted for Clare following her death. As such, any portion of the judgment of possession in favor of Clare is an absolute nullity. See White, 491 So.2d at 64; see also Page v. Page, 98-1625 (La App. 1 Cir. 9/24/99), 762 So.2d 18, 19 n.1.
However, the Covington property and movables contained therein were Edward's separate property, and as such, Clare was not a party to the portion of the judgment of possession relating to that property. Therefore, we find the portion of the CDC judgment placing the Coffer defendants into possession of Edward's separate property, including the property at issue herein, to be valid, and, likewise, we find no error in the 22nd JDC's judgment upholding the validity of that portion of the judgment.
Declaratory Judgment Regarding Ownership of Movables
Edna also asserts that the trial court erred in dismissing her action under docket number 2005-12893, seeking a declaratory judgment that she is the owner of all corporeal movables located at the Covington property. These movables, as previously mentioned, are the subject of the judgment of possession rendered in the CDC. According to the record before us, Matthews filed an original and four supplemental and amending detailed descriptive lists listing the movable property at issue. Matthews forwarded these lists to Edna, along with letters advising her of her right to contest the listing of these movables by way of a traversal to the descriptive lists. However, rather than file a traversal to the descriptive lists in the succession proceeding in the CDC, Edna filed a separate suit asserting her ownership of the movables in the 22nd JDC. The judgment of possession, as previously noted, is now a final judgment.
While a judgment of possession is prima facie evidence of the right of the heirs in whose favor it is rendered to take possession of the decedent's estate, it is not conclusive evidence against persons having an adverse interest in or claim against the estate. Guidry v. Dufrene, 96-0194 (La.App. 1 Cir. 11/8/96), 687 So.2d 1044, 1046. Accordingly, Edna submitted evidence at the trial of this matter as to her ownership of the movables at the Covington property, which consisted of her own testimony.
In an effort to resolve the controversy with regard to the movables, the Coffer defendants repeatedly stated at trial that they no longer claimed the movables at the Covington property, stipulating to that effect and stating that they would quitclaim those movables to Edna. Edna even acknowledged that she would accept the quitclaim, if it was acceptable to her attorney, who is Walter. Walter, however, refused to accept the Coffer defendants' offer, because he wanted to establish ownership at the time of the inventory, presumably to support Edna's tort claim for malicious inventory. However, as noted by the 22nd JDC during the trial of the declaratory judgment action, Edna's tort action had been previously dismissed pursuant to a motion for partial summary judgment and was no longer before the court for consideration.
Accordingly, from our review of the record, we find that the issue of ownership as to the movables at the Covington property was no longer a justiciable controversy, as the Coffer defendants stipulated that they no longer claimed ownership of those movables and would quitclaim them to Edna. See Steiner v. Reed, 10-1465 (La.App. 1 Cir. 2/11/11), 57 So.3d 1188, 1192 (finding that in the context of a declaratory judgment action, a justiciable controversy must involve uncertain or disputed rights in an immediate and genuine situation, and must be a substantial and actual dispute as to the legal relations of parties having real, adverse interests). Therefore, while we find no error in the trial court's judgment dismissing her petition in docket number 2005-12893, seeking a declaratory judgment that she is the owner of all corporeal movables located at the Covington property, we amend the court's judgment to reflect the Coffer defendants' stipulation that Edna is recognized as now owning the movables at the Covington property.
Motions for Partial Summary Judgment
Finally, Edna appeals from the 22nd JDC's partial final judgments granting summary judgment in favor of Matthews and Barrios and dismissing Edna's request for injunctive relief and damages for her tort claims in docket number 2005-12893. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B.
This court previously determined that these judgments were not final judgments and dismissed the appeals, finding that the parties had an adequate remedy by review on appeal after final judgment. Horrell, 12-2054 at p. 4, and Horrell, 12-2055 at p. 4. As this matter is now before us on an unrestricted appeal following rendition of a final judgment, we will review these interlocutory judgments. See Rogillio v. Avizent and SNL Distribution Services Corp., 15-1657 (La. App. 1st Cir. 6/3/16), 196 So.3d 710, 712 n.3.
The hearings on the motions for partial summary judgment were held on September 29, 2011, and July 26, 2012, prior to the effective date of the 2012 (and subsequent 2013, 2014 and 2015) amendments to LSA-C.C.P. art. 966. Accordingly, all references to LSA-C.C.P. art. 966 in this opinion are to the version in effect at the time of the hearings on the motions for partial summary judgment. See Woodlands Development, L.L.C. v. Regions Bank, 13-226 (La.App. 5 Cir. 10/29/14), 164 So.3d 226, 227-30.
On a motion for summary judgment, the burden of proof is on the mover. If the moving party will not bear the burden of proof at trial on the matter, that party's burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. LSA-C.C.P. art. 966C(2); Robles v. ExxonMobile, 02-0854 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341. An appellate court's review of a summary judgment is de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. R.G. Claitor's Realty v. Rigell, 06-1629 (La.App. 1 Cir. 5/4/07), 961 So.2d 469, 471-72, writ denied, 07-1214 (La. 9/21/07), 964 So.2d 340.
With regard to Edna's claim for injunctive relief, we note that Edna sought to enjoin Matthews and Barrios from harassing her or disturbing her peaceable possession of her movables, making any claims of ownership regarding her movables, or examining, inventorying, appraising, or interfering with her movables. The inventory and appraisal of the movables at the Covington property was conducted on July 18, 2007. Therefore, because the purpose of the injunctive relief sought was to prevent future conduct, i.e., examining, inventorying, or appraising the movables, and the act sought to be enjoined has already taken place, there can be no ground for an injunction and the issue is moot. See Felder v. Political Firm, L.L.C., 14-1266 (La.App. 1 Cir. 4/24/15), 170 So.3d 1022, 1027.
Furthermore, with regard to Edna's request for injunctive relief seeking to enjoin Matthews from disturbing her peaceable possession of movables and making any claim of ownership as to the movables at the Covington property, we note that following the July 18, 2007 inventory, Matthews filed a third and fourth amended detailed descriptive list in the succession proceeding in the CDC, listing the movables as assets of the succession. The Coffer defendants were subsequently placed in possession of the movables at the Covington property pursuant to the judgment of possession rendered in the CDC, and, as noted above, the Coffer defendants have stipulated that Edna is now recognized as owner of those movables. Accordingly, Edna's request for injunctive relief seeking to enjoin Matthews from making claims of ownership regarding the movables is likewise moot. See Felder, 170 So.3d at 1027.
Finally, with regard to Edna's tort claim for "malicious inventory," Matthews and Barrios sought summary judgment claiming that Edna was unable to establish that any conduct of Matthews or Barrios in inventorying the movable property at the Covington property was extreme, outrageous, or malicious or that she suffered any damages, particularly emotional distress, as a result thereof. In support of their motion, Matthews and Barrios submitted a November 6, 2002 judgment rendered in the CDC, wherein the CDC found that "[t]here are household furnishings situated [at the Covington property] that belong to the succession, including, but not limited to, a cabinet, sofa and 4 chairs" and ordered that "[Matthews] establish the July 9, 1993 value of the household furnishings situated [at the Covington property] that were inherited by [Edward] and which were owned by [Edward] at the time of his death including, but not limited to, a cabinet, a sofa, and 4 chairs, and the value thereof is to be listed as separate property on an amended descriptive list." (Emphasis added.) Matthews and Barrios also submitted a November 29, 2004 order from the CDC appointing Barrios as notary to take an inventory of Edward's household furnishings located at the Covington property; a May 26, 2005 judgment rendered in the CDC granting Matthews' motion to compel inventory and appraisal and decreeing that Barrios was "charged with the duty of conducting an inventory of moveable property of the deceased located at [the Covington property]" and "shall communicate with [Walter] to select a mutually agreeable date and time for the inventory and appraisal to take place;" and a procès verbal of inventory, wherein Barrios stated that the inventory was conducted on July 18, 2007, and "[b]ecause we did not know precisely which moveable property belonged to the deceased—a determination which I understand will ultimately be made by this Court—we were instructed by the Administratrix to inventory and appraise as much of the moveable property as possible" and noted that the "appraisal and inventory were conducted under very tense conditions and an adversarial atmosphere" and that Walter was openly hostile to and tried to intimidate appraisers.
Accordingly, Matthews and Barrios presented evidence establishing that their actions in conducting the July 18, 2007 inventory of the movables at the Covington property pursuant to authority of the CDC were reasonable, and as such, pointed out that Edna was unable to establish that their actions were extreme, outrageous, or malicious. Therefore, the burden shifted to Edna to produce evidence sufficient to establish that she would be able to meet her burden of proving at trial that the actions of Matthews and Barrios constituted a malicious inventorying of her movables and that she suffered damages as a result thereof.
Edna asserts that this court's prior decision in Matthews, 977 So.2d at 73, supports her contention that Matthews and Barrios maliciously inventoried her movables at the Covington property. In Matthews, this court was called upon to review a judgment ordering eviction of Edna and Walter from the Covington property. Matthews, 977 So. 2d at 71. In our opinion, this court noted that "Matthews testified that because she did not know what movables in [Walter and Edna's] possession belonged to [Edward], she intended to inventory and appraise all movables on the premises they occupied (allegedly under the direction of the [CDC] judge)." Matthews, 977 So.2d at 73. In a footnote, this court noted that the CDC order filed into evidence did not so state, and that no other proof was submitted that it was the intent of the CDC to extend its prior order in such a manner. Id. This language, however, is dicta, as it had no bearing on the issue before the court at that time, which was an eviction proceeding. As such, this court's prior statements regarding the interpretation of the CDC judgment and the authority conferred thereby are not binding on this court in the instant appeal. See Alpine Meadows, L.C. v. Winkler, 49,490 (La.App. 2nd Cir. 12/10/14), 154 So.3d 747, 757, writ denied, 15-0292 (La. 4/24/15), 169 So.3d 357.
In opposing the motion for partial summary judgment, the only evidence offered by Edna were several affidavits, executed by her, wherein she listed movable property at the Covington property that she claimed ownership of and stated that she had been in possession of same for many years. However, Edna failed to produce any evidence that Matthews or Barrios knew at the time of the inventory which movables at the Covington property belonged to Edward and which movables belonged to Edna, as that issue was hotly contested among the parties. See Williams' Heirs v. Zengel, 117 La. 599, 611 (La. 1906), 42 So. 153, 157 (recognizing an action against an administrator founded on his having acted maliciously in causing property to be inventoried as belonging to the succession when he knew that it did not belong to the succession but to another party). Furthermore, Edna failed to produce any evidence as to any damage that she sustained as a result of any action taken by Matthews or Barrios. Therefore, from our review of the record, we find no error in the judgments of the 22nd JDC granting summary judgment in favor of Matthews and Barrios and dismissing Edna's tort claims and request for injunctive relief.
CONCLUSION
For the foregoing reasons, we vacate the August 11, 2016 judgment; we affirm the July 22, 2016 judgment dismissing Walter and Edna's possessory actions; we affirm that part of the July 22, 2016 judgment upholding the validity of the judgment of possession rendered in the CDC; we affirm that part of the July 22, 2016 judgment dismissing Edna's petition in docket number 2005-12893 seeking a declaratory judgment, but amend the judgment to reflect that Edna is recognized as now owning the movables at the Covington property; and we affirm the August 8, 2012 judgment, granting summary judgment in favor of Matthews and Barrios and dismissing Edna's tort claims, and the August 16, 2012 judgment granting summary judgment in favor of Matthews and Barrios and dismissing Edna's request for injunctive relief. All costs of this appeal are assessed against Walter J. Horrell and Edna R. Horrell.
AUGUST 11, 2016 JUDGMENT VACATED; JULY 22, 2016 JUDGMENT AMENDED IN PART, AND, AS AMENDED, AFFIRMED; AUGUST 8, 2012 JUDGMENT AFFIRMED; AUGUST 16, 2012 JUDGMENT AFFIRMED. GUIDRY, J., dissents in part and assigns reasons. GUIDRY, J., dissenting in part.
I respectfully disagree with the majority's decision to affirm the involuntary dismissal of Walter and Edna's possessory actions and the granting of the Coffer defendants' third-party and reconventional demand. In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue. Accordingly, no evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove: (1) the possession thereof by a party as owner; (2) the extent of the possession thereof by a party; or (3) the length of time in which a party and his ancestors in title have had possession thereof. La. C.C.P. art. 3661. When, except as provided in Article 3661(1)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action. La. C.C.P. art. 3657; Lambert Gravel Company, Inc., 15-1225 at pp. 14-15, ___ So. 3d at ___.
In answering Edna's possessory action, the Coffer defendants asserted that they are "owners of 80% of the referenced property" by way of a judgment of possession rendered in the CDC and that the judgment of possession "properly recognizes [their] ownership." The Coffer defendants further answered that "Edna ... has no legal or equitable interest" in the Covington property. Additionally, in their third-party and reconventional demand, the Coffer defendants again asserted their ownership of 80% of the Covington property. The Coffer defendants named Walter as a third-party defendant and named Edna as a defendant in reconvention. The Coffer defendants asserted that the claims of possession by Walter and Edna constitute a "cloud on the title" of the Covington property and alleged that "as shall be more fully established by the evidence at trial, neither [Walter] nor [Edna] have any legal or equitable interest in the property nor do they have any right to possession of the property." The Coffer defendants prayed that Edna's possessory action be dismissed and sought a declaration that neither Walter nor Edna "have any legal or equitable interest in the [Covington] Property" and that neither Walter nor Edna "nor anyone else acting under the purported title or right of [Walter] or [Edna] have any right to possess or occupy the [Covington] Property."
Reading these pleadings in their entirety, it is clear that the Coffer defendants raised ownership as an issue to be adjudicated by the 22nd JDC. See Voison v. Luke, 234 So. 2d 862, 864 (La. App. 1st Cir. 1970) (finding that the entire answer of a defendant in a possessory action must be taken into consideration in determining whether the answer converted the action to a petitory action). The Coffer defendants' answer to Edna's possessory action and their third-party and reconventional demand specifically asserted their ownership of the Covington property and prayed for a declaration that neither Edna nor Walter have a legal or equitable interest in the property in addition to a declaration that neither Edna nor Walter, or anyone acting under their purported title, have a right to possess the Covington property. While the Coffer defendants did not specifically pray that they be declared the owners of the Covington property, their assertion of ownership read in conjunction with their request for a declaration that Edna and Walter have no legal interest in the property (separate and apart from a declaration regarding their possession) clearly presents ownership as an issue to be adjudicated by the trial court. Union Bank v. Roy, 248 La. 801, 804 (1965), 182 So. 2d 319, 320 (finding that in a possessory action, it takes more than an allegation of ownership in a defendant's answer to convert the action into a petitory action; there must also be a prayer by the defendant for an adjudication of ownership); see also Dardar v. Fanguy, 07-0028, p. 3 (La. App. 1st Cir. 2/20/08) (unpublished opinion) (noting that in cases where a defendant, in a reconventional demand, expressly asserts ownership and requests that he shall be declared the owner of the disputed property, the jurisprudence consistently reflects that such a claim goes beyond a showing of possession allowed by the exception in La. C.C.P. art. 3661 and raises or interjects the issue of ownership sufficient to convert the action to a petitory action). Therefore, Edna's possessory action was converted from a possessory action to a petitory action and the Coffer defendants judicially confessed Edna's possession. See La. C.C.P. art. 3657.
Furthermore, in filing a third-party demand against Walter, whereby the Coffer defendants asserted their ownership of the Covington property by virtue of the judgment of possession rendered in the CDC and sought a declaration that Walter did not have any legal interest in the property, the Coffer defendants instituted a petitory action against Walter. See La. C.C.P. art. 3651.
This court previously addressed whether a possessory action filed by Walter was converted to a petitory action by Matthews in her answer to that action, wherein she made statements regarding the succession's ownership. See Horrell, 10-1694 at p. 5. However, this court determined that "[u]ntil the property is partitioned or a judgment of possession is executed, [the property] remains in the succession and is co-owned in indivision by Mr. Horrell's five children." Horrell, 10-1694 at p. 5. Accordingly, this court found given the facts before it at that time, that even if the matter had been converted to a petitory action, there was nothing further to prove to establish ownership of the property. Horrell, 10-1694 at p. 5. However, since the time of the prior Horrell decision, as noted above, a judgment of possession has been entered and the Coffer defendants have sold the Covington property to a third party. --------
Accordingly, because the 22nd JDC tried these matters as possessory actions, the court erred as a matter of law. See Goal Properties, Inc. v. Prestridge, 15-225, pp. 5-6 (La. App. 3rd Cir. 10/7/15), 177 So. 3d 126, 129. Therefore, I would reverse the trial court's judgment and remand this matter to the 22nd JDC so that the actions may be tried as petitory actions in accordance with La. C.C.P. art. 3653.
Furthermore, because the 22nd JDC legally erred in trying the petitory actions as possessory actions, I would also reverse the portion of trial court's judgment granting the Coffer defendants' third-party and reconventional demand and would remand for reconsideration of these issues in conjunction with the trial of the petitory actions.