Opinion
No. 14894.
June 29, 1982. Amended on Denial of Rehearing August 24, 1982.
APPEAL FROM THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE, STATE OF LOUISIANA, HONORABLE CLEVELAND J. MARCEL, SR., J.
Vallerie Oxner, Metairie, H. Minor Pipes, Jr., Houma, for plaintiff appellee.
Grady C. Weeks, Houma, for defendant appellant.
Before ELLIS, PONDER and SAVOIE, JJ.
In this suit, Terminix Pest Control Company, Inc. appeals the refusal of the trial judge to issue a preliminary injunction against its former employee, Leonce P. Boudreaux.
The judgment in this case is dated May 12, 1981, and notice thereof was sent out on May 27, 1981. A motion for appeal was filed on June 26, 1981, but the order was not signed. A second motion was filed and the appeal granted on July 10, 1981.
Ex proprio motu, this court notes that the appeal from a judgment granting or denying a preliminary injunction must be taken within fifteen days of the date of the order or judgment. (Code of Civil Procedure, Article 3612)
Since the present appeal was not taken within the time allotted under Article 3612, the appeal cannot stand and must, therefore, be dismissed.
We have also considered the possibility that all issues may have been effectively disposed of and that no trial on the merits is needed. However, the parties did not stipulate that all issues were to be decided at the preliminary injunction hearing. Without such a stipulation, we cannot allow a trial of a rule for preliminary injunction to replace a trial on the merits even though the merits may have been fairly treated by the trial court.
It is well settled in our jurisprudence that a trial court, in the absence of a stipulation to the contrary, cannot, upon denial of a preliminary injunction, dismiss the suit prior to full trial on the merits for a permanent injunction. Southwest Sales and Mfg. Co. v. Delta Exp., Inc., 342 So.2d 281 (La.App. 3rd Cir. 1977), writ refused (La. 1977), 345 So.2d 48; Arbour v. Total CATV, Inc., 400 So.2d 1155 (La.App. 1st Cir. 1981).
For the above and foregoing reasons, the appeal is dismissed and the case remanded for further proceeding. Appellant is to pay all costs. Appeal Dismissed and Case Remanded.