Tannerv.Morgan

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUITJul 10, 2019
NUMBER 2018 CA 1719 (La. Ct. App. Jul. 10, 2019)

NUMBER 2018 CA 1719

07-10-2019

LATHIN TANNER v. EVELYN TANNER MORGAN, WILLIE MORGAN, THE SUCCESSION OF MAYOLA TANNER, THE SUCCESSION OF MEARN TANNER, MILDRED CYPRIAN IN HER OFFICIAL CAPACITY AS CLERK OF COURT OF THE PARISH OF ST. HELENA

Brandon J. DeCuir Baton Rouge, LA Counsel for Plaintiff/Appellant Lathin Tanner A. Shelby Easterly, III Denham Springs, LA Counsel for Defendants/Appellees Evelyn Tanner Morgan and Willie Morgan


Appealed from the Twenty-First Judicial District Court In and for the Parish of St. Helena State of Louisiana
Suit Number 23494 Honorable Charlotte Foster, Presiding Brandon J. DeCuir
Baton Rouge, LA Counsel for Plaintiff/Appellant
Lathin Tanner A. Shelby Easterly, III
Denham Springs, LA Counsel for Defendants/Appellees
Evelyn Tanner Morgan and Willie
Morgan BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. GUIDRY, J.

Plaintiff, Lathin Tanner, appeals from a trial court judgment granting summary judgment in favor of defendants, Evelyn and Willie Morgan, decreeing that Evelyn and Willie are in legal possession of property at issue. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On October 3, 2017, Lathin Tanner filed a Petition for Preliminary, Permanent Injunctive Relief and Cancellation of Donation from the Conveyance Records of the Clerk of Court. Tanner named as defendants his sister, Evelyn Tanner Morgan; her husband, Willie Morgan; the Succession of Mayola Tanner, represented by appointed administratrix, Evelyn Tanner Morgan; the Succession of Mearn Tanner, represented by appointed administratrix, Evelyn Tanner Morgan; and Mildred Cyprian, in her capacity as the Clerk of Court and Recorder for St. Helena Parish. Tanner alleged that he had acquired a certain tract of land, more fully described as: "A certain piece or parcel of land measuring 100 feet East and West by 50 feet North and South, subject to the right of way for La. Hwy. #449, located in the Southeast corner of a 17.25 acre tract of land in Section 53, T3S, R5E, St. Helena Parish, Louisiana, together with all buildings and improvements thereon." Tanner alleged that he has maintained continuous ownership of said parcel, including all areas around the store, since his acquisition in 1993.

Tanner asserted that he allowed Evelyn Morgan to use the premises, including all movable property, as a grocery store. However, Tanner asserted that Evelyn Morgan employed a surveyor to survey the tract owned by Tanner and after receiving the survey, recorded a donation with the clerk of court allegedly transferring the property from Mearn and Mayola Tanner to her. Tanner alleged that Evelyn Morgan has attempted to take acts on the property contrary to their verbal agreement, including placing the property for sale and entering into a sublease agreement without the permission and knowledge of Tanner. Accordingly, Tanner sought cancellation of the donation, as Mearn and Mayola Tanner no longer owned the property and he, as owner, had not caused a transfer or sale of his property. Tanner also sought injunctive relief, preventing defendants continued interference with the peaceful possession and ownership by Tanner.

Thereafter, on November 14, 2017, defendants answered Tanner's petition and Evenlyn Morgan, Willie Morgan, and their limited liability company, M&M Community Grocery and Deli (M&M), filed a reconventional demand and petition of intervention. The Morgans and M&M alleged the possession as owners of two tracts of land, including the buildings and improvements thereon, one of which is the same tract described in Tanner's petition. The Morgans asserted they received possession of these parcels from Mearn and Mayola Tanner on or about June 2, 2010, and they, along with M&M, have possessed as owner each of these two tracts or parcels of property with the improvements thereon and any movable property associated therewith from on or about June 2, 2010 to the present. The Morgans and M&M asserted that Mearn and Mayola Tanner possessed the property as owners from October 3, 1980 to June 2, 2010, and that they have continued their predecessor's possession as owners of the described parcels of property and the buildings and improvements thereon quietly and without interruption for more than one year immediately prior to October 18, 2017, when Tanner disturbed their possession by posting a notice of eviction on the store building. The Morgans and M&M asserted that Tanner never had possession of the parcels at issue and had not asserted an interest in or to the parcels or improvements thereon until the death of Mayola Tanner on June 22, 2017. Accordingly, they asserted a possessory action, seeking to be maintained in their peaceable possession of the described parcels and also sought injunctive relief.

The Morgans and M&M stated that in the months prior to their filing of the reconventional demand and intervention, M&M had leased the property to Tam-Tam's General Store, LLC. --------

On December 29, 2017, Tanner answered the reconventional demand and petition of intervention, asserting that he has just and better title to the described property and that he is the owner of the described property. Tanner also raised peremptory exceptions, asserting that the Morgans and M&M had failed to state a cause of action, right of action, and/or claim against him upon which relief may be granted.

The Morgans and M&M filed a motion for partial summary judgment on May 3, 2018, asserting that there is no genuine issue of material fact regarding their possession, because Tanner judicially confessed such possession, and therefore, they are entitled to partial summary judgment recognizing their possession of the property at issue. The Morgans and M&M asserted that Tanner, as defendant in reconvention, claimed ownership in response to their reconventional demand and therefore, in accordance with La. C.C.P. art. 3657, judicially confessed possession when he stated in his answer that he "is the owner of the subject parcel, and moved to evict the current occupants."

Tanner opposed the motion, asserting that the Morgans and M&M are precarious possessors and that the first notice he had of their intent to possess adversely and as owner came in the form of their answer, reconventional demand, and intervention to his principal filing. Tanner also refuted the contention that he judicially confessed possession, asserting that there is no evidence of a confession in the pleadings.

The trial court held a hearing on the motion for partial summary judgment on July 23, 2018. At the hearing, Tanner asserted that he had filed a declaratory action and sought injunctive relief, proving Tanner had better title. Following the hearing, the trial court signed a judgment granting summary judgment in favor of the Morgans and against Tanner, recognizing Tanner's judicial confession and decreeing that the Morgans are in legal possession of the described property. The trial court further ordered that Tanner had converted the action to a petitory action. The trial court ordered that there was no just reason for delay and decreed that the judgment was final. Tanner now appeals from the trial court's judgment.

DISCUSSION

On appeal, Tanner contends that the trial court erred in failing to consider his peremptory exceptions raising the objections of no cause of action and no right of action prior to ruling on the merits of the motion for partial summary judgment filed by the Morgans and M&M. Louisiana Code of Civil Procedure article 929(A) provides:

The declinatory exception, the dilatory exception, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case. [Emphasis added.]


In the instant case, Tanner filed his peremptory exceptions raising the objections of no cause of action and no right of action in his answer to the Morgans' reconventional demand and M&M's petition of intervention. These exceptions, however, were not set for hearing or tried prior to or at the time of the trial court's consideration of the Morgans' and M&M's motion for partial summary judgment. Accordingly, we find that the trial court erred in failing to conduct a trial on these exceptions prior to the hearing on the merits of the Morgans' and M&M's motion for partial summary judgment as mandated by La. C.C.P. art. 929(A).

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion. All costs of this appeal are assessed to Evelyn Tanner Morgan, Willie Morgan, and M&M Community Grocery and Deli, L.L.C.

REVERSED AND REMANDED.