REVISED OPINION, March 11, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-30433
Summary Calendar
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E. DEMSEY PENDARVIS; MICHAEL DOHERTY
JARREAU; SUSAN McGRUEDER JARREAU,
Plaintiffs-Appellees,
versus
ORMET CORPORATION,
Defendant-Appellant.
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Appeal from the United States District Court for the
Middle District of Louisiana
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March 10, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal raises two issues, one an obscure point of
Louisiana civil procedure, and the other a more familiar question
of evidentiary sufficiency. The appellant, Ormet Corporation
(“Ormet”), argues first that the appellees, E. Dempsey Pendarvis,
Michael Doherty Jarreau, and Susan McGrueder Jarreau (“Pendarvis”)
were not entitled to damages stemming from the wrongful issuance of
a preliminary injunction in a Louisiana possessory action because
they judicially confessed that the injunction was not wrongfully
issued by filing a (successful) petitory action in the same case.
In the alternative, Ormet argues that the jury’s damage award was
clearly erroneous in the face of the record. Finding no merit in
either argument, we affirm.
I
This case arises out of a property dispute originally
litigated in Louisiana state court. In 1993, having recently
purchased certain real property in Ascension Parish, Pendarvis gave
notice to Ormet that it was illegally using a road located on the
extreme eastern edge of his land. Although well aware that the
road was indeed located on property within the record title of
Pendarvis, Ormet refused to stop using it. Ormet believed that it
had acquired actual title to the road through acquisitive
prescription because its employees had made use of the road for
over thirty years.
When Ormet refused to stop using the road, Pendarvis blocked
it and began building a fence down the record title boundary line.
On September 17, 1993, Ormet responded by filing a possessory
action in Louisiana state court. Ormet alleged that it had been in
possession of the road and that Pendarvis had disturbed that
possession by beginning construction of the fence. Ormet requested
that its “right” to possession be recognized, and that Pendarvis’s
disturbance of its possession be enjoined, both temporarily and
permanently. Ormet also requested, should it succeed on the
merits, that Pendarvis be ordered to file a petitory action to
establish ownership of the road within sixty days of the possessory
2
judgment becoming executory. On October 19, after an evidentiary
hearing, a preliminary injunction was issued.
After the injunction was issued, Pendarvis stopped
construction of the boundary line fence, and instead built a new
fence on the western side of the road. Unable to use the original
road, Pendarvis constructed a new road at another location in order
to reach the interior of the land. He also made several other
changes in his activities based on his exclusion from the original
road.
II
Prior to a trial on the merits in the possessory action,
Pendarvis instituted the instant petitory action, also in Louisiana
state court, and also with regard to the road. Pendarvis alleged
that he was the owner of the road and requested that Ormet be
ordered to surrender possession to him. He also requested damages
for the wrongful issuance of the preliminary injunction under La.
Code Civ. Proc. art. 3608. On Ormet’s motion, the case was removed
to the Federal District Court for the Middle District of Louisiana
pursuant to 28 U.S.C. § 1441.
Both before and during the trial, Ormet made repeated motions
to exclude evidence relevant to the damage claim and for judgment
as a matter of law on that claim. Ormet’s theory, then as now, was
that Pendarvis had judicially confessed that the preliminary
injunction in the possessory action was not wrongfully issued by
filing the petitory action (for reasons explained further below),
3
and therefore was not legally entitled to damages resulting from
the preliminary injunction as a matter of Louisiana law. The
district court denied all of Ormet’s motions. At the end of the
trial, the jury entered a verdict in favor of Pendarvis, finding
that he owned the road and that the preliminary injunction had been
wrongfully issued. In accordance with these findings, the jury
awarded Pendarvis $48,000 in damages, principally based on the cost
of construction of the second road. Pursuant to a Louisiana
statute, the district court then made an additional award of
$13,357.63 in attorneys’ fees, and, to enforce the jury’s verdict,
dissolved the preliminary injunction issued in the possessory
action. Ormet appeals this final judgment.
III
We review the district court’s construction of state law de
novo. Hart v. O’Brien, 127 F.3d 424, 450 (5th Cir. 1997). A
jury’s assessment of damages, on the other hand, will only be
reversed for clear error. Ham Marine, Inc. v. Dresser Indus., 72
F.3d 454, 462 (5th Cir. 1995).
IV
Ormet raises two issues on appeal in this diversity case.
First, Ormet contends that under Louisiana law Pendarvis judicially
confessed that the preliminary injunction was not wrongfully issued
by filing the petitory action. As such, Ormet argues that
Pendarvis was not entitled to damages stemming from the preliminary
injunction as a matter of Louisiana law. Based on the clear text
4
of the Louisiana Code of Civil Procedure and the time honored
precedent of Florance v. Nixon, 3 La. 289 (1832), we find no merit
to this argument. In the alternative, Ormet also argues that the
jury’s award of damages was clearly erroneous. Based on our review
of the record, we also find no merit to this contention.
A
Although the procedural question raised by this case is a
novel one, it enjoys this state chiefly because it incorporates a
contention wholly unsupportable in the light of longstanding
Louisiana authority. The essence of Ormet’s argument is that in
the case of a preliminary injunction issued pursuant to a
possessory action, article 3608 provides for relief only where the
preliminary injunction is dissolved by the outcome of the
possessory action itself. By failing to seek dissolution of the
preliminary injunction in the possessory action, Ormet contends,
Pendarvis “judicially confessed” that the preliminary injunction
was not wrongfully issued, and thus forfeited his right to damages
under article 3608. The fact that the preliminary injunction was
lawfully dissolved in the petitory action is, Ormet argues,
irrelevant to Pendarvis’s damage claim. We disagree.
The possessory action in this case was brought under La. Code
Civ. Proc. art. 3655. That article gives the mere possessor of
real property an action so that he may “be maintained in his
possession of the property . . . when he has been disturbed.” The
possessory action does not require any proof of title or ownership,
5
and instead premises relief on a simple showing of actual
possession at the time of a disturbance and throughout the prior
year. La. Code Civ. Proc. art. 3658. The possessory action
obviously can be brought by the titular owner of the property, but
the question of title is irrelevant to the merits of a possessory
claim.
A petitory action, on the other hand, may be brought under La.
Code Civ. Proc. art. 3651 by a titular owner who is not in
possession, for the purpose of having his ownership recognized.
This action, obviously enough, premises relief on proof of title.
La. Code Civ. Proc. art. 3653.
The possessory and petitory actions are intended by their
clear terms to be mutually exclusive; the party in possession
brings the possessory action, while the party not in possession
brings the petitory action. This intent is formally recognized by
La. Code Civ. Proc. art. 3657, which states that the two actions
may not be cumulated by a single plaintiff. Article 3657 goes even
further, however, and provides that when the defendant in a
possessory action asserts title in himself, the action is converted
to a petitory one, and the defendant “judicially confesses the
possession of the plaintiff.” As a corollary to this last rule,
article 3657 also provides that the bringing of a separate petitory
action by a defendant in a possessory action has the effect of
judicially confessing the fact of the plaintiff’s possession--but
not, of course, his legal right to possession, as we shall see.
6
It is against this statutory framework that we must apply the
wholly unrelated La. Code Civ. Proc. art. 3608. Article 3608
provides, in relevant part, that “[t]he court may allow damages for
the wrongful issuance of a temporary restraining order or
preliminary injunction.” The question, of course, is just what
constitutes “wrongful issuance” in the case before us. On this
point, however, the Louisiana law is relatively clear. Some 166
years ago, commenting on the direct predecessor to article 3608,
the Louisiana Supreme Court ruled that “the allegation that [a
preliminary] injunction was dissolved, is, in substance, an
averment that it was wrongfully obtained.” Florance v. Nixon, 3
La. 289, 291 (1832). Under Florance, subsequent dissolution is the
legal equipollent of wrongful issuance. This holding has never
been contradicted by the Louisiana Supreme Court,1 and would seem
to be consistent with the more recent decisions of Louisiana’s
lower courts in this context. See, e.g., Roy v. Union Bank, 347
So.2d 286, 289 (La. App. 3d Cir. 1977) (“wrongful does not
necessarily connote bad faith or connivance”). Whatever those
courts might think of the matter, however, we are bound to follow
the last clear pronouncement of Louisiana’s highest court. Based
on Florance, we are constrained to conclude that, under Louisiana
1
Indeed, it has if anything been sustained. The Florance
Court also held that “[t]he dissolution of an injunction is prima
facie evidence of the plaintiff in execution having sustained an
injury.” 3 La. at 292-93. This holding was upheld and applied in
Albert Pick & Co. v. Stringer, 171 La. 131, 137 (1930).
7
law, a preliminary injunction is characterized as “wrongfully
issued” for purposes of article 3608 whenever it is subsequently
dissolved on the merits. The intent and effect of this rule is to
encourage litigants to consider the ultimate merits of their case
for a permanent injunction when seeking a preliminary injunction;
whenever the recipient of a preliminary injunction is ultimately
denied his permanent injunction, damages will be owing. Whether
this be a wise policy or no we need not say; for present purposes
it is sufficient that it is the rule.
With this construction in mind, we proceed to the substance of
Ormet’s argument. Ormet first contends that the question of
wrongful issuance was judicially confessed by Pendarvis upon filing
of the petitory action because article 3657 provides that this
filing by the defendants in a possessory action has the effect of
“judicially confess[ing] the possession of the plaintiff.” This
confession, Ormet argues, is equivalent to confessing Ormet’s right
to possession, and therefore tantamount to admitting that the
preliminary injunction was not wrongfully issued in that it did not
infringe any right of Pendarvis. In support of this contention,
Ormet points to additional language in Roy indicating that a
finding of wrongful issuance requires a finding that the
preliminary injunction infringed some right of the defendant. 347
So.2d at 289. Even in the absence of Roy, however, Ormet contends
that article 3657, at a minimum, makes the filing of the petitory
action equivalent to confessing the plaintiff’s right to a
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permanent injunction in the possessory action, inasmuch as it
compels the confession of all the elements of a claim under article
3658, i.e., the actual possession of the plaintiff.
Ormet’s reading of article 3657 is incorrect. First, as the
Official Revision Comment to that article makes clear, article 3657
only provides for judicial confession of the fact of possession,
not the right to possession.2 The right of possession, obviously,
is inextricably tied to ownership, and thus the ultimate lawfulness
or unlawfulness of possession is contingent on the outcome of the
petitory action. It defies logic to suppose that a right could be
“confessed” merely by filing the action whose sole purpose is its
vindication.
Furthermore, confessing the fact of possession is not
equivalent to confessing that a preliminary injunction was not
wrongfully issued. Under Florance, wrongful issuance is equated
with dissolution on the merits, so to negate wrongful issuance
under Ormet’s alternate theory, a defendant in a possessory action
would have to confess, at a minimum, the entirety of the
plaintiff’s claim under article 3655, such that dissolution on the
2
La. Code Civ. Proc. art. 3657 Official Revision Comment (f):
The last paragraph of this article prevents a
defendant in a possessory action from defeating the
efforts of the plaintiff in the possessory action to have
the issue of his possession adjudicated therein, or from
relitigating the issue in a petitory action filed in a
separate suit, and in which he would allege that the
defendant was not in possession.
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merits in the possessory action would be impossible.3 That,
however, is not what Pendarvis did. Pursuant to article 3657,
Pendarvis only confessed the fact of Ormet’s possession. As
article 3658 also requires proof that a disturbance actually
occurred before relief can be granted,4 the mere confession of the
fact of possession was insufficient to establish Ormet’s possessory
claim. Dissolution on the merits of the possessory action was
therefore not precluded by Pendarvis’s filing. For this reason,
Pendarvis’s filing of the petitory action did not amount to a
judicial confession that the preliminary injunction was not
wrongfully issued under Florance.
B
Ormet’s alternate contention that the jury’s damage award was
clearly erroneous bears no more fruit than its procedural contest.
Ormet’s argument, in essence, is that the jury’s award of damages
was irrational because it was not based on substantial evidence and
was excessive because it gave Pendarvis credit for construction of
the second road as damage when it should more appropriately have
been counted as an improvement to the land. We are not persuaded
of the merits of this argument.
3
We make no comment as to whether this itself would be
sufficient. The fact that a preliminary injunction issued in a
possessory action can be dissolved in a subsequently filed petitory
action may preclude even this theory of judicial confession.
4
La. Code Civ. Proc. art. 3658(3).
10
With regard to rationality, our review of the record discloses
that there was substantial evidence in support of the jury’s award.
Testimony was presented that supported the argument that Pendarvis
constructed the second road and alternate fence solely because of
the injunction, and that the cost of doing so was $48,000. The
jury was free to accept this testimony, and it cannot be said that
its verdict was wholly without support.
With regard to excessiveness, this court has stated that
“[o]nly where [a jury verdict] is ‘so large as to shock the
judicial conscience, so gross or inordinately large as to be
contrary to right reason, so exaggerated as to indicate bias,
passion, prejudice, corruption, or other improper motive’ will we
reverse [it] for excessiveness.” Ham Marine, 72 F.3d at 462
(quoting Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 783
(5th Cir. 1983)). Such was clearly not the case here. Although
Ormet argues somewhat persuasively that the addition of the second
permanent road constituted an improvement to Pendarvis’s land, this
interpretation of the evidence was far from the only inference to
be drawn from the record as a whole. Indeed, the record does not
disclose any conclusive evidence on this contention, and the jury
could just as reasonably have concluded that the addition of the
second road added a trivial or indeterminate amount to the value of
the land, or that any addition was equally balanced by other
detriments. The decision to disregard this factor was at any rate
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not such as to “shock the judicial conscience,” and we can find no
error on this basis.
V
In conclusion, we find that Ormet’s legal arguments are not
sustained by either statute or case law, and that its evidentiary
objection to the damage award is not sufficient to overcome the
presumption in favor of the jury’s verdict. The judgment of the
district court is therefore
A F F I R M E D.
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