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Roy v. Bordelon

Court of Appeals of Louisiana, Third Circuit

April 29, 2015

KIRBY A. ROY, III, ET UX.
v.
NELSON BORDELON, ET AL

Page 368

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES, NO. 2011-6536-A. HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE.

C. Brent Coreil, Ville Platte, LA, COUNSEL FOR PLAINTIFFS/APPELLEES: Kirby A. Roy, III, Marjorie Pullin Roy.

Alissa Piazza Tassin, Marksville, LA, COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Tassin, Nelson Bordelon, Wayne Gremillion.

Court composed of Jimmie C. Peters, Marc T. Amy, Shannon J. Gremillion, John E. Conery, and David Kent Savoie, Judges. Peters, J., concurs in part, dissents in part, and assigns written reasons. Gremillion, J. concurs in part, dissents in part, and assigns reasons. Savoie, J., concurs in part and dissents in part for the reasons assigned by Peters, J.

OPINION

Page 369

[14-976 La.App. 3 Cir. 1] AMY, Judge.

The plaintiffs sold two parcels of property, reserving any and all hunting rights thereon. The current owners challenged the respective reservations, eventually resulting in the filing of a criminal trespassing complaint against one of the plaintiffs by one of the defendants. The criminal proceedings were ultimately dismissed. The plaintiffs filed suit, seeking an injunction preventing the defendants from hunting on the property and also pursuing damages associated with the defendants' use of the land as well as with the criminal complaint. The trial court issued the injunction and awarded damages in connection with the defendants' issuance of hunting leases to others and for the unsuccessful criminal proceedings. The defendants appeal. For the following reasons, we reverse the trial court's award for false arrest and affirm the trial court's

Page 370

ruling on the injunction and the damages award associated with the hunting leases.

Factual and Procedural Background

The dispute at issue involves two contiguous properties in Avoyelles Parish, one of which was previously owned by Kirby Roy, Jr. and his wife, Marjorie Roy, and the other property which was owned by Kirby Roy, III and his wife, Sheila Aymond Roy. In May 1980, the respective couples sold their property to John Douglas Bordelon and Ralph J. Bordelon. [14-976 La.App. 3 Cir. 2] The Cash Deed for Mr. and Mrs. Kirby Roy, Jr.'s property indicated that they reserved the mineral rights on the property and that:

Vendors further reserve any and all hunting rights on the property described on the attached Exhibit " A" . [Tracts 1-8]
TO HAVE AND TO HOLD said property unto said purchasers, their heirs and assigns forever.

The Cash Deed for Mr. and Mrs. Kirby Roy, III's property indicated that they also reserved the mineral rights on the property and that:

Vendors further reserve and retain any and all hunting rights on the property described on the attached Exhibit " A" [Tracts 1 and 2].
TO HAVE AND TO HOLD said property unto said purchasers, their heirs and assigns forever.

Thereafter, in 1990, the subject property was foreclosed upon and sold by Sheriff's Deed to The Farm Credit Bank of Texas. The Deed indicated that:

Tracts 1, 2, 3, 4, 5 and 6 hereinabove described are subject also to a reservation of any and all hunting rights, reserved by Kirby A. Roy, Jr., et ux in sale to John Douglas Bordelon, et al.
. . . .
Tracts 7 and 8 are further made subject to a reservation of any and all hunting rights reserved by Kirby A. Roy, III, et ux in that act of sale to John Douglas Bordelon, et al.

In turn, Nelson A. Bordelon, Wayne L. Gremillion, and Richard Tassin acquired the property by Special Warranty Deed in 1991. That conveyance stated that it was " made subject to all easements, right of ways, and prescriptive rights, whether of record or not, all presently recorded restrictions, reservations, convenants, conditions, oil and gas leases, mineral severances, and other instruments, other than liens or conveyances, that affect the property[.]" The Deed's property description was annexed as Exhibit A, which reported that:

Tracts 1, 2, 3, 4, 5 and 6 hereinabove described are subject also to a reservation of any and all hunting rights, reserved by Kirby A. Roy, Jr. et ux in sale to John Douglas Bordelon, et al.
. . . .
Tract 7 and 8 are further made subject to a reservation of any and all hunting rights reserved by Kirby A. Roy, III, et ux in that act of sale to John Douglas Bordelon, et al.

[14-976 La.App. 3 Cir. 3] Mr. Bordelon, Mr. Gremillion, and Mr. Tassin later partitioned the property among themselves.

Throughout the period of transfers, the Roy family continued to hunt on the property. However, friction between the Roys and the new property owners developed as to whether the Roys retained the reservation of the hunting rights after the 1991 purchase by Mr. Bordelon, Mr. Gremillion, and Mr. Tassin. Mr. Gremillion filed an offense report with the Avoyelles Parish Sheriff's Department, reporting Kirby Roy, III for hunting on the property without permission. A misdemeanor summons was issued and, in turn, a warrant and affidavit for criminal trespass under La.R.S. 14:63

Page 371

was issued as a result. According to the record, the matter was dismissed after grand jury proceedings.

Kirby Roy, III[1] (Mr. Roy) and his mother, Marjorie Roy,[2] filed suit in April 2011, naming Mr. Bordelon, Mr. Gremillion, and Mr. Tassin as defendants. The Roys noted their reservation of any and all hunting rights and alleged that the defendants had leased the property for hunting purposes, thereby depriving them of their hunting privileges. The Roys sought the return of the revenue the defendants derived from the hunting leases and damages that Mr. Roy alleged were due for intentional infliction of emotional distress related to the criminal proceedings brought against him for criminal trespass. The Roys also sought an injunction prohibiting the defendants " their agents, guest[s], lessees or assigns from hunting on the property[.]"

[14-976 La.App. 3 Cir. 4] The matter proceeded to trial, with the defendants questioning whether the reservation of hunting rights was heritable and, also, whether the Roys held any such hunting rights exclusively. The trial court ultimately ruled in favor of the Roys, determining that they " are entitled to and own all of the hunting rights" on the property. The trial court further granted an injunction in favor of the plaintiffs and prohibiting the defendants, " their agents, invitees or lessees from interfering with Plaintiffs hunting rights on the properties[.]" The trial court ordered that the defendants pay the plaintiffs $12,000 that the defendants earned from issuing hunting leases. Additionally, the trial court ordered Mr. Gremillion to pay Mr. Roy $6,500 in damages for the criminal prosecution for criminal trespass. Thereafter, the trial court denied the defendants' motion for new trial.

The defendants appeal, assigning the following as error:

1) The trial court erred as a matter of law and fact by allowing in evidence submitted by plaintiffs as related to the intentions of the parties to a property transaction in 1980.
2) The trial court erred as a matter of law and evidence by denying a new trial.
3) The trial court erred as a matter of law and fact by denying a new trial based on new evidence.
4) The trial court erred as a matter of law and fact by determining that a reservation of an individual " vendor's" reservation of a ...

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