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Rose v. Twin River Development, LLC

Court of Appeals of Louisiana, First Circuit

November 1, 2017

MICHELENA A. ROSE, LINDA ROSE GALLAGHER, MELANIE K. ROSE
v.
TWIN RIVER DEVELOPMENT, LLC, CSRS, INC., HILLTOP LOGGING CORP., MARTY DUE, RICHARD DEMINT, AND CHARLES BROWN

         Appealed from the 21st Judicial District Court in and for the Parish of Livingston, Louisiana Trial Court No. 115789 Honorable Elizabeth P. Wolfe, Judge

          RICHARD T. GALLAGHER, JR. METAIRIE, LAATTORNEY FOR PLAINTIFFS-APPELLANTS THE ESTATE OF MICHELENA A. ROSE, LINDA ROSE GALLAGHER AND MELANIE K. ROSE.

          STEVEN B. LOEB JACOB E. ROUSSEL BATON ROUGE, LA ATTORNEYS FOR DEFENDANT-APPELLEE CSRS, INC.

          ANTHONY S. MASKA HAMMOND, LA ATTORNEY FOR DEFENDANT-APPELLEE RICHARD DEMINT.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          PETTIGREW, J.

         In the instant case, the trial court heard two motions for summary judgment on September 19, 2016. Following the hearing, both motions were granted by the trial court, each in favor of a different defendant. However, only one judgment was signed on that day. According to plaintiffs, they had no intention of appealing the judgment signed on September 19, 2016, but they did. Although the second judgment, signed on October 6, 2016, was never appealed, it is the only judgment challenged by plaintiffs in the appeal before us now. For the reasons that follow, we dismiss this appeal.

         FACTS AND PROCEDURAL HISTORY

         The underlying litigation arises from the clear-cutting of a large swath of trees from land ("the Rose property") plaintiffs, the Estate of Michelena A. Rose, Linda Rose Gallagher, and Melanie K. Rose, claim to own.[1] Particularly, the disputed land consists of approximately 6.6 acres along the Tickfaw River in Livingston Parish.

         In 2006, Twin Rivers Development, LLC ("Twin Rivers") bought a tract adjoining the Rose property. Marty Due owned Twin Rivers, and Richard Demint was the company's manager. Prior to Twin Rivers' purchase of the adjoining property, Twin Rivers hired CSRS, Inc. and Stephen Estopinal to survey the property.

         Also in 2006, Michael Gallagher, Linda's son, hired a surveyor, Larry Lessard, to survey the property lines in connection with possible reclamation of riverfront property that had eroded. Lessard's employees determined that survey stakes had been placed diagonally over the Rose property, incorrectly setting the boundary line between the tracts and diminishing the Rose tract. After checking the public conveyance records, Lessard notified CSRS and its surveyor that they had placed the property line incorrectly over part of the Rose property. However, the allegedly encroaching stakes were never removed.

         Twin Rivers subsequently hired Hilltop Logging Corp. to clear cut trees up to the CSRS survey markers. As a result, Hilltop Logging cut approximately 6.6 acres of old growth riverfront timber from property allegedly belonging to plaintiffs.

         In May 2007, plaintiffs filed a petition for damages and trespass. Among the named defendants were Richard Demint and CSRS. In July 2016, Demint and CSRS filed separate motions for summary judgment. Demint alleged that he had no ownership interest in Twin Rivers and that he had no involvement in cutting the trees on the disputed land. CSRS alleged that it should be dismissed from the litigation because there was no evidence that CSRS violated the applicable duty of care for surveyors.

         Both motions for summary judgment came on for hearing on September 19, 2016. The hearing transcript shows that plaintiffs did not contest the grant of summary judgment in Demint's favor. A prepared judgment granting the motion for summary judgment, without decretal language, was submitted and ...


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