This is an appeal from judgments overruling exceptions of lis pendens and res judicata filed by the appellants and granting a preliminary injunction against the appellants from interfering with or using a fifteen foot wide lane which is the subject of a possessory action filed by the appellee.
On March 8, 1982, Sam Ciolino and Joe Spalitta (appellants) filed suit against Jack
On October 19, 1982, Castiglia filed a possessory action against Ciolino and Spalitta (Castiglia v. Ciolino-Spalitta) requesting recognition of his right to possess a six acre tract of land with a fifteen foot wide road running across the property for a distance of 1,162 feet. Castiglia prayed that a preliminary injunction issue prohibiting Ciolino and Spalitta from interfering with his possession of this property. Castiglia asserted that on October 4, 1982, Ciolino and Spalitta interfered with his peaceful passage over the roadway by tearing up the road and placing trees in the right-of-way. Castiglia also alleged that the suit filed by Ciolino and Spalitta against him (Ciolino-Spalitta v. Castiglia) in March of 1982 was a disturbance in law of his possession. On October 29, 1982, Castiglia amended his petition by adding a $10,000 claim for damages.
Also on October 29, 1982, a hearing was held on the contempt rule in Ciolino-Spalitta v. Castiglia. After hearing the evidence, the district court took the matter under advisement. On November 17, 1982, an opinion was rendered that Castiglia was in contempt of court. Castiglia was ordered to pay a fine of $100 plus costs and serve two days in the parish jail, which penalty was suspended and Castiglia was placed on inactive probation on the condition that he refrain from any further contemptuous acts. This contempt judgment was read and signed on December 23, 1982.
On November 19, 1982, the district court conducted a hearing in Castiglia v. Ciolino-Spalitta on Castiglia's request for a preliminary injunction. Prior to taking evidence at this hearing, Ciolino and Spalitta in a single pleading filed a declinatory exception of lis pendens and peremptory exceptions of prescription and res judicata.
This suspensive appeal was taken on February 9, 1983. La.C.C.P. art. 3612.
EXCEPTION OF LIS PENDENS
Appellants contend that the trial court committed error by overruling their exception of lis pendens.
The record reflects that in a single pleading the appellants filed a declinatory exception of lis pendens (La.C.C.P. art. 925 as defined in La.C.C.P. art. 531) with peremptory exceptions of res judicata (La. C.C.P. art. 927) and prescription (La.C. C.P. art. 927). Prior to August 30, 1983,
EXCEPTION OF RES JUDICATA
The appellants contend that the trial court committed error by overruling their exception of res judicata.
An appeal may be taken from a final judgment or from an interlocutory judgment which may cause irreparable injury. La.C.C.P. art. 2083. A judgment overruling the peremptory exception of res judicata is interlocutory and is not appealable absent a showing of irreparable harm. Cheramie v. Vegas, 413 So.2d 1343 (La. App. 1st Cir.1982). Because the appellants have failed to allege or demonstrate irreparable injury, this portion of the appeal will be dismissed. La.C.C.P. art. 2162; Pavlo v. Pavlo, 396 So.2d 390 (La.App. 1st Cir. 1981); Fontenot v. O'Brien, 302 So.2d 399 (La.App. 1st Cir.1974).
The ruling on the exception of res judicata cannot be contested as part of the appeal from the judgment on the preliminary injunction. Interlocutory judgments affecting exceptions which do not involve irreparable injury may only be raised with an appeal from a final judgment. Cf. Firemen's Pension and Relief Fund for City of Lake Charles v. Boyer, 420 So.2d 1323 (La.App. 3rd Cir.1982); Carville v. City of Plaquemine, 303 So.2d 289 (La.App. 1st Cir.1973). Although the preliminary injunction judgment is appealable (La.C.C.P. art. 3612), it is still an interlocutory judgment. Louisiana National Bank v. Hebert, 398 So.2d 632 (La.App. 4th Cir.1981); Southwest Sales and Manufacturing Company, Inc., v. Delta Express, Inc., 342 So.2d 281
The appellants assert that the trial court committed error by granting Castiglia a preliminary injunction prohibiting them from using the fifteen foot wide lane.
The principal argument supporting this assignment of error is that the trial judge was clearly wrong in determining that Castiglia had proven irreparable injury, loss, or damage would result unless the preliminary injunction were issued as required by La.C.C.P. art. 3601. This argument cannot prevail because the preliminary injunction is being sought as an ancillary remedy to a possessory action and is controlled by La.C.C.P. art. 3663 and not by La.C.C.P. art. 3601. The purpose of a preliminary injunction which is ancillary to a possessory action is to preserve the status quo during the pendency of the action. Meche v. Graham, 421 So.2d 461 (La.App. 3rd Cir.1982). An action for injunctive relief brought under the provisions of La.C. C.P. art. 3663 requires no showing of irreparable injury, loss, or damage. Louisiana Power & Light Company v. Holmes, 422 So.2d 684 (La.App. 3rd Cir.1982), writ denied, 425 So.2d 774 (La.1983); Red River v. Noles, 406 So.2d 294 (La.App. 3rd Cir.1981); Ryan v. Pekinto, 387 So.2d 1325 (La.App. 1st Cir.1980), writ denied, 394 So.2d 615 (La.1980); A. Yiannopoulos, Property § 229 in 2 Louisiana Civil Law Treatise, 610-616 (2d ed. 1980).
Even though Castiglia need not prove irreparable injury, loss, or damage as required by Article 3601, he must still show that he is entitled to the relief sought and must make a prima facie showing that he will prevail on the merits of his possessory action. Cf. General Motors Acceptance Corporation v. Daniels, 377 So.2d 346 (La. 1979); Talley v. Capital Bank and Trust Company, 411 So.2d 530 (La.App. 1st Cir. 1982); Richland Parish Bus Drivers Association v. Richland Parish School Board, 393 So.2d 809 (La.App. 2nd Cir.1981); Daigre Engineers, Inc. v. City of Winnfield, 385 So.2d 866 (La.App. 2nd Cir. 1980). Prima facie evidence is evidence sufficient to establish a given fact and which, if not rebutted or contradicted, will remain sufficient. State v. Williams, 400 So.2d 575 (La.1981); State, ex rel. Dupas v. City of New Orleans, 240 La. 820, 125 So.2d 375 (1960); Watkins v. Zeigler, 147 So.2d 435 (La.App. 2nd Cir.1962).
The elements of proof in a possessory action are set forth in La.C.C.P. art. 3658 as follows:
A possessor for purposes of the possessory action is defined in La.C.C.P. art. 3660 as follows:
At the hearing on his rule for the preliminary injunction, Castiglia testified that he did not own the lane, but had a privilege or title to use the road which he inherited from his father in part and acquired in part by purchase from his brothers and sisters. Castiglia also testified that he had been grading the road for forty-six or forty-seven years. Sadie Ciolino testified that he was the owner of the road and that Jack Castiglia had the privilege or right-of-way to use the road.
The judgment of the district court granting the preliminary injunction is correct and is affirmed.
For the foregoing reasons, the appeals of the judgments overruling the exceptions of lis pendens and res judicata are dismissed and the judgment granting the preliminary injunction is affirmed. Appellants are to pay all costs of this appeal. Costs in the district court shall be determined upon a final judgment on the merits.
APPEAL DISMISSED IN PART; AFFIRMED IN PART.