REVISED OPINION, March 11, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

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.

_________________________________________________________________

Appeal from the United States District Court for the

Middle District of Louisiana

_________________________________________________________________ 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 suffic i ency. 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 judici ally 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 was2

clearly erroneous in the face of the record. Finding no merit in

either argument, we affirm.

I

This case arises out of a proper ty 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 ea stern 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 disturb ed 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 te mporarily 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 possessory3

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 Pendarvi s had judicially confessed that the preliminary

injunction in the possessory action was not wrongfull y issued by

filing the petitory action (for reasons explained further below),4

and therefore was not legally entitled to damages resulti ng from

the preliminary injunction as a matter of Louisiana law. The

d istrict 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 a ward 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 o f state law de

novo. H art v. O’Bri en , 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 text5

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 longs tanding

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 disso lved 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,6

and in stead premises relief on a simple showing of actual

possession at the time of a disturbance and throughout the prior

y ear. 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 owner ship recognized.

This action, obviously enough, premises relief on proof of title.

La. Code Civ. Proc. art. 3653.

The possessory and peti tory actions are intended by their

cle ar terms to be mutually exclusive; the party in possession

brings the possessory action, while the par ty not in possession

brings the petitory action. This intent is formally recognized by

La. Code Civ. Proc. a rt. 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

possessio n 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 actio n 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.1 Indeed, it has if anything been susta ined. The F lorance

Court also held that “[t]he dissolution of an injunction is prima

facie evidence of the plaintiff in execution having s ustained 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 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 ar ticle 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.” F lorance v. Nixon

, 3

La. 289, 291 (1832). Under F lorance

, 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. S ee, e.g.

, Roy v. Union Bank

, 347

So.2d 286, 289 (La. App. 3d Cir. 1977) (“wrongful does not

necessarily connote bad faith or conniv ance”). 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 Louisiana8

law, a preliminary inju n ction is characterized as “wrongfully

issued” for purposes of artic le 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 injun ction is ultimately

denied his perman ent 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 argum ent. 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 pl aintiff.” 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 R oy indicating that a

f inding 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 R oy

, however, Ormet contends

that article 3657, at a minimum, makes the filing of the petitory

action equivalent to confessing the plaintiff’s right to a2 La. Code Civ. Proc. art. 3657 Official Revision Comment (f):

The last paragraph of this articl e 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

relit igating the issue in a petitory action filed in a

separate suit, and in which he would allege that the

defendant was not in possession.

9 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 F lorance

, wrongful issu ance 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 the3 We m ake 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 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 possessi on. 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.11

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.” H am 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 rate12

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 argume nts 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 fa vor of the jury’s verdict. The judgment of the

district court is therefore

A F F I R M E D.