James G. Gossen Versus Floyd Michael Landry

JAMES G. GOSSEN NO. 24-C-472

VERSUS FIFTH CIRCUIT

FLOYD MICHAEL LANDRY COURT OF APPEAL

STATE OF LOUISIANA

October 21, 2024

Susan Buchholz Chief Deputy Clerk

IN RE JAMES G. GOSSEN

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 844-582

Panel composed of Judges Marc E. Johnson, John J. Molaison, Jr., and Scott U. Schlegel

WRIT DENIED

In this possessory action, the relator/plaintiff, James G. Gossen, seeks review of the trial court’s July 10, 2024 denial of his Motion for Judgment on the Pleadings. Mr. Gossen contends that when defendant, Floyd Landry, filed a reconventional demand asserting his ownership in the property at issue by means of a petitory action, he judicially confessed to Mr. Gossen’s possession of the property. La. C.C.P. art. 3657(B) provides that a defendant’s assertion of ownership in a possessory action does not judicially confess the possession of a plaintiff. The 2023 comments for La. C.C.P. art. 3657, specifically sections (a) and (d), make clear that the “harsh penalty” of “judicial confession,” incurred by a defendant who asserts title in himself in response to a possessory action, has been eliminated. In addition, the plain language of La. C.C.P. art. 3657(C) limits judicial confessions to the scenario where a defendant institutes a petitory action or declaratory judgment action to determine ownership in a separate suit. Though Section C generally prohibits the filing of reconventional demands in possessory actions, we do not find that it constitutes a judicial confession regarding Mr. Gossen’s possession in the present matter.

Further, after a de novo review, we find that the allegations in Mr. Gossen’s petition do not exclude every reasonable hypothesis upon which Mr. Landry can prevail. Serio v. Chadwick, 66 So.2d 9, 16 (La. App. 2nd Cir. 1953). Establishing possession of the Grand Isle property is central to resolving the case. While Mr. Gossen claims “open and obvious possession” of the property, Mr. Landry’s pro se answer/reconventional demand contains both assertions and evidence that he has been the sole owner of the parcel at issue since 1991. The presence of a conflict in the pleadings precludes the granting of a motion for judgment on the pleadings.

24-C-472

See, First Metropolitan Bank v. Plaia, 384 So.2d 560, 565 (La. App. 4th Cir. 1980). Based on the showing made, we find no basis upon which to disturb the ruling of the trial court. Accordingly, the writ application is denied.

Gretna, Louisiana, this 21st day of October, 2024.

JJM MEJ SUS

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 10/21/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-472 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable E. Adrian Adams (DISTRICT JUDGE) No Attorney(s) were ENOTIFIED

MAILED George L. Gibbs (Respondent) Cassie P. Gailmor (Relator) Attorney at Law Attorney at Law 3900 North Causeway Boulevard 700 Camp Street Suite 1470 Suite 203 Metairie, LA 70002 New Orleans, LA 70130