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Billy Tolar and Darbie Tolar v. Robert Spillers
State: Louisiana
Court: Fifth Circuit Court of Appeals Clerk
Docket No: 43,849-CA
Case Date: 01/14/2009
Plaintiff: Billy Tolar and Darbie Tolar
Defendant: Robert Spillers
Preview:Judgment rendered January 14, 2009 Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 43,849-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA *****

BILLY TOLAR and DARBIE TOLAR

Plaintiffs-Appellants

versus

ROBERT SPILLERS *****

Defendant-Appellee

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 07-3518 Honorable Alvin R. Sharp, Judge

***** KENNETH LEE HARPER Counsel for Appellants Counsel for Appellee

HARROD & HARROD By: George C. Harrod, Jr.

***** Before STEWART, CARAWAY and MOORE, JJ.

CARAWAY, J. In this case, the lessor claimed dissolution of the lease and eviction because of the defendant's misuse of a hunting and fishing lease on rural property adjacent to the Ouachita River. The lessor claims that defendant and others had occupied the property as a campground and constructed permanent facilities on the property which were not authorized by the lease. The trial court found no violation of the lease justifying its dissolution and refused relief. Finding that defendant's actions amounted to misuse of the lease premises, we reverse the trial court's dismissal of the action and order injunctive relief concerning defendant's future actions under the lease. Facts The plaintiff, Billy Tolar, acquired in late 1994 a tract of land consisting of 41.55 acres adjacent to the Ouachita River. Additionally, from the testimony and a review of an aerial photo, the tract traverses Lapine Bayou at its intersection with the Ouachita River. Lapine Bayou is a large waterway as it feeds as a tributary into the river at the site. On November 2, 1995, Tolar granted the subject "Hunting and Fishing Lease" on the land to defendant, Robert Spillers. The lease was for a one-year term, renewable annually thereafter for 49 years, with a $300 yearly rental. The lease was recorded in the records of Ouachita Parish. The six-paragraph lease, which was prepared by Spillers's attorney, provides in pertinent part as follows: III. Lessor agrees to provide hunting, fishing and other outdoor recreational activity privilege on the lease premises during the term of this lease to Lessee and Lessee's guests.
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IV. In consideration of the lease for hunting, fishing and other outdoor recreational activity purposes, Lessee agrees to hold lessor harmless from any liability of whatever nature or description relative to the use of the lease property; this liability is not only as to Lessee or Lessee's guests, but liability which may arise as it relates to any third party who may sustain either property or personal injury loss resulting from the use of the premises. V. The parties further agree that in the event Lessee constructs any buildings and/or other improvements he, or his heirs, shall have the right to remove such buildings and/or improvements. Further that in the event this lease is terminated for any reason, then Lessee shall have 6 months from the date of written demand to remove such buildings and/or improvements, in default of which, such buildings and/or improvements shall become the property of the land owner. Billy Tolar (hereinafter "Billy" or "appellant") was married to Darbie Tolar (hereinafter "Darbie") in 1966. Darbie testified that they are still married, although the evidence indicates that the Tolars were judicially separated in 1985. Darbie appeared individually in the petition and as Billy Tolar's agent, and she additionally claims a community property interest in the property.1 Billy, age 86, resides in a Texas nursing home, and the record reflects he was incapacitated at the time of trial. Before his recent residency at the nursing home, Billy had lived in Texas with his two daughters since 1997. This action was brought as an eviction proceeding. The petition to evict Spillers alleged that he breached the lease, as follows:

Darbie makes no assignment of error or further claim that the lease required her execution in order to be valid. Whether she has a community property interest in the property need not be resolved since Billy, as the party who executed the lease, may seek its dissolution or enforcement.

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