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A plaintiff may cumulate against the same defendant two or more actions even though based on different grounds, if: 1) each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and 2) all of the actions cumulated are mutually consistent and employ the same form of procedure. La. Code Civ. Proc. Ann. art. 462. The requirement that all of the actions employ the same form of procedure refers merely to whether each of the cumulative actions employ either ordinary, executory or summary procedure. La. Code Civ. Proc. Ann. art. 463, cmt. (a).
Plaintiff landowners Cora Abadie and Zadie Montgomery and defendant neighbors Rebecca J. Bolton and Randolph R. Cassidy et al., owned adjoining lots. Each lot was burdened by a five-foot drainage servitude. Plaintiffs, alleging that defendants were obstructing the natural drainage of the servitude causing damage to their property, filed suit against defendants. They sought damages and injunctive relief. For their part, defendants filed a dilatory exception of improper cumulation of actions. The trial court sustained defendants' dilatory exception of improper cumulation of actions and dismissed plaintiffs' suit after determining any defects in the pleadings could not be removed by amendment. In an unpublished opinion, the appellate court affirmed the portion of the trial court judgment maintaining the dilatory exception of improper cumulation. The court of appeal relied upon a case law and held that cumulation was improper because the action for damages and the action for injunctive relief employed different forms of procedure. Plaintiffs sought writ review of the trial court's decision.
Was the trial court’s judgment granting the dilatory exception of improper cumulation of actions filed by defendants proper?
No. The court reversed the judgment.
On review, the court noted that plaintiffs could cumulate two or more actions even though the actions were based on different grounds if the actions were within the trial court's jurisdiction and venue, and if the actions were mutually consistent and employed the same form of procedure. La. Code Civ. Proc. Ann. art. 462. In this case, the court found that both actions were triable by ordinary process and therefore employed the same form of procedure. Therefore, the court granted the writ requested by plaintiff landowners, and reversed the decision dismissing the appeal, and remanded the case to the trial court for further proceedings.