Opinion
2017 CA 1003
04-09-2018
WILSON BROWN AND CAROLYN BROWN v. TRINITY UNITED METHODIST CHURCH
Mark D. Plaisance Thibodaux, Louisiana Marcus J. Plaisance Prairieville, Louisiana Counsel for Plaintiffs-Appellants Wilson Brown and Carolyn Brown Joseph A. Tabb Ryan Baudry Franklin, Louisiana Counsel for Defendant-Appellee Trinity United Methodist Church
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT
NUMBER 129242, DIVISION D, PARISH OF ST. MARY
STATE OF LOUISIANA HONORABLE LEWIS H. PITMAN, JR., JUDGE Mark D. Plaisance
Thibodaux, Louisiana
Marcus J. Plaisance
Prairieville, Louisiana Counsel for Plaintiffs-Appellants
Wilson Brown and Carolyn Brown Joseph A. Tabb
Ryan Baudry
Franklin, Louisiana Counsel for Defendant-Appellee
Trinity United Methodist Church BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
Disposition: APPEAL MAINTAINED; AFFIRMED AS AMENDED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS.
CHUTZ, J.
Plaintiffs-appellants, Wilson and Carolin Brown, appeal the trial court's judgment decreeing that defendant-appellee, Trinity United Methodist Church (Church), is the owner of a disputed tract of land and establishing the boundary between adjacent tracts of land. We affirm as amended in part, vacate in part, and remand the matter for the trial court to amend the judgment to include a legal description of the Church's property.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2015, the Browns instituted a possessory action, seeking to maintain possession of a strip of land, referred to by the parties as "the alley," which was located adjacent to a tract of land belonging to them. The Browns averred that the Church disturbed their possession of the alley when it sent them a letter claiming that it owned the alley. The Church answered the lawsuit and asserted a reconventional demand claiming that it had title to the alley and averring that the Browns were not in the legal or physical possession of the strip of land. The Church also sought damages from the Browns for their trespass of the alley.
A trial was held on November 3, 2016, at which testimonial and documentary evidence was adduced. After having taken the matter under advisement, on December 27, 2016, the trial court issued written reasons for judgment, concluding that the Church had established its ownership of the alley as part of Lot 16, which was owned by the Church. A survey introduced into evidence by the Church was accepted as establishing the boundary of Lot 16, which includes the parties' common boundary where the alley is located. The trial court also awarded the Church damages as a result of trespass onto the alley by the Browns. A judgment in conformity with the trial court's reasons was signed on January 23, 2017, from which the Browns have appealed.
Although the parties did not offer any testimonial evidence of the depth of the alley, from the plat of survey it appears to be approximately forty feet.
This court issued a show-cause order questioning the timeliness of the appeal. Because we find the appeal is timely, it is maintained. See La. C.C.P. art. 2123 (setting forth the delay for taking a suspensive appeal); La. C.C. art. 2315; and Hooper v. Wisteria Lakes Subdivision , 2013-0050 (La. App. 1st Cir. 9/13/13), 135 So.3d 9, 18 n.12, writ not considered, 2013-2433 (La. 1/27/14), 130 So.3d 954 (trespass is the unlawful physical invasion of the property or possession of another which entitles the victim to full indemnification for the damages caused). The portion of the show-cause order directed at whether the appealed judgment describes the immovable property at issue with sufficient particularity is addressed later in this opinion.
DISCUSSION
Conversion of Possessory to Petitory Action
The Browns first contend that the trial court erred when it applied the law relative to a petitory action since, in its reconventional demand, the Church alleged that the Browns had not been in either legal or physical possession of the alley for more than one year. As such, the Browns claim that the matter was a possessory action.
According to La. C.C.P. art. 3657, "The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action." Here, the Church, as the plaintiff-in-reconvention, asserted that it had title to the alley. As such, it waived the possessory action. Thus, the trial court correctly concluded that the matter was a petitory action.
Petitory Action
The Browns next challenge the trial court's conclusion that the Church proved its ownership of the alley. They contend that the record is devoid of evidence showing the chain of title, the testimonial evidence about the survey was unreliable, and the survey was inaccurate when compared to the language contained in the Church's deed.
La. C.C.P. art. 3651 provides, "The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership." La. C.C.P. art. 3653 states in relevant part,
To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
Although the trial court determined that the Church, as plaintiff-in-reconvention in the petitory action, proved ownership of the alley as part of its ownership of Lot 16, the trial court did not make an express finding whether the Browns were in possession of the alley at the time the petitory action was filed.
Review of the undisputed evidence establishes that in 2002, the Browns leased out a portion of the alley for placement of a mobile home by a third party. Flonella Alexander, a 55-year member and lay leader of the Church who assisted the pastor and was responsible for coordinating grass cutting of the premises, admitted in her testimony that the tenants maintained the area where the mobile home was located. Thus, the undisputed evidence establishes that the Browns were in possession of the alley upon which the mobile home was located at the time of the filing of the petitory action, thereby requiring that the Church show it acquired ownership of the alley from a previous owner under La. C.C.P. art. 3653(1). See George M. Murrell Planting & Mfg. Co. v. Dennis , 2006-1341 (La. App. 1st Cir. 9/21/07), 970 So.2d 1075, 1081.
We presume that the third-party lessees' possession of the alley was for the benefit of the Browns. See La. C.C. art. 3437 ("[t]he exercise of possession over a thing with the permission of or on behalf of the ... possessor is precarious possession"); and art. 3438 ("[a] precarious possessor, such as a lessee ..., is presumed to possess for another").
To meet its burden of proving ownership where it was not in possession of the alley, the Church put into evidence a copy of a plat of survey certified by L.J. Comeaux, a registered professional land surveyor. It also offered into evidence a copy of its deed from Mount Zion M.E. dated June 24, 1890 and recorded on June 26, 1890 in COB Z, folio 658, Entry No. 18566 in St. Mary Parish.
Initially we note that although they did not object at trial, on appeal, the Browns challenge the qualifications of Darryl Morris, a project manager with Wayne LaBiche and Associates, Land Surveyors who had 35 years of field experience and in drafting surveys, because he was not a registered land surveyor. The failure to make a contemporaneous objection during the trial waives the right of a party to complain on appeal that the evidence was improperly admitted at trial. Louisiana State Bar Ass'n v. Carr and Associates , Inc., 2008-2114 (La. App. 1st Cir. 5/8/09), 15 So. 3d 158, 172, writ denied, 2009-1627 (La. 10/30/09), 21 So. 3d 292. Moreover, since the trier of fact is free to believe in whole or part the testimony of any witness, see Pennison v. Carrol , 2014-1098 (La. App. 1st Cir. 4/24/15), 167 So.3d 1065, 1076, writ denied sub nom., Pennison v. Henry , 2015-1214 (La. 9/25/15), 178 So.3d 568, the trial court was free to rely on Morris's testimony in reaching its determination.
Although the trial court indicated that Morris was a fact witness, it awarded him an expert witness fee of $1,500. The Browns have not appealed this portion of the judgment.
Morris testified that he was the party chief in the field and the draftsman of the Church's plat of survey. He stated that working under the supervision of Comeaux, he had direct knowledge of all the measurements used in preparing the plat based on his field notes and observations. Although there were no preexisting markers or natural monuments between the parties' respective properties, Morris found the common boundary between the Browns' (Lots 3 and 4 of partitioned former Lot 17) and their neighboring property to the east (Lots 1 and 2 of partitioned former Lot 17) based on existing markers from a survey of Lot 2 by T.F. Kramer in 1958. Morris testified that he was able to verify the authenticity of the Kramer markers after speaking to Kramer's successor surveying firm. Morris was also able to identify right-of-way markers along Highway 182 and Haven Street. Using the act of partition of Lot 17 into Lots 1, 2, 3, and 4, and the Church's deed of Lot 16, Morris explained he was able to establish the easterly boundary of Lot 17 (i.e., from Kramer's survey of Lot 2), and the other three boundaries of the Church's property based on existing markers of the rights-of-way of Orphans Home Street, Haven Street, and Highway 182 to determine the measurements. According to Morris, all but 6.7 feet of the mobile home was located on the Church's property. In addition to placing the location of the mobile home, the Church's plat of survey identified the locations of the preexisting Kramer markers and the ½-inch iron rods that had been set by Wayne LaBiche and Associates as part of the surveying process.
Mr. Brown and Morris also identified a worksheet prepared by surveyor David Moore who met with Mr. Brown to survey the Browns' property but ultimately was not hired. According to Morris, he first saw the Moore worksheet a few months before trial, which was well after he had prepared the plat of survey for the Church. Morris noted that Moore's worksheet was in conformity with the plat of survey Morris prepared for the Church insofar as the location of the common boundary between the parties' property as well as the location of the mobile home relative to that boundary.
In challenging the accuracy of the plat of survey when compared to the Church's deed, the Browns maintain that the dimensions stated in the Church's deed are less than that shown on the survey of plat. The Church's deed for Lot 16 states:
Lot Number Sixteen (16) in the village of United (formerly La Teche) Parish [of] St. Mary and State of Louisiana Being of irregular shape measuring on Haven Street in said Village about Two Hundred feet on Chicago Avenue about Two Hundred feet; on lane next to Baldwin
[school] on the Northwest, about Two Hundred feet, and on the Southwest along the line of William Hoskins lot about Two Hundred and Twenty-feet, containing about one and fifty-five hundredths acres together with Church and parsonage located therein. [Footnote added.]
Although the deed states "lyce," it is undisputed that it was a reference to "lycée," which means "school" in French.
The Browns assert that the plat of survey shows the distance of Lot 16 on Haven Street as about 234 feet, whereas the Church's deed indicated a length of approximately 200 feet. They also contend that the line between their tract of land (Lot 4 of partitioned former Lot 17) and the Church's (Lot 16) states a distance of about 220 feet in the deed but the plat of survey concludes the length of that boundary is approximately 301 feet. Finally, the Browns claim that the boundary of Lot 16 located on Orphans Home Street that Morris measured at 405 feet, which ostensibly included about 200 feet as set forth in the Lot-16 deed, is merely speculative. The Browns reason that to total 405 feet, the adjacent Lot 15, which it is undisputed also belongs to the Church, would have had to measure approximately 205 feet. Since there was no acreage accounted for in the Lot-15 deed, and Morris did not specify where Lot 15 ended and Lot 16 commenced, the Browns urge that the Church failed to establish one of the boundaries of Lot 16 so as to sustain its burden of proof in this petitory action.
In his testimony, Morris explained that when a description from the era of the Church's deed described a distance using the term "about" rather than referencing a specific survey, the description was merely an estimate. He stated that he had seen estimates in old deeds off by 80 feet, explaining that "about" may have been based on scaling rather than exact measurements.
After reviewing the evidence in this case, it is clear that the Church obtained title to the alley from a previous owner in 1890 when it obtained Lot 16. Thus, we cannot say the trial court erred in concluding that the Church sustained its burden of proof in this petitory action.
Possessory Action
The Browns contend that the trial court nevertheless erred by concluding that they failed to establish their ownership of the alley through thirty-year possession. They urge that with the possession of their predecessors-in-interest added to their own, they have established their ownership of the alley by acquisitive prescription.
Ownership of immovable property may also be acquired by the prescription of thirty years without the need of just title or possession in good faith. La. C.C. art. 3486. In a petitory action, when one party relies on title and the other on acquisitive prescription, the party relying on title will prevail unless the adversary establishes his ownership by acquisitive prescription. Stated another way, ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. Under the general codal provisions on acquisitive prescription, a possessor lacking good faith and/or just title may acquire prescriptive title to land by corporeally possessing a tract for thirty years with the intent to possess as owner. Such possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public, and unequivocal, and confers title only to such immovable property as is actually corporeally possessed. See La. C.C. arts. 3424, 3426, 3476, 3486, 3487, and 3488; George M. Murrell Planting & Mfg. Co., 970 So.2d at 1080. Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong. Id., 970 So.2d at 1081.
According to Mr. Brown, he and his wife purchased the property, which included Lot 4, in 1998 from the Coopers. Mr. Brown testified that the Coopers showed him where the line separated the Browns' property from the Church's, which was where an old marker was located in the ground. Photographs showing the marker were introduced into evidence. Mr. Brown testified that he knew his property was adjacent to the alley, which he believed commenced from the marker. In 2002, with his decision to lease the mobile home lot, Mr. Brown cleared out the overgrowth in the alley and put in a sewer line. He explained that the location where he cleared out the overgrowth was beyond the outer limits of his property and that at some point, because the water was not draining properly, he also put a trench in the alley, which was about fifteen feet past the marker that he identified as the outer boundary of his property. During cross-examination, Mr. Brown admitted that he did not own the alley but he believed that the location of the mobile home was on his property.
Morris testified that he did not see the marker that Mr. Brown relied on as the outer limit of his property when surveying the Church's property, noting that he did not go too far of a distance from the common boundary. Based on Mr. Brown's testimony and apparently observing the photographs offered into evidence, Morris also stated that he did not recognize the source of the marker. --------
Nonetheless, by his own testimony, Mr. Brown did not clear the alley until 2002. Moreover, the Browns presented no evidence to establish actual corporeal possession of the alley by the Coopers prior to the Browns' purchase of Lot 4 in 1998, nor did they present any evidence that the alley had been used in any way by them or the Coopers prior to Mr. Brown clearing the alley in 2002. Based on Mr. Brown's testimony and the Browns' failure to present evidence of actual corporeal possession of the alley that was continuous, uninterrupted, peaceable, public, and unequivocal, in such a way as to "giv[e] notice to the world of the extent of possession exercised" by them or their predecessors in interest for a period of thirty years, a reasonable factual basis exists to support the trial court's conclusion that the Browns did not acquire the alley through thirty-year acquisitive prescription. See George M. Murrell Planting & Mfg. Co., 970 So. 2d at 1080-1081, 1085-88. Thus, the trial court's conclusion is not manifestly erroneous. Since the Church established its ownership of the alley as part of its petitory action, the trial court correctly determined the common boundary between the properties is as that set forth in the Church's plat of survey. While the Browns contend that the trial court erred in awarding damages for trespass, the sole basis of their complaint is that the Church was not owner of the alley where the mobile home was located. Because we have found no error in the trial court's determinations of the Church's ownership of the alley and the location of the common boundary between the parties' property, which is as depicted on the Church's plat of survey, there is no error in the award of damages to the Church.
Legal Description
As we have already noted, this court issued a show-cause order directed at whether the appealed judgment describes the immovable property at issue with sufficient particularity in that it refers to documents outside the record. See La. C.C.P. art. 1919 ("[a]ll final judgments which affect title to immovable property shall describe the immovable property affected with particularity"); and art. 2089 ("[a]ll judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected"). Specifically, subsequent to decreeing that the alley was a portion of Lot 16, the judgment states, "The said Lot 16 is more fully shown and depicted on a map of Winstead recorded in St. Mary Parish COB 3-C, page 569, File No. 39715." Although it is possible that the trial court took judicial notice of the public conveyance record as one over which it has jurisdiction, and there is some jurisprudence permitting such action by the trial court, see Tinney v. Lauve , 280 So.2d 588, 590 (La. App. 4th Cir. 1973), this court has not been provided that information and, therefore, is unable to review its relationship with Lot 16. Therefore, that portion of the judgment which references documents not contained in the record is vacated.
Additionally, we have determined that in identifying the common boundary between the parties' properties, the judgment incorrectly cites "File No. 112451" as "File No. 22451" in its reference to the source partition of Lot 4. Therefore, the judgment is amended to reference the correct file number.
Lastly, we point out that the purpose of requiring judgments affecting title to describe the immovable property with particularity is to ensure that the public in general, and title examiners, successful litigants, officials charged with executions of judgments, and surveyors in particular, can accurately deal with the immovable property. See Hurst v . Ricard , 558 So.2d 1269, 1272 (La. App. 1st Cir.), writ denied, 559 So. 2d 1378 (La. 1990). La. C.C.P. art. 1951 provides that a final judgment may be amended by the trial court at any time to alter the phraseology of the judgment, but not the substance. A nonsubstantive alteration of a judgment is one which neither takes anything away from, nor adds anything to, the original judgment. Hurst , 558 So.2d at 1272.
Because the trial court clearly decreed that the Church was owner of Lot 16, of which the alley was a portion, and designated the southern boundary of Lot 16 as indicated on the Church's plat of survey, an amendment of the judgment to include a legal description is a nonsubstantive alteration of a judgment that allows for accurate dealings with the immovable in conformity with La. C.C.P. art. 1919 and 2089. See Hurst , 558 So.2d at 1272. Therefore, the matter is remanded with instructions to the trial court to include a legal description of the property in question. See Deano v. Brouillette , 94-1856 (La. App. 4th Cir. 11/16/95), 664 So.2d 1283, 1287.
DECREE
For these reasons, we maintain the appeal. That portion of the trial court's judgment, which concludes that the Church established its ownership of Lot 16 of which the alley is a portion, is affirmed. That portion of the trial court's judgment, which states, "The said Lot 16 is more fully shown and depicted on a map of Winstead record in St. Mary Parish COB 3-C, page 569, File No. 39715," is vacated. That portion of the judgment, which establishes the boundary between Lot 16 and Lot 4, is amended to reference "File No. 112451" and, as amended, is affirmed. That portion of the judgment, which awards damages to Trinity United Methodist Church, is affirmed. The matter is remanded to the trial court with instructions to amend the judgment to include a legal description of the property. Appeal costs are assessed against plaintiffs-appellants, Wilson and Carolin Brown.
APPEAL MAINTAINED; AFFIRMED AS AMENDED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS.