Opinion
2016 CA 1627
06-02-2017
JAMES EVERETT KING v. DOLA EASE PIERCE JENKINS TRUST
William M. Magee Sarabeth T. Bradley Covington, Louisiana Attorneys for Plaintiff/Appellant James Everett King E. B. Dittmer, II Mandeville, Louisiana Attorney for Defendant/Appellee Dola Ease Pierce Jenkins Trust
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF WASHINGTON STATE OF LOUISIANA
DOCKET NUMBER 105,666, DIVISION "J" HONORABLE ELAINE W. DIMICELI, JUDGE William M. Magee
Sarabeth T. Bradley
Covington, Louisiana Attorneys for Plaintiff/Appellant
James Everett King E. B. Dittmer, II
Mandeville, Louisiana Attorney for Defendant/Appellee
Dola Ease Pierce Jenkins Trust BEFORE: PETTIGREW, McDONALD, and PENZATO, JJ. McDONALD, J.
In this case the plaintiff, James Everett King, appeals a trial court judgment rendered in favor of the defendants, the Dola Ease Pierce Jenkins Trust (the Trust), Pamela Keating, Robin Gaspard, and James Breazeale, and against Mr. King, dismissing with prejudice Mr. King's petition for possessory action based on 30 years possession and for declaratory judgment. After a thorough review, we affirm.
FACTS AND PROCEDURAL HISTORY
Mr. King filed suit on May 30, 2013, asserting that he had been in open, continuous, and uninterrupted possession of a parcel of land in Washington Parish as owner for more than 30 years. The parcel was described as the "Southeast Quarter of the Northeast Quarter of Section 29, Township 4 South, Range 13 East, Washington Parish, Louisiana." Mr. King maintained that he began his possession of the property in the spring of 1982 when he fenced the property, and that he cut the grass along the fence lines, kept the fence in good repair, ran cattle, cut trees around the perimeter, posted signs against trespassing, built and maintained a road along the fence line of the adjoining properties, and otherwise exercised acts of possession of the property as owner for over 30 years.
Mr. King maintained that the record owners of said quarter section of the property were unknown, but they were alleged to be Houston Jenkins and/or Dola Ease Pierce Jenkins, their heirs, successors, or assigns, and the Trust, which claimed to have purchased an ownership interest in the property on May 2, 1995. Mr. King asked for judgment in his favor and against the defendants, recognizing his and his ancestors' possession of the property in excess of 30 years, maintaining his possession thereof, and declaring him to be the owner of the property.
On August 1, 2013, Lillian Vickers, as trustee for the Trust, filed an answer and general denial to the petition, asserting that Mr. King had executed an agreement to lease the property on November 1, 1995, thereby acknowledging that his possession of the property was as a lessee and was thus precarious possession, and further that his possession was not then, and had not been thereafter, adverse to the Trust. Ms. Vickers asked for judgment dismissing the suit.
On February 26, 2014, Mr. King filed an amended petition, maintaining that he had begun possessing the property as owner in 1955 when he began using the property to graze his cows. He further asserted that in 1982 he purchased a 40-acre tract, which abutted the subject property on the South.
On November 25, 2014, Mr. King filed a second amended petition, asserting that the subject property was low wetlands and was landlocked by properties owned by Georgia Pacific Corporation, Mr. King's family, and other private landowners. Mr. King maintained that the subject property was accessible only by use of his private road. Mr. King maintained that shortly before he filed suit, the Trust executed three quitclaim deeds on May 20, 2013, assigning a portion of any interest it might have in the property to Ms. Gaspard, Ms. Keating, and Mr. Breazeale, and he maintained that they should be named as defendants in the suit.
On February 6, 2015, the Trust, through Ms. Vickers, along with Ms. Gaspard, Ms. Keating, and Mr. Breazeale, filed an answer to the second amended petition, generally denying the allegations of the petition, asserting that the quitclaim deeds themselves were the best evidence of their contents, and maintaining that in the November 1, 1955 lease agreement, Mr. King acknowledged that his possession of the property was as lessee, and thus precarious, and that his possession was not and had never been adverse to defendants.
The defendants also asserted a reconventional demand, maintaining that the shortest route from the subject property to the nearest public road traversed Mr. King's adjacent property, and thus, they maintained that they were entitled to a predial servitude of passage over Mr. King's property. Defendants asked that Mr. King's claims be dismissed and that a servitude of passage be recognized across Mr. King's property.
On March 2, 2015, Mr. King filed an answer to the reconventional demand, asserting that there were properties other than his that were more appropriate for access to defendants' property. Mr. King asked for judgment in his favor, and against defendants, confirming and quieting his title to the subject property, recognizing him as the sole owner of the property, and dismissing the reconventional demand.
On September 16, 2015, the parties filed a joint motion to sever the reconventional demand. On November 4, 2015, the trial court signed a judgment severing the reconventional demand from the main demand. The case proceeded to a trial of the main demand on April 13, 2016. Afterward, the trial court found in favor of the defendants, and against Mr. King, and the case was dismissed with prejudice by judgment signed on May 13, 2016. Mr. King appealed that judgment.
Mr. King makes the following assignments of error:
1. The trial court erred in finding that [Mr. King] failed to establish that he maintained corporeal possession of the property in question for thirty years.
2. The trial court erred in finding that [Mr. King] failed to prove that he had the intent to possess as owner the property in question.
3. The trial court erred in finding that the testimony presented by [Mr. King] was not credible as there was no evidence presented by [defendants] to dispute the facts as presented by Mr. King and his witnesses.
DISCUSSION
Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith. La. C.C. art. 3486. For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed. La. C.C. art. 3487. To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. La. C.C. art. 3424. 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. Kadair v. Hampton, 2013-1171 (La. App. 1 Cir. 7/10/14), 146 So.3d 694, 702, writ denied, 2014-1709 (La. 11/7/14), 152 So.3d 177.
It is well settled that a court of appeal may not set aside a trial court's or jury's finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
Where documents or objective evidence so contradict the witness's story or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844-45.
Mr. King testified that he used the property "like it was mine." He testified that "I thought the property was just property no one owned, really. It was just a piece of woods that no one was ever on, and I just took it over and used it for myself."
Walter Pierce, Ms. Jenkins's cousin, testified that Mr. King had approached him about purchasing the subject property from Ms. Jenkins, but that she was not interested in selling it but agreed she would lease it to him. Mr. Pierce testified that thereafter he, Mr. King, and Ms. Jenkins met at Ms. Jenkins' house, and Mr. King and Ms. Jenkins signed the lease agreement in front of him.
At his deposition on April 16, 2015, Mr. King testified in part:
Q. So you put your two cattle on the subject property in 1955?
A. Which no one owned as far as I was concerned, as a kid I didn't know anyone owned it and I just used it.
Q. Well, you didn't know who owned it, right?
A. No.
Q. But you figured somebody owned it, right?
A. Yes, and know [sic] I guess you're going - you're fixing to sue me for getting on it to cut my logs off of it I guess but I did, yes. I did that, yes.
Mr. King testified in part on cross-examination:
Q. Did you ask Walter Pierce to talk to Dola on your behalf about selling the property to you?
A. I don't recall none of that. I knew Walter, like I said. I knew Walter from coming into the building supply. And we could have talked about it. We could have talked about it.
Q. So it could have happened?
A. I didn't ask Walter could I lease the property. Why would I want to lease it? I've had it all my life.
Q. Well, why would you want to buy it if you've had it all your life?
A. I don't recall asking him about buying it or leasing it.
Q. Okay. But it's possible that you could have asked Walt to go to Ms. Dola Jenkins and ask her to sell the property to you. That's possible?
A. Anything could be possible, but I didn't ask him to do that because I was using it anyway.
Q. If you had done that, you would have known or thought that Dola Jenkins was the owner of the property; wouldn't you?
A. I didn't do that.
Q. You didn't do that?
A. No.
Q. You did not ask Walt to talk to her about selling the property to you?
A. No, I didn't. I had the property.
Q. Did you lease the property from Dola Jenkins?
A. I did not lease the property. That's what I'm saying. Why would I lease it when I had it?
Q. That's an excellent question. Mr. Magee showed you a copy of the lease that purports to bear your - -
A. That's the first time I ever saw that or knew anything about that.
Q. When was that?
A. When Magee showed me.
Q. That was after you filed the lawsuit. Correct?
A. Yes.
Q. I think Mr. Magee showed you that lease, or a copy of it, just a few minutes ago, and you said that was not your signature?
A. It's not.
Q. Honestly, your testimony is, today, you did not sign that lease?
A. I did not.
Q. Like you say, it's true, isn't it, that if you believed you owned the property, you would have had no reason to lease it?
A. Correct. What did you say that I said?
Q. I said if you believed you owned the property, you would have had no reason to lease it.
A. You said if I knew I owned it, or believed I owned it. I believe I have used the property all my life. If that creates ownership, fine, but I used it all my life. So I didn't want to lease it. Why would I want to lease it?
The trial court found in this case:
I have a couple of problems with this case concerning Mr. King. First of all, he got up here and he testified that he had never seen that lease document before; he didn't know anything about it. Then we have [Walter] Pierce who said that he had prepared it and that Mr. King signed it in his presence. So the Court has to take that into account when I make a decision on this case, because a lot of what I have to buy is coming from Mr. King and, to me, by him
saying that he's never seen that lease agreement, I have to question whether or not his entire testimony in this trial was accurate.
The second problem is that he got up and said he didn't think anybody owned the piece of property. Well, when he went on the property, there was barbed wire there. Even though some of it had fallen down, he acknowledged that there was barbed wire all around the property.
So I don't think Mr. King has proven the facts necessary for me to grant him ownership of this property, so I'm dismissing his petition at his cost.
The trial court's factual determination that Mr. King did not possess the property as owner for 30 years is entitled to great deference. The trial court simply did not find Mr. King's testimony credible. After a thorough review of the record, keeping in mind that reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable, we cannot say that the trial court committed manifest error or was clearly wrong in its determination. See Rosell, 549 So.2d at 844. Thus, we affirm the trial court judgment.
CONCLUSION
For the foregoing reasons, the May 13, 2016 trial court judgment rendered in favor of the Dola Ease Pierce Jenkins Trust, Pamela Keating, Robin Gaspard, and James Breazeale, and against James Everett King, dismissing the suit with prejudice, is affirmed. Costs of this appeal are assessed against James Everett King.
AFFIRMED.