Charles Tolmas, Inc. v. Lee

903 So. 2d 661, 2005 La. App. LEXIS 1464, 2005 WL 1278356
CourtLouisiana Court of Appeal
DecidedMay 31, 2005
DocketNo. 05-CA-79
StatusPublished

This text of 903 So. 2d 661 (Charles Tolmas, Inc. v. Lee) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charles Tolmas, Inc. v. Lee, 903 So. 2d 661, 2005 La. App. LEXIS 1464, 2005 WL 1278356 (La. Ct. App. 2005).

Opinion

1 ¡.THOMAS F. DALEY, Judge.

The plaintiff, Charles Tolmas, Inc., in Liquidation, filed a declaratory action against Calvin Lee (hereinafter referred to as Lee), deceased seeking a judgment declaring that Lee had no ownership interests in a certain portion of land. ■ Lee responded with Exceptions of Liberative and/or Acquisitive Prescription and No Cause of Action. The trial court ruled in favor of Lee, finding Lee acquired the property in question by thirty year acquisitive prescription. For the reasons that follow, we affirm as amended.

FACTS:

The parties owned property adjacent to each other on Metairie Road. The Tolmas property is at the corner of Metairie Road and Tolkalon Place and the Lee property is located on the intersections of Metairie Road, Fagot Street, and Metairie Court. In 1951, Lee built a building on his property very near its boundary with the Tolmas property. Lee operated a dry cleaning business in the building from the time the building was completed until some time in the 1970’s. |3 After that time, the building was divided in two and the front portion of the building continued to house a dry cleaning business, while the back of the building was rented to various tenants. From the time the building was completed, customers and employees of the business used a triangular shaped area on the west side of the building as a parking area. This area is located on the right side of the building facing the building. In the late 1980’s a member of the Tolmas family contacted a member of the Lee family in reference to the Lee family’s use of the property on the west side of the building. In 1998, the declaratory action that forms the basis of this appeal was filed requesting a judgment declaring that the Lees had no ownership interest or rights in the property in question, the location of the property line separating the properties, and ordering that the encroachments be removed. A hearing was held on the Lees’ Exceptions of Liberative and Acquisitive Prescription.

At the hearing the parties stipulated to a survey, which depicted a triangular piece of land that was being used by the Lees. The survey identified a sign post base located approximately four feet from the Lee building. This post held the sign for Lee’s Cleaners and was placed there in cement when the building was constructed. The parties also stipulated that the property in dispute is titled in the name of plaintiff.

The Lees presented several witnesses who testified as to the Lee family’s use and care of the property in question. Peter Hagen, III testified that he became a customer of Lee’s Cleaners in 1954. He explained that he always parked on the right side of the building. Mr. Hagen further testified that there was an area of concrete and shells on the right side of the building that had been there since the building was built. This area was used for parking. Mr. Hagen also testified that when parades passed on Metairie Road the Lees would rope off the area to the | ¿right of the building for friends and family to park. He explained that the Lees cut the grass in the area just to the right of the parking area. The grass on the Tolmas [663]*663vacant lot farther to the right was not cut regularly and often contained high weeds. Mr. Hagen testified that the cemented portion and gravel portion of the parking lot, as well as the area of grass cut by the Lees had remained the same size over the years.

Lyndel Brauninger testified that her parents were friends of the Lees and patronized their dry cleaning business. Her earliest recollection of the building was in the early 1960s. She identified a photograph of her mother standing on the side of the building in the area that the Lees roped off for family and friends for parades. Ms. Brauninger also identified doors on the right side of the building that were used by employees and deliveries to the building. She testified that awnings had always been over these doors. Ms. Brauninger testified that the concrete parking area had always been there and was always the same size. She explained that it was easy to determine where the Lee property ended because the grass next to the Lee property was always very high.

Laura Greco testified that she had known Patrick Lee, son of Calvin Lee since she was a teenager. She patronized the Lee’s dry cleaning business and attended parades there. Ms. Greco testified that the area between the building and the telephone pole on the right side of the building was used for parking for the business. In the late 1980s, Ms. Greco was a tenant in the Lee building. The front door of her shop was on the right side of the building.

Patrick Lee testified that Lee’s Cleaners had doors on the right side of the building. The center door was used for deliveries and employee’s entrance. The back door was used for ventilation. Mr. Lee testified that the sign pole had been there since the building was constructed and the cement and shelled parking area |Rwas always in the same area. He explained that there was a clear distinction between the Lee property and the Tolmas property because the grass around the parking area was always cut while the grass on the Tolmas property was always high.

The Lees submitted three depositions into evidence. Eighty-year-old Men Lee testified that he is Calvin Lee’s brother. He testified that the Lee’s Cleaners sign and the parking area to the right of the building had been there since the cleaners opened. He further testified that the concrete parking area was poured around the same time the building was built. Men’s wife, Helen, testified that she married her husband in 1946. Mrs. Lee testified that the sign and parking lot had been there as long as the building was there. Sandra Lee, daughter of Helen and Men, testified that the parking area and sign had been there as long as she remembered.

Eighty-four-year-old Oscar Tolmas testified that he had always lived in the New Orleans area. He had a law office two blocks from the property in question and passed this area four to five times a week. Mr. Tolmas testified that there was a concrete area on the property that connected the sidewalks on Metairie Road and Fagot Street when his family acquired the property in 1944. He testified that the family never developed their property on the corner of Metairie Road and Tolkalon Place and that he did not care if the cleaner’s customers parked on the area. He further testified that members of the church across the street also parked on his property. Mr. Tolmas testified that in 1987 or 1988 he noticed that there were businesses opening in the Lee building that put up awnings and planters. He viewed these as encroachments of the property and contacted the Lee family. Mr. Tolmas explained that this was the first time he saw [664]*664activity he perceived as encroachments on the Tolmas property. He further testified that the concrete and Rshelled areas had increased in size since that time. Mr. Tolmas stated that he was unsuccessful in locating the survey of the property performed when the purchase was made. Surveys from 1985 and 1988 were admitted into evidence. They depict a triangular shaped concrete area and a gravel or shelled area along side the building. A comparison of the surveys indicates that the shelled parking area is larger in the 1988 survey than it is on the 1985 survey. Mr. Tolmas testified that the 1985 survey accurately reflected the condition of the property in 1968 (thirty years before the declaratory action was filed.)

Dr. Hyman Tolmas, Oscar’s brother, testified that he had an office two blocks away from the property in question for 51 years.

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903 So. 2d 661, 2005 La. App. LEXIS 1464, 2005 WL 1278356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-tolmas-inc-v-lee-lactapp-2005.