Greengrove Missionary Baptist Church v. Cox

966 So. 2d 707, 2007 WL 2713276
CourtLouisiana Court of Appeal
DecidedSeptember 19, 2007
Docket42,418-CA
StatusPublished
Cited by8 cases

This text of 966 So. 2d 707 (Greengrove Missionary Baptist Church v. Cox) 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
Greengrove Missionary Baptist Church v. Cox, 966 So. 2d 707, 2007 WL 2713276 (La. Ct. App. 2007).

Opinion

966 So.2d 707 (2007)

GREENGROVE MISSIONARY BAPTIST CHURCH, Plaintiff-Appellee
v.
Lawrence W. COX and Sue Cox, Defendants-Appellants.

No. 42,418-CA.

Court of Appeal of Louisiana, Second Circuit.

September 19, 2007.

*708 Kenneth L. Harper, for Appellants.

Woodrow Wilson, Bastrop, for Appellee.

Before STEWART, GASKINS and PEATROSS, JJ.

*709 GASKINS, J.

The defendants, Lawrence W. Cox and Sue Cox, appeal from a trial court judgment holding that the plaintiff, Greengrove Missionary Baptist Church, owns a disputed piece of property by virtue of 30-year acquisitive prescription. For the following reasons, we affirm in part and reverse in part the trial court judgment.

FACTS

On December 14, 1929, Greengrove Missionary Baptist Church (Greengrove) acquired approximately two acres of property on the banks of Bayou Bartholomew in Morehouse Parish. On November 18, 1942, Greengrove acquired an additional 2.5 acres.[1] Greengrove members believed that the eastern boundary of the church's property extended to Clay Banks Road. The land at issue here is the tract lying west of Clay Banks Road.[2]

Dr. A.B. Gregory and others acquired property to the east of the church property. In 1977, he and his co-owners sold the property to James and Irene West. The deed granted by Dr. Gregory includes this description concerning the boundary with the church's property:

West line of the tract being 341.8 feet in length, being the common boundary line between the property owned by the widow and heirs of Arthur Britton Gregory and of the Green Grove Missionary Baptist Church.

In 1987, the Wests sold the property to the defendants, Lawrence and Sue Cox. Greengrove alleges that in 1993, the Coxes placed some horses on the disputed tract at the east end of the property the church claims to own. Greengrove alleges that it confronted the defendants and the horses were removed.

Then, in 2004, the Coxes placed a mobile home on the west side of Clay Banks Road. Greengrove claimed that it owned the property up to Clay Banks Road and that the road formed the property line between the church's property and that of the Coxes. In April 2005, Greengrove filed a petition for recognition as owner of the immovable property. It cited the actions of the defendants in encroaching on its possession of the east end of its property. The church contended that it employed a surveyor who determined that the eastern line of the plaintiff's property was the center of Clay Banks Road. Greengrove claimed ownership of the disputed property by virtue of their deeds and sought a judgment from the court ordering that the defendants surrender possession of the disputed property to Greengrove and move the trailer.

Trial on Greengrove's claim was held on January 24, 2006. Frank Messinger, III, an expert surveyor, testified on behalf of the church regarding a survey of the property he did in 1993 following the alleged horse incident. Evidence and testimony at trial showed that Greengrove only had title to four and one-half acres of property, but claimed ownership of approximately nine or more acres. Mr. Messinger also testified regarding several discrepancies in the property descriptions in the deeds.

Mr. Messinger determined in 1993 that a previous survey by A.C. Volk used an erroneous point as the southwest corner of one of the lots claimed by Greengrove. Mr. Messinger opined that the eastern line *710 of the church property lies in the center of Clay Banks Road.

Greengrove also presented testimony to show that it used the disputed property over the years and had bushhogged it about once a year. James Canady stated that he had been a member of Greengrove for 40 years and had served as chairman of the deacons for 20 years. He stated that the church always considered the disputed property to belong to the church. Mr. Canady said that there had been an old "seed house" on the property and that there was a little strip of woods between the seed house and the disputed land that Mr. Cox is possessing.

Mr. Cox testified that there is a wooded area which covers about three-fourths of an acre which we surmise is located between the seed house and the old fence row. (The old fence row is to the west of where Mr. Cox has erected his fence.) He said that no one has maintained the wooded area since 1987. He testified that it is 190 feet from the center of Clay Banks Road to the corner that he is claiming.

In February 2006, the trial court rendered a judgment rejecting the plaintiff's claim, and found that the church did not prove that it had title to the disputed property up to Clay Banks Road. According to the court, while Greengrove sought to advance the "acquisitive prescription" component of La. C.C.P. art. 3653 at trial, nowhere in their petition or pretrial statement was this alleged.[3] Therefore, the trial court refused to consider whether Greengrove had proved ownership of the property by acquisitive prescription. The court also found that the plaintiff's survey efforts and the testimony of Mr. Messinger were vague and ambiguous. Accordingly, the trial court ruled in favor of the defendants. We agree that the church failed to carry its burden of proving that its two deeds conveyed ownership of the disputed property.

On March 10, 2006, Greengrove sought to file an amended petition claiming that it acquired ownership of the disputed property by virtue of deed and by acquisitive prescription of the disputed property up to Clay Banks Road. Greengrove also filed a motion for partial new trial, claiming that the trial court judgment was contrary to the law and the evidence with respect to the issue of acquisitive prescription. The trial court conducted a hearing on the motion in April 2006, and granted a partial new trial on that issue. The trial court denied permission to file the amended petition with a notation indicating that the filing was disallowed because the motion for partial new trial was granted.

The trial court heard evidence on the partial new trial on August 10, 2006, concentrating on the issue of whether Greengrove could establish ownership of the disputed tract by acquisitive prescription. In September 2006, the trial court entered judgment in favor of Greengrove and against the defendants, recognizing the church as the legal owner of the property in dispute and finding that the dividing line between Greengrove and the defendants is *711 Clay Banks Road. The defendants were ordered to surrender possession of the property west of Clay Banks Road to Greengrove and to move the trailer from the property within 60 days of the time the judgment becomes final.

In reasons for judgment, the trial court noted that it originally ruled against Greengrove, finding that they did not have title to the disputed property. The matter returned to the court on the limited issue of whether Greengrove obtained ownership of the property through acquisitive prescription by possessing for ten or 30 years. The trial court found that Greengrove had established ownership of the property by 30-year acquisitive prescription, from 1961 to 1991, in such a way as to give notice to the world that their possession was being exercised. The defendants appealed suspensively.

AMENDED PETITION AND MOTION FOR PARTIAL NEW TRIAL

The defendants urge that in granting a partial new trial to receive testimony on the issue of acquisitive prescription, the trial court erred in allowing an amendment to the plaintiff's pleadings.

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Cite This Page — Counsel Stack

Bluebook (online)
966 So. 2d 707, 2007 WL 2713276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greengrove-missionary-baptist-church-v-cox-lactapp-2007.