Jefferson Parish School Board Versus Timbrian, LLC

• Court: Louisiana Court of Appeal
• Decided: October 20, 2021
• Docket: 21-CA-67
• Status: Unknown

Opinion

JEFFERSON PARISH SCHOOL BOARD NO. 21-CA-67

VERSUS FIFTH CIRCUIT

TIMBRIAN, LLC COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 745-335, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

October 20, 2021

MARC E. JOHNSON JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

AFFIRMED MEJ FHW RAC COUNSEL FOR PLAINTIFF/APPELLANT, JEFFERSON PARISH SCHOOL BOARD Olden C. Toups, Jr.

COUNSEL FOR DEFENDANT/APPELLEE, TIMBRIAN, LLC Scott L. Sternberg M. Suzanne Montero Michael S. Finkelstein Joseph R. Marriott JOHNSON, J.

Plaintiff/Appellant, the Jefferson Parish School Board (hereinafter referred

to as “the School Board”) appeals the partial summary judgment concerning the

ownership of certain immovable property in favor of Defendant/Appellee,

TimBrian, L.L.C. (hereinafter referred to as “TimBrian”), from the 24th Judicial

District Court, Division “C”. For the following reasons, we affirm the trial court’s

judgment.

FACTS AND PROCEDURAL HISTORY

This matter arises from a dispute regarding ownership of a piece of

immovable property used as a playground in front of Metairie Academy for

Advanced Studies (hereinafter referred to as “the Property”) in Jefferson Parish.

This is the third appeal before this Court concerning the Property.1 The facts

pertinent to this appeal are as follows. TimBrian purchased the Property at a 2010

tax sale and subsequently filed a petition for monition to cure any defects in the tax

sale and to quiet tax title to the Property. The School Board filed a petition to

annul the tax sale, wherein it asserted ownership of the Property. The Parish of

Jefferson (hereinafter referred to as “the Parish”) intervened in the matter, also

claiming ownership of the Property. The School Board amended its petition and

alleged that the Parish is the owner of the Property. Alternatively, the School

Board alleged that it acquired ownership of the property and predial servitudes

through acquisitive prescription.

On May 8, 2020, TimBrian filed a motion for partial summary judgment,

contesting the School Board’s ownership of the Property. In its motion, TimBrian

alleged that the School Board could not, as a matter of law, have any claim to full

1 Recitations of the facts and procedural history can be found in Jefferson Parish School Board v. TimBrian, LLC, 17-668 (La. App. 5 Cir. 3/28/18); 243 So.3d 749 and Jefferson Parish School Board v. TimBrian, LLC, 18-349 (La. App. 5 Cir. 5/9/19); 273 So.3d 528, writ denied, 19-954 (La. 9/24/19); 279 So.3d 388.

21-CA-67 1 ownership of the Property by means of acquisitive prescription. It also alleged the

School Board could not claim full ownership of the Property because the School

Board judicially confessed that it is not the owner. The School Board opposed the

motion, arguing that it possessed the entirety of the Property for more than 30

years. The School Board asserted that genuine issues of material fact remained as

to whether it acquired ownership of the property through acquisitive prescription

that warranted a trial.

The motion for partial summary judgment was heard on September 10,

2020. At the conclusion of the hearing, the trial court orally found that the School

Board failed to provide any evidence that would suggest it could acquire the

Property under the acquisitive prescription law. The trial court found that Parish

of Jefferson v. Bonnabel Properties, Inc., 620 So.2d 1168 (La. 1983) was

controlling jurisprudence that prohibited the School Board, as a political

subdivision, from acquiring full ownership of the Property through acquisitive

prescription. In a written judgment rendered on the same day of the hearing, the

trial court granted TimBrian’s motion for partial summary judgment. The trial

court dismissed the School Board’s claim for full ownership of the Property. The

instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, the School Board alleges: 1) the trial court erred in failing to

determine that the School Board has not judicially denied ownership of the

Property; and 2) the trial court erred in determining the School Board has no claim

to ownership by acquisitive prescription.

LAW AND ANALYSIS

General Summary Judgment Law

The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action and is favored. La. C.C.P. art.

21-CA-67 2 966(A)(2). Appellate courts review summary judgments de novo under the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate. Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5 Cir.

9/19/18); 254 So.3d 1254, 1257, citing Batiste v. United Fire & Casualty Co., 17-

485 (La. App. 5 Cir. 3/14/18); 241 So.3d 491, 496. Summary judgment shall be

granted “if the motion, memorandum, and supporting documents shows that there

is no genuine issue as to material fact and that the mover is entitled to judgment as

a matter of law.” Id., quoting La. C.C.P. art. 966(A)(3).

A material fact is one that potentially insures or prevents recovery, affects a

litigant’s ultimate success, or determines the outcome of the lawsuit. Populis v.

State Department of Transportation and Development, 16-655 (La. App. 5 Cir.

5/31/17); 222 So.3d 975, 980, quoting Pouncy v. Winn-Dixie La., Inc., 15-189 (La.

App. 5 Cir. 10/28/15); 178 So.3d 603, 605. An issue is genuine if it is such that

reasonable persons could disagree. If only one conclusion could be reached by

reasonable persons, summary judgment is appropriate as there is no need for trial

on that issue. Id. Whether a particular fact in dispute is material for purposes of

summary judgment can only be determined in light of the substantive law

applicable to the case. Stogner, 254 So.3d at 1257, citing Jackson v. City of New

Orleans, 12-2742 (La. 1/28/14); 144 So.3d 876, 882, cert. denied, 574 U.S 869,

135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

The party moving for summary judgment bears the burden of proof.

Stogner, supra, citing La. C.C.P. art. 966(D)(1). However, if the mover will not

bear the burden of proof at trial, the moving party must only point out that there is

an absence of factual support for one or more elements essential to the adverse

party’s claims. Id. Thereafter, the burden shifts to the adverse party to produce

factual support sufficient to establish that he will be able to satisfy his evidentiary

burden of proof at trial. Id. If the adverse party fails to meet this burden, there is

21-CA-67 3 no genuine issue of material fact, and the mover is entitled to summary judgment

as a matter of law. Id. Once the motion for summary judgment has been properly

supported by the moving party, the failure of the adverse party to produce evidence

of a material factual dispute mandates the granting of the motion. Id., citing Babin

v. Winn Dixie La., Inc., 00-78 (La. 6/30/00); 764 So.2d 37, 40.

Judicial Confession and Acquisitive Prescription2

The School Board alleges the trial court erred in determining that it has no

claim to ownership of the Property through acquisitive prescription. It argues that

the trial court erroneously relied upon Parish of Jefferson v. Bonnabel Properties,

Inc., 620 So.2d 1168 (La. 1983). It contends that the Louisiana Supreme Court’s

ruling in Bonnabel Properties, Inc., which held that political subdivisions cannot

obtain ownership of immovable property through acquisitive prescription, missed

the true legislative intent of Louisiana Constitution, Article VI, Section 24. The

School Board avers that the true legislative intent allowed local governmental

subdivisions to acquire property through acquisitive prescription, and the

misinterpretation of the legislative intent needs to be rectified.

The School Board further alleges the trial court erred in failing to determine

that it has not judicially confessed that it is not the owner of the Property. It argues

that it has repeatedly put forth its claim to ownership of the Property.3 Even

though the School Board acknowledges that it has asserted the Parish is the owner

of the Property and it does not have actual legal title to the Property, it contends

that neither of those admissions constitute unequivocal judicial confessions that the

School Board does not own the Property. The School Board maintains that being

the actual owner of the Property is not necessary in this instance because it

2 The assignments of error are interrelated and will be jointly discussed. 3 The School Board also argues that it has set forth claims for right of passage, right of use, right of way, and usufruct. TimBrian’s motion for partial summary judgment and the judgment rendered by the trial court only addressed the issue of whether the School Board could acquire full ownership through acquisitive prescription. Therefore, the School Board’s claims to rights of predial servitudes are not properly before this Court for review.

21-CA-67 4 acquired ownership of the Property through acquisitive prescription.

TimBrian argues that the trial court did not err in its judgment because the

School Board failed to defeat the motion for partial summary judgment. Since

there were no facts being disputed, TimBrian maintains that the School Board

offered no convincing argument as to why Bonnabel Properties, Inc. should be

overturned. It asserts that the supreme court considered the legislative intent of

Louisiana Constitution, Article VI, Section 24; Bonnabel Properties, Inc. is settled

law; and the supreme court has not seen fit over the last three decades to overturn

that decision. TimBrian further maintains that the School Board has judicially

confessed that it does not own the Property; therefore, the School Board has

unequivocally waived its claim to any ownership interest in the Property.

In its motion for partial summary judgment, TimBrian asserted that,

pursuant to Bonnabel Properties, Inc., the School Board could not, as a matter of

law, have any claim to full ownership of the Property by means of acquisitive

prescription through adverse possession. After reviewing that jurisprudence, we

agree.

In Bonnabel Properties, Inc., supra, the Parish sought to quiet title to

alleyways it included within fenced tracts of land. The alleyways had been

dedicated strictly to the use of the lot owners adjacent to the alleyways prior to the

Parish’s purchase of its tracts of land. On review, the supreme court considered

the narrow issue of whether a political subdivision of the state could acquire title to

immovable property through 30-year acquisitive prescription. Id. at 1169.

In its analysis, the supreme court examined Louisiana Constitutional Article

VI, Sections 23 and 24. In finding that a political subdivision cannot acquire full

ownership of immovable property through acquisitive prescription, the court held,

Finally, Article VI, Sect 24’s express recognition that acquisitive prescription should run in favor of political subdivisions with respect to servitudes reflects the constitutional framers’

21-CA-67 5 consideration of the possibility of a political subdivision obtaining property through acquisitive prescription. Despite their consideration of this possibility, the framers refrained from granting political subdivisions this right with respect to acquisition of full ownership of property. We can only conclude that this was a deliberate omission on the part of the framers.

Id. at 1171.

The case at bar presents the same issue considered in Bonnabel Properties,

Inc.: whether the School Board, a political subdivision of the state, can acquire title

to immovable property through 30-year acquisitive prescription. In following the

Louisiana Supreme Court’s jurisprudence, we are constrained to find that the

School Board cannot acquire title to the property at issue in this matter through

acquisitive prescription.4 Consequently, without acquisition through acquisitive

prescription, we find the School Board’s full ownership claim of the Property fails.

Its assertions that the Parish is the owner of the Property and the School Board

does not have actual legal title to the Property further refute its claim of ownership

of the Property.

DECREE

After de novo review, we find that the Jefferson Parish School Board cannot

acquire the Property through acquisitive prescription. Therefore, we find that

TimBrian, L.L.C. is entitled to partial summary judgment, as a matter of law, and

affirm the trial court’s partial summary judgment in favor of TimBrian, L.L.C.5

4 As an intermediate appellate court, we are bound to follow the decisions of the Louisiana Supreme Court. LaFourche Parish Water District No. 1 v. Digco Utility Construction, L.P., 18-1112 (La. App. 1 Cir. 3/13/19); 275 So.3d 20, 25, writ denied, 19-577 (La. 6/17/19); 274 So.3d 1257. See also, Latino v. Binswanger Glass Co., 532 So.2d 960 (La. App. 5th Cir. 1988). “In particular, when a question is not specifically regulated by statute and the Supreme Court has made the only available definitive ruling and the last expression of law as to the issue, we must follow those rulings.” Digco Utility Construction, L.P., supra, citing Oliver v. Magnolia Clinic, 11-2132 (La. 3/13/12); 85 So.3d 39, 44; Cavalier v. State, ex rel. Department of Transporation and Development, 08-561 (La. App. 1 Cir. 9/12/08); 994 So.2d 635, 641. 5 We note that TimBrian urged, for the first time on appeal in its brief, that the School Board does not have a right of action or a cause of action for acquisitive prescription. An appellate court may consider a peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for decision, and if proof of the ground of the exception appears of record. La. C.C.P. art. 2163. However, consideration of such an exception is discretionary with the appellate court. Gutierrez v. Bruno, 19-1537 (La. App. 1 Cir. 8/5/20); 310 So.3d 560, 564 n. 4, citing Southern States Masonry, Inc. v. J.A. Jones Const. Co., 507 So.2d 198, 207 (La. 1987). Because we find no error in the trial court’s judgment, we decline to address the peremptory exceptions.

21-CA-67 6 The Jefferson Parish School Board is assessed the costs of this appeal.

AFFIRMED

21-CA-67 7 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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21-CA-67 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE) OLDEN C. TOUPS, JR. (APPELLANT) GUICE A. GIAMBRONE, III (APPELLEE) M. SUZANNE MONTERO (APPELLEE) MICHAEL S. FINKELSTEIN (APPELLEE) SCOTT L. STERNBERG (APPELLEE)

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