Marlene E. Richardson v. Clifton Garcie

• Court: Louisiana Court of Appeal
• Decided: March 4, 2009
• Docket: CA-0008-1209
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-1209

MARLENE E. RICHARDSON

VERSUS

CLIFTON GARCIE

************

APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT, PARISH OF SABINE, NO. 58,794 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Jimmie C. Peters and Michael G. Sullivan, Judges.

REVERSED AND REMANDED. William D. Dyess Dyess Law Firm, L.L.C. Post Office Drawer 420 Many, LA 71449 (318) 256-5667 COUNSEL FOR PLAINTIFF/APPELLANT: Marlene E. Richardson

John W. Pickett Attorney at Law Post Office Box 250 Many, LA 71449 (318) 256-3846 COUNSEL FOR DEFENDANT/APPELLEE: Clifton Garcie PETERS, J.

This matter is before the court on the issue of whether a summary judgment

dismissing the possessory action brought by the plaintiff, Marlene E. Richardson,

against the defendant, Clifton Garcie, was properly granted by the trial court. For the

following reasons, we conclude that genuine issues of material fact remain

unresolved, reverse the trial court’s grant of summary judgment, and remand the

matter for further proceedings.

DISCUSSION OF THE RECORD

This is a possessory action brought by Marlene E. Richardson wherein she

seeks to be recognized as the owner by acquisitive prescription of 1.609 acres of

immovable property in Section 4, Township 7 North, Range 13 West, in Sabine

Parish, Louisiana. Named as defendant is Clifton Garcie, the record owner of

immovable property which includes the acreage at issue.

Ms. Richardson owns a 10.87 acre tract of immovable property in the said

Section, Township, and Range which she purchased in April of 1984 from Melvin

Ezernack.1 The 10.87 acres is a part of a sixty-acre tract which was the subject of a

partition by the then co-owners in August of 1960. In that partition, Mr. Garcie

acquired ownership of approximately thirty acres described in the partition deed as

the Southeast Quarter of the Northwest Quarter of the Northwest Quarter and the East

Half of the Southwest Quarter of the Northwest Quarter of Section 4, Township 7

North, Range 13 West. In the same transaction, Elvira Garcie Hebert acquired the

acreage now owned by Ms. Richardson, described as the East Half of the Southwest

1 The trial reference to Ms. Richardson’s date of acquisition is not found in the evidence presented, but only in Mr. Garcie’s brief filed in support of his motion for summary judgment. The brief states that Ms. Richardson acquired the property from Mr. Ezernack by a conveyance recorded in Conveyance Book 389, Page 707 of the records of Sabine Parish, Louisiana, on April 11, 1984. Because the parties seem to accept this date as accurate, for the purpose of our evaluation, we will accept it as well. Quarter of the Northwest Quarter of the Northwest Quarter and the East Half of the

Northwest Quarter of the Southwest Quarter of the Northwest Quarter of the said

Section, Township, and Range. At some point thereafter,2 Mr. Ezernack acquired Ms.

Hebert’s property and, as previously stated, transferred it to Ms. Richardson in April

of 1984. Ms. Richardson’s property is bounded on the east by Mr. Garcie’s property.

A fence inside Mr. Garcie’s property line which runs generally parallel to the property

line sets off the 1.609 acres at issue in this litigation.3

In her possessory action, Ms. Richardson asserted that the 1.609 acres has been

possessed by her or her ancestors in title for a period in excess of thirty years and that

she had possessed it in excess of one year prior to filing suit. In response, Mr. Garcie

asserted that the fence was never meant to be a division line of the property and,

therefore, acquisitive prescription never began to run against him. In granting the

motion for summary judgment, the trial court agreed with Mr. Garcie.

OPINION

Ms. Richardson argues on appeal that the trial court erred in granting Mr.

Garcie’s motion for summary judgment. In doing so, she asserts that unresolved

genuine issues of material fact still exist. Specifically, she alleges that there are

material issues of fact concerning the date of installation and the original purpose of

the fence that Ms. Richardson claims marks the edge of the property that she has

acquired by acquisitive prescription. We agree.

2 The record does not establish when Ms. Hebert divested herself of ownership of the property she acquired in the partition. 3 An August 2001 survey prepared by Benjamin K. Fontenot, a registered professional land surveyor, a copy of which is in the record, shows the location of the fence in detail. It begins east of Mr. Garcie’s western boundary, slightly north of the southern common corner of the litigants’ property, and runs generally north at a slight eastward angle. The effect of the fence is to create a triangular, or pie-shaped tract, containing 1.609 acres between the litigants’ common boundary and the fence.

2 A summary judgment shall be granted “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to material fact, and that mover is entitled to

judgment as a matter of law.” La.Code Civ.P. art. 966(B). In discussing the law

pertaining to summary judgment procedure our supreme court has stated the

following:

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Louisiana Code of Civil Procedure art. 966(C)(2) provides:

(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, motion, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Hines v. Garrett, 04-806, pp. 1-2 (La. 6/25/04), 876 So.2d 764, 765-66 (alteration in original).

3 In the matter before us, Ms. Richardson will bear the burden of proof at trial.

Therefore, Mr. Garcie need only establish that there is an absence of factual support

for one or more elements essential to Ms. Richardson’s claim.

Ms. Richardson is attempting to claim ownership of immovable property based

on acquisitive prescription of thirty years’ possession pursuant to La.Civ.Code art.

3486. That requires a showing of possession for thirty years “without the need of just

title or possession in good faith.” La.Civ.Code art. 3486. Here, Ms. Richardson only

took possession of the property when she bought it in 1984. Thus, she must “tack”

the possession of her ancestors in title in order to establish possession for the

requisite thirty years. La.Civ.Code. art. 3442. In order for Ms. Richardson to apply

the principle of “tacking,” she must prove that she and her ancestors exercised

possession of the disputed tract up to a visible boundary since the tract is not included

within her title. McDaniel v. Roy O. Martin Lumber Co., Inc., 560 So.2d 676

(La.App. 3 Cir. 1990). Ms. Richardson alleges that she and her ancestors in title have

possessed the disputed land as their own, arguing that they considered the fence as

the boundary of their property. See Trahan v. Frankland, 317 So.2d 298 (La.App. 3

Cir. 1975).

In support of his motion for summary judgment, Mr. Garcie filed an affidavit

executed by Ms. Hebert and filed his own affidavit. In her affidavit, Ms. Hebert

asserted that the fence on Mr. Garcie’s property was constructed in the mid-1950’s,

at a time when she owned the property now owned by Ms. Richardson, and that it

“was never intended to represent a dividing or ownership line between the land

owners.”

4 In his affidavit, Mr. Garcie said that he had lived on his thirty acres before it

was partitioned and that he had “constructed a fence upon a portion of the 30 acres

prior to the partition.” Mr. Garcie also asserted in his affidavit that the boundary

between his land and Ms. Hebert’s “was never specifically measured and marked until

surveyed by Benjamin K. Fontenot in August, 2001.”

Mr. Garcie also asserted in his affidavit that he had taken affirmative steps to

maintain possession of the property. Specifically, Mr. Garcie said that:

In 2002, Marlene Richardson, the owner of the Richardson property, arranged for timber to be cut from this land. Upon these timber cutters attempting to cross the line now depicted by Fontenot as Richardson’s east land line, Affiant stopped and prevented any cutting or harvesting east of this line. Affiant, prior to the timber cutting noted above requested that James Ezernak move his mobile home from these same lands. This request was made through Plaintiff and she promptly effected this removal. Affiant directed that a letter be sent through retained counsel to Plaintiff on July 12, 2005 directing and requesting she remove certain movables from the land at issue. Plaintiff promptly effected this removal.

Standing alone, the evidence presented by Mr. Garcie establishes that, as

between him and Ms. Hebert, the fence was not the recognized boundary between the

properties at issue. However, it does not establish when Melvin Ezernack, Ms.

Richardson’s ancestor in title, obtained the property nor does it establish the

understanding between Mr. Garcie and Mr. Ezernack concerning the property.

Depending on when Mr. Ezernack obtained the property, and depending on the

relationship he and Mr. Garcie had as pertains to the fence, thirty years might exist

wherein Ms. Richardson could claim adverse possession by tacking onto her

ownership. In fact, to be successful in any event, Ms. Richardson must be able to

tack on Mr. Ezernack’s adverse possession.

5 Furthermore, the evidence presented by Mr. Garcie does not stand alone. In

opposition to Mr. Garcie’s motion for summary judgment, Ms. Richardson introduced

testimony given by Mr. Garcie on January 6, 2003, in an earlier proceeding

concerning Ms. Richardson’s property boundary dispute with Louise Sepulvado

Garcie. When questioned in that litigation concerning the history and intent of the

fence at issue in this litigation, the following exchange took place:

Question. Now, when your dad - - let me back up a little bit. When your dad had it before it was divided up, was that land - - did that land have cross fences on it?

Mr. Garcie. No, it didn’t.

Question. It was all open?

Mr. Garcie. Uh huh.

Question. Now, after the division between you and Lucinda and Thelma and your other sister, did anybody put cross fences - - was it cross fenced then?

Mr. Garcie. Well, the only cross fence that was put in there I put one, you know, plum across dividing my thirty on my side.

***

Mr. Garcie. Well, I got a fence that runs plum across splitting my thirty from this thirty over there. I put that fence down there. Like I say I must have put that fence down there about in ‘57.

This testimony appears to assert that Mr. Garcie recognized the fence as a boundary

“dividing [his] thirty” acres.

In reviewing the grant of a summary judgment de novo, we must draw all

reasonable inference in a light most favorable to Ms. Richardson. Hines, 876 So.2d

764. Given the fact that Mr. Garcie’s testimony in the prior proceeding conflicts with

the evidence he presented in support of his motion for summary judgment, we find

6 that there remains an unresolved genuine issue of material fact in this litigation and

that the trial court erred in granting the summary judgment.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s grant of summary

judgment dismissing the demands of the plaintiff, Marlene E. Richardson, against the

defendant, Clifton Garcie, and remand the matter to the trial court for further

proceedings. We assess all costs of this appeal to Clifton Garcie.

REVERSED AND REMANDED.