REVISED United States Court of Appeals,
Fifth Circuit.
No. 96-30670
Summary Calendar.
SONGBYRD, INC., Plaintiff-Appellant,
v.
BEARSVILLE RECORDS, INC.; Albert B. Grossman, Estate of, erroneously sued as Bearsville Records, Inc., doing business as Bearsville Records, Defendants-Appellees.
Feb. 4, 1997.
Appeal From the U.S. District Court for the Eastern District of Louisiana.
Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant SongByrd, Inc. (SongByrd) appeals from the
district court's dismissal of its action seeking to recover from
Defendant-Appellee the Estate of Albert B. Grossman d/b/a
Bearsville Records (Bearsville), several master tapes recorded by
a legendary New Orleans musician. Concluding that (1) the district court improperly classified SongByrd's suit as a personal rather
than a real action, (2) real actions are imprescriptible under
Louisiana law, and (3) Bearsville has yet to establish that it gave
SongByrd's predecessors-in-interest actual notice of Bearsville's
intent to possess the tapes for itself, we reverse the district
court's summary judgment ruling and remand for further proceedings
consistent with this opinion.
I FACTS AND PROCEEDINGS
The late Henry Roeland Byrd, also known as "Professor
Longhair," was an influential New Orleans rhythm-and-blues pianist
and composer, and is widely regarded as one of the primary
inspirations for the renaissance of New Orleans popular music over
the last thirty years. His numerous hits included original
compositions such as "Tipitina" and "Go to the Mardi Gras," as well
as his famous renditions of Earl King's "Big Chief." After
achieving modest commercial success as a local performer and
recording artist in the 1940's and 1950's, Byrd fell on hard times
during the 1960's. His fortunes began to change for the better in
1970, however, when New Orleans music aficionado Arthur "Quint"
Davis, along with others, founded the New Orleans Jazz and Heritage
Festival ("JazzFest"). Needing talented performers for JazzFest,
Davis located Byrd in 1971 working in an obscure record store in
New Orleans and transformed him into a perennial star attraction of
the JazzFest and other venues from that time until his death in
1980.1
Soon after Byrd's first performance at JazzFest, Davis, acting
as the pianist's manager, and Parker Dinkins, an attorney, arranged
for Byrd to make several "master recordings" at a Baton Rouge
recording studio known as Deep South Recorders. These master
recordings consist of four reels of 8-track tape which could be
"mixed" to produce either demonstration tapes or final recordings
1 These uncontroverted background facts are recounted in the liner notes to the album, Professor Longhair, Houseparty New Orleans Style: The Lost Sessions 1971-72, Rounder Records (1987), which SongByrd submitted as an exhibit in response to Bearsville's motion to dismiss. suitable for the production of records, cassettes, and compact
discs. According to SongByrd, several demonstration tapes produced
from these master recordings found their way to Bearsville Records,
Inc., a recording studio and record company located in Woodstock,
New York and operated by Grossman. Impressed by the demonstration
tapes, Grossman apparently arranged with Davis and Dinkins for Byrd
and another New Orleans musician to travel to Bearsville's studio
for a recording session.
For reasons that are unclear but not material to this appeal,
the Bearsville recording sessions proved unsatisfactory. For
equally unclear reasons, Davis and Dinkins wanted Grossman to be
able either to listen to or play for others the full version of the
Baton Rouge master recordings. In furtherance of this desire,
Davis and Dinkins caused the four "master recording" tapes to be
delivered to Grossman in New York. According to the as yet
unrefuted affidavit of Davis, these tapes were delivered to
Grossman, "as demonstration tapes only, without any intent for
either Albert Grossman or Bearsville Records, Inc. to possess these
aforementioned tapes as owner." Also for reasons as yet not
explained by either party, the tapes remained in Grossman's
possession for many years thereafter.
Acting on behalf of Davis and Byrd in 1975, Dinkins wrote two
letters to Bearsville—the first addressed to a George James, the
second to Grossman himself—requesting that Bearsville return the
master recording tapes. Bearsville made no response whatsoever to
Dinkins' letters (or at least has not introduced any evidence of a
response). Dinkins, for reasons as yet unknown, did not press his request any further.
After Albert Grossman's death in the mid 1980's, Bearsville
Records, Inc. was dissolved, but Grossman's estate continued to do
business as "Bearsville Records." Even though it no longer signs
artists or promotes their products, Bearsville Records still
operates a recording studio which it leases to record labels and
third parties; it also licenses a catalog of recordings by artists
originally under contract with Bearsville Records, Inc. Acting in
this latter capacity, Bearsville licensed certain of the Byrd
master recordings to Rounder Records Corporation of Cambridge,
Massachusetts (Rounder) for an advance against royalties.
In 1987, Rounder released Professor Longhair, Houseparty New
Orleans Style: The Lost Sessions, an album that contained 11 songs
or "tracks" made from Byrd's original Baton Rouge master
recordings. This release garnered Byrd a posthumous Grammy Award
for Best Traditional Blues Album of 1987. The liner notes of the
Rounder album make hardly any reference to Bearsville and no
reference whatsoever to the contractual agreement between Rounder
and Bearsville.2 Bearsville Records also licensed certain of the
master recordings to another record company, Rhino Records (Rhino).
According to SongByrd's petition, Rhino released an album, titled
"Mardi Gras in Baton Rouge," featuring seven tracks from the Baton
Rouge master recordings.
2 The only oblique reference to Bearsville is found in the third section of the liner notes authored by "The Rounder Folks" and states: "Sadly these tapes [the Baton Rouge master recordings] were not released, but instead languished at Bearsville, their absence unremarked and unnoticed except among collectors and a few cognoscenti." In 1993, SongByrd, Inc. was incorporated and commenced
business as successor-in-interest to the intellectual property
rights of Byrd and his deceased widow, Alice Walton Byrd. In 1995,
SongByrd filed this lawsuit in state court in New Orleans against
Bearsville Records, Inc. SongByrd's "Petition in Revindication"
sought a judgment (1) recognizing its ownership of the master
recordings, (2) ordering return of the recordings, and (3) awarding
damages. Bearsville timely removed the suit to federal court and
subsequently filed a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(2) and (6), asserting (a) lack of personal jurisdiction over
Bearsville and (b) failure of SongByrd to state a cause of action
because SongByrd's claims were barred by liberative prescription
under Louisiana law. As both parties submitted affidavits and
exhibits outside the pleadings, however, the district court
correctly treated Bearsville's motion to dismiss as a motion for
summary judgment under Fed.R.Civ.P. 56(c).3 Pretermitting the
question of personal jurisdiction, the district court then granted
the motion and dismissed SongByrd's case. The court held that
SongByrd's action was barred by liberative prescription and also
rejected SongByrd's argument that at all times Bearsville has been
3 Although defenses are generally not the proper subject of Rule 12(b)(6) motions, certain affirmative defenses that clearly appear on the face of the plaintiff’s complaint - most commonly that the statute of limitations has run - may properly be asserted in a Rule 12(b)(6) motion. See Kansa Reinsurance Co., Ltd. v. Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1366 (5th Cir. 1994); 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357, at 352 (1990). As Bearsville submitted affidavits and exhibits in support of its 12(b)(6) motion asserting the affirmative defense of liberative prescription, however, the court rectified any potential pleading deficiency by treating Bearsville’s motion as one for summary judgment under Rule 56(c). only a precarious possessor and therefore prescription has never
commenced to run. SongByrd timely filed its notice of appeal from
the district court's ruling.
II
ANALYSIS
A. Standard of Review
When a district court treats a Rule 12(b)(6) motion as a
motion for summary judgment under Rule 56(c) because matters
outside the pleadings are presented to and not excluded by the
court, we review the grant of such a motion just as we would any
other grant of summary judgment—that is, we review the grant of
summary judgment de novo and apply the same legal standards as the
district court.4 Accordingly, summary judgement is appropriate "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 any material fact and that the
moving party is entitled to a judgment as a matter of law."5
Further, we construe all evidence in the light most favorable to
the non-moving party without weighing the evidence, assessing its
probative value, or resolving any factual disputes.6
B. Applicable Law—Erie-Bound
1. Special Louisiana Erie Considerations
4 Morin v. Caire, 77 F.3d 116, 123 (5th Cir.1996); Nat. Ass'n of Govern. Emp. v. City Public Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 712 (5th Cir.1994). 5 Fed.R.Civ.P. 56(c). 6 Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996). The basis of our jurisdiction, and that of the district court,
to decide the instant case is diversity of citizenship, under which
a federal court's obligation is to apply substantive state law. In
Louisiana this obligation has special dimensions because of our
unique Civilian tradition. We remain ever aware of the late Judge
Rubin's caution to federal Erie courts applying Louisiana Civil law
to steer clear of the common law principle of stare decisis and to
apply instead the distinctly Civilian doctrine of jurisprudence
constante:
Because of the reviewing power of [Louisiana] appellate courts, the [Louisiana] trial judge may pay great respect to the decisions of these courts. He is not bound to do so, however, because the doctrine of stare decisis does not apply. Instead, each judge, trial and appellate, may consult the civil code and draw anew from its principles. Interpretation of the code and other sources of law is appropriate for each judge. The judge is guided much more by doctrine, as expounded in legal treatises by legal scholars, than by the decisions of colleagues.... Instead of stare decisis, the rule is one of deference to a series of decisions, jurisprudence constante.7
Emphatically elaborating on the proposition that Erie "does
not command blind allegiance to [any] case on all fours with the
case before the court,8" now-Chief Judge Politz wrote that:
If anything, this flexibility is even greater when a federal court sits as a Erie court applying the Louisiana civil law. In such cases, "the Erie obligation is to the [Civil] Code, the "solemn expression of legislative will.' " Shelp, 333 F.2d 439 (quoting the very first article of the Louisiana Civil Code). The Louisiana Supreme Court has taken great pains to "plainly state that ... the notion of stare decisis, derived as it is from the common law should not be thought
7 Alvin B. Rubin, Hazards of a Civilian Venturer in a Federal Court: Travel and Travail on the Erie Railroad, 48 La.L.Rev. 1369, 1372 (1988) (citations omitted) (emphasis in original). 8 Shelp v. National Surety Corp., 333 F.2d 431, 439 (5th Cir.), cert. denied, 379 U.S. 945, 85 S.Ct. 439, 13 L.Ed.2d 543 (1964). controlling in this state." Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331, 1334 (La.1978). While caselaw in the State of Louisiana is acknowledged as "invaluable as previous interpretation ..." [id. at 1335], it is nonetheless properly regarded as "secondary information." Id. at 1334.9
2. Prescription
The central issue in the instant appeal is whether plaintiff's
action is time barred. The answer to this question depends on
whether the applicable period of limitation—prescription in
Louisiana; statute of limitations in the common law—is liberative
or acquisitive. As shall be seen from our analysis of the
pertinent provisions of the Louisiana Civil Code and from "legal
treatises by legal scholars," the applicable type of prescription
is acquisitive. And, as shall also be seen below, our analysis of
Louisiana case law reveals that (1) this determination comports
with implications of the most recent pronouncement of the Supreme
Court of Louisiana, and (2) at the very least, the "jurisprudence"
on point is not "constante," which frees us to pursue our own
analysis of the Code, with the help of doctrinal writing.
C. Revendicatory Actions Are Imprescriptible
SongByrd contends that the district court erred when it
determined that SongByrd's action seeking recognition of its
ownership interest in the master recordings, return of those
9 Green v. Walker, 910 F.2d 291, 294 (5th Cir.1990) (footnotes omitted) (emphasis added). See also Principal Health Care of Louisiana, Inc. v. Lewer Agency, Inc., 38 F.3d 240, 245 n. 6 (5th Cir.1994) ("Louisiana, being the only civil law jurisdiction among the fifty states, is unique in that its approach to solving most legal questions begins first and foremost with a review of the Louisiana Civil Code. The Civil Code is thus the civilian's "Bible.' Jurists in common law jurisdictions, on the other hand, usually begin with a review of the case law on a particular issue."). recordings, and damages, has prescribed under Louisiana law. The
district court's memorandum order held that SongByrd's action had
prescribed under Louisiana Civil Code Articles 3499 and 3492
regardless of whether SongByrd's claims were based in contract,
quasi-contract, or tort. In so doing, the district court
implicitly characterized SongByrd's action as a "personal action"
arising from these areas of law. This characterization of
SongByrd's action constitutes the first and fundamental error
committed by the district court and led to its first erroneous
holding.
As explained by Professor A.N. Yiannopoulos in his treatise
on Louisiana property law, actions seeking recognition of ownership
or enforcement of the rights thereof, whether in movable or
immovable property, are not personal actions; they are "real
actions."10 Such real actions, otherwise known as "revendicatory
actions," are expressly authorized by the Louisiana Civil Code.11
As the official comments to the Code make clear, there are two
kinds of revendicatory action, depending on the object of the
ownership interest that the plaintiff seeks to have recognized:
(1) a "petitory action " for the recovery of immovable property
(real estate), and (2) an "innominate real action " for the
recovery of movable property (personalty).12 Further, any
10 A.N. Yiannopoulos, 2 Louisiana Civil Law Treatise § 241, 476 (1991). 11 See La.Civ.Code art. 526. 12 La.Civ.Code art. 526, cmt. b.; see also Yiannopoulos, supra, §§ 347 & 350, at 675-77 & 680-81 (on availability of real or revendicatory actions for the recovery of movable property under Louisiana law). "incidental demand for damages made in an action for the recovery
of an immovable [or a movable] does not affect the classification
of the main demand as a real action."13
It follows from this basic dichotomy that, as the Civil Code
specifically provides liberative prescription periods for all
manner of personal actions (including delictual, contractual and
quasi-contractual actions),14 "[l]iberative prescription does not
bar real actions seeking to protect the right of ownership."15 The
rationale for this distinction is that "[u]nder our Civil Code,
ownership can never be lost by the failure to exercise it—only by
the acquisition of ownership by another through possession
sufficient to acquire it through an acquisitive prescription."16
Thus, it is well established in Louisiana that the petitory action
(for the protection of immovables) is not barred by liberative
prescription.17 The same rule applies to the revendicatory action
brought to assert or protect the right of ownership in movable
property because it, too, is a real action, not a personal one. On
this point Professor Yiannopoulos' Louisiana Civil Law Treatise
could not be clearer:
An action that is grounded on a wrongful act, that is, an offense or quasi-offense, is subject to the prescription of
13 Yiannopoulos, supra, § 242, at 477. 14 See La.Civ.Code arts. 3492-3502. 15 Yiannopoulos, supra, § 249, at 487. 16 All-State Credit Plan Natchitoches, Inc., v. Ratliff, 279 So.2d 660, 666 (La.1972). 17 Yiannopoulos, supra, § 249, at 487; see also Northcott Exploration Co. v. W.R. Grace & Co., 430 So.2d 1077, 1080 (La.Ct.App. 3rd Cir.1983). one year and an action grounded on quasi-contract is subject to the prescription of ten years. The revendicatory action [for the recovery of movable property] is imprescriptible; however, such an object is without object when the defendant has acquired the ownership of a movable by the acquisitive prescription of three or ten years.18
Despite this obvious truism of Civilian doctrine,19 a number of
older Louisiana decisions overlooked or disregarded it and, just as
the district court did here, applied either one-year or ten-year
periods of liberative prescription on the erroneous assumption that
the revendicatory action is personal in nature, either delictual20
or quasi-contractual.21
Nevertheless, a 50-year old Louisiana Supreme Court case,
18 Yiannopoulos, supra, § 358, at 692-93 (emphasis added). 19 See id. § 358, at 693, n. 5-8 (cases cited therein). Neither the briefs filed by the parties nor our independent research reflect even relatively recent treatment of this issue by the Louisiana Supreme Court, and the older case law is, at best, mixed. Cases from the 1920's and 1930's occasionally characterize as delictual (tort), actions involving alleged illegally or fraudulently appropriated movable property, and opinions from the 1930's and early 1940's classified as quasi-contractual or personal, actions seeking recovery of wrongfully taken movables or proceeds of involuntary alienation of movables. 20 See, e.g., McGuire v. Monroe Scrap Material Co., 189 La. 573, 180 So. 413 (1938) (characterizing as delictual an action for value of movable property alleged to have been illegally and fraudulently appropriated); Carter-Allen Jewelry Co. v. Overstreet, 165 La. 887, 116 So. 222 (1928) (characterizing as delictual an action by jeweler alleging that salesman stole customer's ring or permitted someone else to steal it through his negligence). 21 See, e.g., Kramer v. Freeman, 198 La. 244, 3 So.2d 609 (1941) (plaintiff seeking recovery of wrongfully taken movables had cause of action in tort and quasi-contract, with pleadings indicating a waiver of tort action); Smith v. Phillips, 175 La. 198, 143 So. 47 (1932) (action by former homeowner to recover portion of proceeds of Sheriff's sale as homestead exemption characterized as personal action subject to ten-year liberative prescription under civil Code article 3544 (1870)). Faison v. Patout,22 appears to be the most recent pronouncement on
point, and it supports our reading of the Civil Code and Professor
Yiannopoulos' reading as well. In Faison, Mrs. Hypolite Patout
executed a manual donation of her jewelry to her two daughters.
Following the donor's death, one of her sons, Sebastian Patout,
suggested to his sisters that it was unsafe for them to keep this
jewelry in one sister's bedroom; so, with his sisters' permission,
Sebastian put the jewelry in his bank safety deposit box.
Sebastian died some twelve years later, whereupon his widow removed
the jewelry from the safety deposit box and refused to give it to
the sisters. In the sisters' suit to recover the jewelry, the
trial court held, and the Louisiana Supreme Court agreed, that the
sisters were the true owners. More significant to our
consideration today, the Patout defendants (children of Mrs.
Hypolite Patout's sons) had pled liberative prescription under
Louisiana Civil Code article 3544 (1870). They contended that
their aunts' action was personal and thus had prescribed because
more than ten years had elapsed between the time the property left
the aunts' possession and the time suit was filed. Rejecting this
contention, the Supreme Court wrote:
There might be some merit in a plea of prescription if Sebastian Patout had possessed the property for himself and the other heirs, and adversely to [his sisters], but the record convinces us that he was acting as depository for his two sisters, these plaintiffs, and that his possession of the property was for their benefit—for them, and not in his own name or right.
Counsel for defendants is in error in his contention that the ten-year [liberative] prescription under article 3544 commenced to run in March 1931 [when Sebastian took possession
22 212 La. 37, 31 So.2d 416 (1947). of the jewelry]. [Acquisitive] [p]rescription began to run when plaintiffs were first denied delivery of this jewelry in June 1942, after the death of their brother, Sebastian Patout, and this suit was filed in December 1942, about six months later.23
In thus rejecting the defendants' plea of liberative prescription,
the Louisiana Supreme Court clearly recognized that the concepts of
precarious possession and acquisitive prescription applied to this
action for the recovery of movable property, even though the court
did not use these terms of art. The facts in Faison are closely
analogous to the situation before us today, and the holding of the
Louisiana Supreme Court in Faison—the most recent pronouncement by
the highest court of the state—is instructive despite being
non-binding due to the inapplicability of the common law doctrine
of stare decisis.24
In sum, even though some decisions of the Louisiana Supreme
Court have treated actions for recovery of movables as personal
(delictual and occasionally as quasi-contractual), other decisions
of that court have found that such actions are properly considered
to assert claims of ownership and therefore are subject only to
acquisitive prescription. Despite its age, Patout is still the
most recent Louisiana Supreme Court pronouncement on point, and it
so held. But regardless whether the most recent pronouncement of
the Louisiana Supreme Court supports our analysis of the Civil Code
23 Id. at 418-19 (emphasis added). 24 See also Jeanfreau v. Jeanfreau, 182 La. 332, 162 So. 3 (1935) (owner of motorboat made simulated title transfer to his brother "for convenience sake only," never intending to relinquish actual ownership. In true owner's suit to recover the boat, defendant's plea of acquisitive prescription of three years under Louisiana Civil Code articles 496, 3506, and 3476 (1870) recognized implicitly by Louisiana Supreme Court as proper). and that of Professor Yiannopoulos, there is simply no
jurisprudence constante on the question. It follows, then, that
our Erie-bound decision to follow the plain wording and
indisputable structure of the Louisiana Civil Code and Professor
Yiannopoulos' analysis is either supported by or at least does no
violence to Louisiana's jurisprudence as a secondary source of law.
To the extent that our decision today may constitute an "Erie
guess," we take additional comfort in the observation that almost
60 years have passed since the Louisiana Supreme Court last applied
liberative prescription to actions claiming ownership or possession
of movable property—a span of years attributable at least in part,
we assume, to the broad reliance in recent decades on Professor
Yiannopoulos' doctrinal work on this subject.
As SongByrd's "Petition in Revindication" sought recognition
of its purported ownership interest in the Baton Rouge master
recordings and recovery of possession of those recordings, and only
incidentally sought damages resulting from Bearsville's
contravention of SongByrd's alleged ownership interest, we hold
that, as a fundamental matter of Louisiana property law, SongByrd's
action is not subject to liberative prescription.
D. Termination of Precarious Possession and Actual Notice
This foundational holding does not end our analysis in the
instant case, however. In addition to its failure to characterize
SongByrd's suit as a real action and its concomitant error in
applying the rules of liberative prescription, the district court
also missed the mark in its treatment of SongByrd's assertion that
Bearsville was and is only a precarious possessor. To situate the concept of precarious possession in its proper Civilian context, we
again return to basics. As Professor Yiannopoulos explains, a
defendant in possession (such as Bearsville) may defend a
revendicatory action for the recovery of movable property by (1)
asserting some right, be it personal or real, to possess the
movable, or (2) claiming that he is in fact the owner of the
movable by virtue of, e.g., a transfer from the owner, acquisitive
prescription, or some other mode of acquiring ownership.25 No such
defenses have been proffered by Bearsville; but if, on remand, it
should assert the defense of acquisitive prescription, the district
court will have to address SongByrd's contention—made both in its
original petition and in opposition to Bearsville's motion to
dismiss—that Bearsville is and always has been nothing more than a
precarious possessor.
Under the Civil Code, the concept of "precarious possession"
is defined within Title XXIII of Book III, "Of the Different Modes
of Acquiring the Ownership of Things," as "the exercise of
possession over a thing with the permission of or on behalf of the
owner or possessor."26 A precarious possessor is presumed to
possess for another,27 but precarious possession may be terminated
or converted to possession on one's own behalf in either of two
25 Id. § 354, at 687. 26 La.Civ.Code art. 3437. 27 La.Civ.Code art. 3438. Conversely, "[o]ne is presumed to intend to possess as owner unless he began to possess in the name of and for another." La.Civ.Code art. 3427 (emphasis added). This presumption set forth in article 3427 in favor of a person who exercises factual authority does not arise, however, when "there is proof that the possession was precarious at its inception." Yiannopoulos, supra, § 370, at 617. specific ways. First, a precarious possessor who is a co-owner (or
his universal successor) may terminate his precarious possession,
and thus begin to possess for himself alone, only when he
demonstrates his intent to possess for himself by "overt and
unambiguous acts sufficient to give notice to his co-owner."28
Second, a precarious possessor who is not a co-owner is held to a
higher standard and only "commences to possess for himself when he
gives actual notice of this intent to the person on whose behalf he
is possessing."29
In the instant case, then, should Bearsville assert that it
acquired ownership of the master recordings by acquisitive
prescription of either three or ten years, pursuant to Louisiana
Civil Code Articles 3489-91, it will have to overcome SongByrd's
assertion, so far supported by Quint Davis' affidavit, that Davis
and Dinkins delivered the master recordings to Bearsville intending
only for Bearsville to possess the tapes precariously. Bearsville
may, of course, assert that (1) it was never a precarious
possessor, or (2) even if it was a precarious possessor initially,
at some point it terminated its precarious possession and began to
28 La.Civ.Code art. 3439. 29 Id. (emphasis added). Another respected Louisiana commentator has observed (1) that the "actual notice" required to convert precarious possession to adverse possession constitutes a more stringent standard than was needed prior to the 1983 revision of Title XXIII of Book III of the Louisiana Civil Code dealing with occupancy, possession and acquisitive prescription, Symeon Symeonides, Property, 46 La.L.Rev. 655, 680 (1986), and (2) that the "overt and unambiguous acts sufficient to give notice" standard imposed on co-owners is "a less exacting burden of proof" than the "actual notice" standard imposed on other precarious possessors. Symeon Symeonides, One Hundred Footnotes to the New Law of Possession and Acquisitive Prescription, 44 La.L.Rev. 69, 86 (1983). possess for itself. Either way, Bearsville will have the burden of
proving facts sufficient to support such a defense.
It is the non-co-owner context in which we finally address
the district court's alternative—and, strictly speaking,
premature—holding that Bearsville's failure to respond to Dinkins'
letters requesting return of the tapes in 1975 and its later
licensing agreements with Rounder and Rhino, constituted "actual
notice" sufficient to convert Bearsville's precarious possession as
a matter of law. This ruling, we observe, is clearly inconsistent
with Louisiana law.
We have not been able to locate (and Bearsville has not cited
to us) a single Louisiana case that supports the novel proposition
that alone either (1) a minimal, apparently clandestine action—such
as entering into a contractual agreement with a third party to
enjoy the fruits of a movable without directly informing the owner
of the movable of that agreement—or (2) mere inaction in the face
of a request for a return of the movable to its owner, can somehow
constitute "actual notice" for purposes of terminating precarious
possession of the movable of a non-co-owner.30 To the contrary,
recent Louisiana cases concerning termination of precarious
possession reflect that the notice burden imposed on precarious
30 The two cases cited by Bearsville which held that mere silence or passivity is insufficient to bring the doctrine of contra non valentum into play are clearly inapposite as that doctrine concerns the interruption of liberative prescription of personal actions not acquisitive prescription in the context of real actions. See Cyr v. Louisiana Intrastate Gas Corp., 273 So.2d 694, 697-98 (La.Ct.App. 1st Cir.1973); Colley v. Canal Bank & Trust Co., 159 F.2d 153, 154 (5th Cir.1947). possessors in such instances is much more stringent.31 As one court
put it,
a possessor whose possession begins other than as an owner must do something to make generally known that he has changed his intent and he must prove specifically when he manifested to others his intent to possess as owner. Continued physical possession alone does not suffice to rebut the presumption that the possession remains precarious. The character and notoriety of the possession must be sufficient to inform the public and the record owners of the possession as owner.32
We therefore conclude that actual notice sufficient to convert or
terminate precarious possession cannot be based solely on either
minimal and apparently clandestine actions such as those described
above or on merely standing mute in the face of a direct inquiry or
request for return of the property.
This is not to say, of course, that the defendant may not
refer to these facts in a subsequent motion for summary judgment or
a full evidentiary hearing should Bearsville eventually assert that
at some point it began to possess the master recordings for itself
31 See e.g., Robin v. Finley, 597 So.2d 178, 180 (La.Ct.App. 3rd Cir.1992) ("actual notice" sufficient to begin acquisitive prescription not given until precarious possessors filed a possessory action); Satsuma Pentecostal Church v. Harris, 563 So.2d 1247, 1249 (La.Ct.App. 1st Cir.1990) (church that was a precarious possessor did not begin to possess for itself for purposes of instituting a possessory action under La.Code Civ. Proc. art. 3658(2) until church's representative voiced objection to owner's proposed sale of property and clearly notified owner that church claimed ownership); Morris v. Sonnier, 546 So.2d 1296, 1300 (La.Ct.App. 1st Cir.1989) (acts of corporeal possession are insufficient to constitute "actual notice" for precarious possessors who began possession as lessees); Feazel v. Howard, 511 So.2d 1306, 1308-09 (Ct.App. 2nd Cir.), writ denied, 514 So.2d 456 (La.1987) (precarious possessor did not give "actual notice" to owner that he intended to possess for himself as he admitted at trial that he never made an assertion of ownership of disputed tract). 32 Hammond v. Averett, 415 So.2d 226, 227 (La.Ct.App. 2nd Cir.1982) (citations omitted). and gave SongByrd's predecessors-in-interest actual notice of such
an intention. Doubtless these facts and others will have to be
considered by the trier of fact in resolving such an acquisitive
prescription defense in general and the actual notice issue in
particular. We simply hold today that the limited evidence
presented to the district court on Bearsville's motion to
dismiss-cum-summary judgment, on the ground of liberative
prescription, was insufficient to determine that Bearsville
satisfied the high burden of proof necessary to establish that it
gave SongByrd's predecessors-in-interest actual notice of its
intent thenceforth to possess for itself, converting its precarious
possession to adverse possession for the purpose of acquisitive
prescription.
III
CONCLUSION
For the reasons stated above, we reverse the district court's
grant of summary judgment in favor of Bearsville and remand the
case for further proceedings consistent with this opinion. On
remand, the district court is free to address the personal
jurisdiction question that it pretermitted in its summary judgment
ruling, an issue which is not before us on this appeal and on which
we express no opinion at this juncture.
REVERSED and REMANDED.