Opinion
2013 CA 1351 C/W 2013 CA 1352
12-29-2014
JEANETTE FELTON PINION v. JAMES EDWARD MURPHY, SR. AND NORMA JEAN MURPHY NORMA JEAN MURPHY, wife of/and JAMES EDWARD MURPHY v. SHELLY PERRILLOUX PINION, wife of/and DONALD ADAM PINION AND 2014 CW 0521
Vincent F. Wynne, Jr. Shannon K. Lowry Covington, Louisiana Counsel for Plaintiffs/Appellants Jeanette Felton Pinion, Shelly P. Pinion and Donald A. Pinion Russell C. Monroe Greensburg, Louisiana Counsel for Defendants/Appellees Norma J. Murphy and James E. Murphy
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
No. 2011-0001666
Honorable Bruce C. Bennett, Judge Presiding Vincent F. Wynne, Jr.
Shannon K. Lowry
Covington, Louisiana
Counsel for Plaintiffs/Appellants
Jeanette Felton Pinion, Shelly P.
Pinion and Donald A. Pinion
Russell C. Monroe
Greensburg, Louisiana
Counsel for Defendants/Appellees
Norma J. Murphy and James E. Murphy
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
McCLENDON, J.
In this property dispute, Jeanette Felton Pinion and Shelly Perrilloux Pinion, wife of/and Donald Pinion (the Pinions) appeal a trial court judgment, granting a motion for summary judgment in favor of James Edward Murphy, Sr. and Norma Jean Murphy (the Murphys) and declaring the Murphys owners of a certain piece of property by thirty years acquisitive prescription. For the reasons that follow, we reverse the summary judgment and remand the matter for further proceedings. We also deny the Pinions' application for a writ of supervisory review.
FACTUAL AND PROCEDURAL HISTORY
On January 21, 1977, the Murphys purchased a one-acre parcel of immovable property in Tangipahoa Parish from Thomas E. Beaudoin. According to the Murphys, when Mr. Murphy visited the property in January 1977, he was approached by Curtis Adam Pinion, Sr., Jeanette Pinion's husband and Donald Pinion's father. Mr. Murphy asked Mr. Pinion to show him where the stakes to the property were located so he would know where his eastern boundary was located. Mr. Murphy attested that Mr. Pinion indicated the location of the eastern boundary line of the Murphy property from Harvey Lavigne Road to a stake at the back of the property, stating that if he ran that line, "you will have no problems."
Jeanette Pinion disputes this version of events, asserting that she did not meet with the Murphys in January 1977 and did not discuss property lines with them.
The actual line adopted by the Murphys as their eastern border ran from the northeast corner of their property in a southeasterly direction rather than in a north to south direction as provided in their title description. The diagonal line created a triangular shaped piece of property that the Murphys apparently thought they owned, but actually exceeded what they owned by title. This .672-acre piece of property is the disputed property at issue herein.
In fact, the disputed property was part of a 12.22-acre tract of land owned by Claude Joseph Hebert. According to the Pinions, they maintained the 12.22 acres for Mr. Hebert from November 1978 to September 8, 1999, when Mr. Hebert sold the 12.22 acres to Jeanette Pinion.
Mr. Curtis Pinion, Sr. died sometime before the sale.
In February 1977, the Murphys placed a trailer on the northern part of their one-acre parcel and, thereafter, began construction on a house. When completed, the Murphys moved into their new home, two-thirds of which was built over the eastern boundary set forth in their title and extended onto the Pinion property. The parties dispute the completion date of the house.
By an act dated July 17, 2002, Ms. Pinion donated to her son, Donald, and his wife, Shelly, a portion of the 12.22 acres, which included the northern portion of the triangular-shaped disputed property.
On October 9, 2009, Jeanette Pinion filed a Petition for Recognition as Owner of Immovable Property, for Injunctive Relief and for Damages against the Murphys, seeking to be recognized as the owner of the disputed property and seeking general and specific damages. In response, the Murphys filed a Peremptory Exception of Prescription, alleging that they had acquired the disputed property through acquisitive prescription of thirty years. The hearing on the injunctive relief and exception was continued several times and ultimately continued without date. On March 26, 2011, Donald Pinion put a fence on part of the disputed property, and this resulted in the Murphys filing a Petition for Declaratory Judgment against Donald and Shelly Pinion on May 23, 2011, and later, by an amended petition, Jeanette Pinion. In their petition, the Murphys sought to be declared the owners to the disputed property, having occupied the property as owners peaceably and uninterrupted for over thirty years. They also sought damages. On May 22, 2012, the trial court signed an order consolidating the two matters for trial after Jeanette Pinion filed an Unopposed Motion to Consolidate.
On November 7, 2012, the Murphys filed a Motion for Summary Judgment against the Pinions, asserting that they were entitled to summary judgment declaring that they are the owners of the .672-acre tract through their continuous possession of the property in excess of thirty years. The Pinions filed an opposition to the motion, and the matter was heard on February 19, 2013. Following the hearing, the trial court took the matter under advisement. On April 18, 2013, the trial court issued Partial Written Reasons and an Interim Order, requesting further briefing on the issue of the eastern and southern boundaries of the property claimed by adverse possession. A settlement conference was held with the trial court on May 23, 2013, but it failed to result in a resolution of the issues.
The trial court, in its reasons, stated that it was "having great difficulty in ascertaining the eastern and southern boundaries of the possession."
Thereafter, on May 24, 2013, the trial court granted the motion for summary judgment, declaring the Murphys to be the owners by adverse possession of thirty years of all of the disputed property. The Pinions suspensively appealed, assigning the following as error:
1. The trial court's grant of summary judgment, declaring the Murphys to be the owners of the disputed .672 acres by adverse possession of thirty years, was in error.
2. The trial court manifestly erred in finding the Murphys presented evidence, sufficient to prove continuous, uninterrupted, public, unequivocal, actual corporeal possession, inch by inch, of the Pinion property for thirty years, required for acquisitive prescription.
WRIT APPLICATION
Initially, we address the denial of the motion filed by the Pinions to strike from the record the signed affidavit of Norma Murphy, dated January 11, 2013, and filed in conjunction with the motion for summary judgment. The Pinions seek supervisory review of the denial of the motion to strike, asserting that the affidavit was not introduced and admitted into evidence at the trial court, is not contained in the trial court record, and does not form a part of the record on appeal.
The application for a supervisory writ of review was referred to the panel to which the appeal was assigned. See Pinion v. Murphy, c/w Murphy v. Pinion, 2014 CW 0521 (La.App. 1 Cir. 5/7/14).
The record shows that the motion for summary judgment includes an affidavit executed by Ms. Murphy on April 20, 2012. On January 10, 2013, the Murphys filed a reply brief in response to the Pinions' opposition to the summary judgment motion that included a supplemental affidavit of Ms. Murphy. The affidavit was unsigned, apparently because Ms. Murphy was in the hospital and unavailable on January 10, 2013, the date the reply brief was due. Ms. Murphy signed the affidavit on January 11, 2013.
Thereafter, the Pinions filed a motion to strike the affidavit, as it was unsigned. The Murphys' motion for summary judgment and the Pinions' motion to strike came up for hearing on January 14, 2013. The trial court continued the motion for summary judgment and denied the motion to strike. The motion for summary judgment was heard on February 19, 2013, and granted.
On November 6, 2013, counsel for the Murphys delivered a letter to the trial court seeking supplementation of the record to include the signed signature page of the affidavit of Ms. Murphy. On November 12, 2013, the trial court issued a notice of supplementation indicating that the record had been supplemented with the signed affidavit.
The Pinions filed with this court a motion to strike. Because the record did not unambiguously establish whether the signed affidavit was admitted in the trial court, this panel issued an Interim Order, ordering the remand of the matter for the limited purpose of determining whether and when the signed affidavit of Ms. Murphy was filed in the trial court record. In response to the order, the trial court conducted an evidentiary hearing on March 3, 2014. In its Judgment and Findings on Remand, the trial court concluded:
The original affidavit and the entirety of Exhibit "2" to the Murphy Reply brief, including attachments, being the signed and notarized affidavit of Norma Jean Murphy executed January 11,
2013, were admitted by counsel by the plaintiff without objection at the hearing of February 19th, 2013. This exhibit was considered by the court in its ruling.
Because the signed and notarized affidavit of Ms. Murphy, executed on January 11, 2013, was admitted by counsel for the Murphys without objection at the summary judgment hearing on February 19, 2013, the signed affidavit is a part of the record before this court, and we deny the writ application.
APPLICABLE LAW
Summary Judgment
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Granda v. State Farm Mutual Insurance Company, 04-2012 (La.App. 1 Cir. 2/10/06), 935 So.2d 698, 701. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B(2). Summary judgment is favored and "is designed to secure the just, speedy, and inexpensive determination of every action." LSA-C.C.P. art. 966A(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 769 (per curiam).
When the mover will bear the burden of proof at trial, that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Hines, 876 So.2d at 766. See also LSA-C.C.P. art. 966C(2). Such an affirmative showing will then shift the burden of production to the party opposing the motion, requiring the opposing party either to produce evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery. Hines, 876 So.2d at 766-67. If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967B; Mitchell v. Southern Scrap Recycling, LLC, 11-2201 (La.App. 1 Cir. 6/8/12), 93 So.3d 754, 757, writ denied, 12-1502 (La. 10/12/12), 99 So.3d 47.
In ruling on a motion for summary judgment, the trial court'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. Hines, 876 So.2d at 765. Additionally, courts generally cannot decide credibility issues when entertaining a motion for summary judgment. Hines, 876 So.2d at 769.
A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. 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. Hines, 876 So.2d at 765-66.
An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La. 3/10/06), 923 So.2d 627, 632.
Acquisitive prescription
Ownership of immovable property may be acquired by the prescription of thirty years without the need of just title or possession in good faith. LSA-C.C. art. 3486. Stated another way, ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. George M. Murrell Planting & Mfg. Co. v. Dennis, 06-1341 (La.App. 1 Cir. 9/21/07), 970 So.2d 1075, 1080-81.
As provided in the comments to art. 3486, the attributes or requirements of possession for acquisitive prescription of thirty years are the same as those set forth in La. C.C. art. 3476, which states that:
The possessor must have corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription.
The possession must be continuous, uninterrupted, peaceable, public, and unequivocal.
Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. LSA-C.C. art. 3425. The revision comments to art. 3425 further explain that "[c]orporeal possession is that by which one possesses a thing corporeally, for example, by residing in a house, cultivating land, or using a movable." Comment (b), Revision Comments-1982; Ryan v. Lee, 38,352 (La.App. 2 Cir. 4/14/04), 870 So.2d 1137, 1141, writ denied, 04-1531 (La. 10/1/04), 883 So.2d 991.
For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed, which "[a]ctual possession is determined according to the nature of the property." LSA-C.C. art. 3487 and comment (c), Revision Comments-1982; see also Hill v. Richey, 221 La. 402, 59 So. 434 (1952). Thus, what constitutes adverse possession depends on the type or nature of the property and must be determined based on the facts of each case. See Liner v. La. Land & Exploration Co., 319 So.2d 766 (La. 1975); Ryan, 870 So.2d at 1141-42.
Actual possession must be either inch-by-inch possession (pedis possession) or possession within enclosures. An enclosure is any natural or artificial boundary. LSA-CC. art. 3426, comment (d), Revision Comments-1982, citing A.N. Yiannopoulos, Property §§ 212-214, in 2 Louisiana Civil Law Treatise (2d ed.1980). "Enclosed" does not necessarily mean "fenced in." Chevron U.S.A. Inc. v. Landry, 558 So.2d 242, 244 (La. 1990); City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975, 981 (La. 1982). In discussing the civil code articles regarding actual possession, the supreme court in Hill, 59 So.2d at 440, explained:
There is nothing said or implied in these articles that in order to possess, the land must be enclosed for the entire time, or for that matter, that it must be enclosed at all.' It is well recognized, of course, that for the prescription of 30 years to be successfully pleaded the person pleading it must have the actual, physical, and corporeal possession of the property which he seeks to acquire by this period of prescription; that, when once this prescription has been commenced and establish[ed] and has not been interrupted, it may be preserved by external and public signs announcing the possessor's intention to preserve the possession of the thing,. . . .
We recognize also that under the jurisprudence a person claiming by possession alone and without title is required to show an adverse possession by enclosures, and that his claim will not extend beyond such enclosures. But, when this jurisprudence is considered with the articles of the Code announcing the law applicable to such cases, we do not think that a strict interpretation should be given to the word 'enclosures.'
. . . .
What the court means by 'enclosures', as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof. To say that the term means 'enclosed only by a fence or wall' would be giving it a very strict and narrow construction, not justified or supported by the articles of the Code, as we have hereinabove pointed out, and would lead to absurd consequences in some cases.
Thus, the party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. George M. Murrell Planting & Mfg. Co., 970 So.2d at 1080-81; Secret Cove, L.L.C. v. Thomas, 02-2498 (La.App. 1 Cir. 11/7/03), 862 So.2d 1010, 1015, writ denied, 04-0447 (La. 4/2/04), 869 So.2d 889.
Furthermore, one is presumed to intend to possess as owner unless he began to possess in the name of and for another. LSA-C.C. art. 3427. The intent to possess as owner may be inferred from all of the surrounding facts and circumstances. George M. Murrell Planting & Mfg. Co., 970 So.2d at 1081; Secret Cove, 862 So.2d at 1015.
Therefore, in this matter, the inquiry becomes whether the Murphys exercised such acts of possession over the disputed property to show their intent to possess as owner for the requisite period of time.
DISCUSSION
In support of their motion for summary judgment, Mr. Murphy and Ms. Murphy each submitted an affidavit, with several attachments that included a map prepared at the direction of Mr. Murphy by Daniel S. McCabe, a licensed land surveyor, dated August 20, 2010. The map showed the one acre the Murphys purchased (a long rectangular piece of property running north to south) and the disputed property (the additional triangular-shaped .672 acres) to the east of their property as defined in their title. The Murphys attested that they "occupied and possessed all of the land identified in the McCabe August 20, 2010 map beginning January 21, 1977." They used the map as a reference in their affidavits to show their corporeal possession and gave a non-exclusive list of activities, including establishing and using a driveway along the east side of the property since 1979; clearing the property; mowing and maintaining the property; digging a drainage ditch along the east side of the driveway; building a home in which they still live, the construction of which began on February 3, 1979 and was completed by June 24, 1979; building a chicken coop about 175 feet from the back property line in 1981; building a stall to shelter a calf in 1981; raising animals on the back property for several different spans of time from 1981 forward; and erecting a fence in 1995 along the eastern boundary line. The Murphys also stated that they never asked for permission to use and occupy the disputed property, because they believed that they owned it, and no one ever told them anything different until they received a May 29, 2008 letter from Jeanette Pinion seeking "amicable resolution" of the dispute over the disputed property.
In his affidavit, Mr. McCabe stated that he examined and identified the property that the Murphys "claim to have occupied and possessed over and above the property described in their title, including the visible boundaries and markers located on the eastern boundary of that which they claim to have possessed, which visible markers include but are not limited to a fence, driveway, and drainage ditch which run along and mark said eastern border." Mr. McCabe stated that he identified and drew a legal description for the .672 acres and that he also subdivided that description, setting forth the description of the .1294 acre that the Murphys claimed that they possessed and occupied from the land titled to Shelly and Donald Pinion and the .5475 acre that the Murphys claimed that they possessed and occupied from the land titled to Jeannette Pinion.
We note that the drainage ditch as shown on the map does not extend all the way to the alleged southern border of the property.
We also note that the sum of the subdivided acreage amounts is .6769 acres and not .672 acres. Mr. McCabe attributes the difference to his reliance on a survey prepared by William Bodin, Jr. for the Pinions.
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The Murphys assert that as shown by their affidavits, together with the map showing their activities for more than thirty years, they have exercised extensive, repeated, obvious, notorious, continuous, public, unequivocal, peaceful, and open occupation and physical possession of the entire .672 acres in dispute from January 21, 1977 (the date they purchased their one-acre tract) through October 9, 2009 (the date Jeanette Pinion filed suit) and March, 26, 2011 (the date Donald Pinion erected a fence dispossessing the Murphys of the .1294 acres). The Murphys assert that the specific acts of corporeal possession set forth in their affidavits closely match the geographical area described in the August 20, 2010 McCabe map and that their activities over the course of thirty-three years line up right along the proposed eastern and southern boundaries set forth in the McCabe map. Therefore, the Murphys submit that there exists no genuine issue of material fact and that they are entitled to summary judgment declaring that they are the owners of the .672 acres.
In response, the Pinions filed a memorandum in opposition to the motion for summary judgment that included the affidavit of Jeanette Pinion, the affidavit of Donald Pinion, and the affidavit of Shelly Pinion, all with attachments. The Pinions contended that there were numerous genuine issues of material fact that precluded the granting of summary judgment. Specifically, the Pinions disputed several of the reported acts of possession by the Murphys. The Pinions maintain that many of the acts of possession beyond the boundaries of the Murphys' titled parcel began only after the Murphys built their home and that when the Murphys built their home remains at issue.
The Pinions attested that although the Murphys assert that they began building their home on February 3, 1979, the assessment data listing for the Murphys' property from the Tangipahoa Parish Assessor's website indicates that the home was built in 1980, and that a permanent homestead exemption was not applied for until July 1981. Furthermore, the Pinions aver that there have been no clear enclosures or natural boundaries marking to the public the Murphys' continuous possession of the disputed property for thirty years. They contend that the reported acts of possession were sporadic and random at best. The Pinions also assert that on July 3, 2010, Donald Pinion bush-hogged the portion of the disputed property in front of the Murphys' home, showing that the Murphys had not maintained the property as it was overgrown with shrubs and brush. The Pinions adamantly maintain that the Murphys failed to demonstrate adverse possession of the entire .672 acres or any portion thereof.
The Murphys filed a reply brief to the opposition to the motion for summary judgment that included a supplemental affidavit executed by each of them. In reply, the Murphys asserted that the Pinions' opposition fails to create any genuine issue of material fact as to the date of the construction of the house. The Murphys allege that whether the driveway was established along the eastern border of the disputed property in January 1979 as alleged by the Murphys or at the end of construction of the Murphy home in June 1979, either date is more than thirty years prior to the October 9, 2009 filing of suit by Jeanette Pinion. Therefore, the Murphys attest that the driveway served as a visible definitive border of the .672 acres in question from the highway to the house from June 1979, and which ran along the same line as other visible markers south of the driveway, including a privacy fence, and marked the eastern border. The Murphys assert that because the Pinions' statements do not create genuine issues of material fact, the Pinions have produced no evidence to controvert the Murphys' allegations of the extent of their possession.
In response, the Pinions filed a supplemental memorandum in opposition to the summary judgment motion, with the affidavits of Curtis Pinion and Donald Pinion, asserting that Donald and Shelly Pinion have demonstrated ownership, possession, and maintenance of the entirety of the property donated to them by Jeanette Pinion. The Pinions continue to maintain that the Murphys cannot and did not demonstrate adverse possession of the entire .672 acres or any portion thereof.
In reviewing the grant of summary judgment de novo, we must draw all reasonable references in a light most favorable to the Pinions. See Hines, 876 So.2d at 765. The Pinions presented evidence contrary to that submitted by the Murphys as to when the Murphys built their home. They also submitted evidence questioning many of the reported acts of possession by the Murphys on that portion of the disputed property to the south of the Murphys' house. Given that the Pinions presented evidence contesting not only when the Murphys' possession began, but the extent of possession, we find that credibility issues exist as to material facts precluding summary judgment. Accordingly, we reverse the trial court judgment granting summary judgment in favor of the Murphys and remand the matter to the trial court for further proceedings.
CONCLUSION
For the foregoing reasons, the Pinions' application for a writ of supervisory writ of review is denied. Additionally, the May 24, 2013 judgment of the trial court, granting the motion for summary judgment and declaring James Edward Murphy, Sr. and Norma Jean Murphy to be the owners of the entire .672 acres, as described in the judgment, is reversed. The matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed against James Edward Murphy, Sr. and Norma Jean Murphy.
APPLICATION FOR SUPERVISORY WRIT OF REVIEW DENIED; JUDGMENT REVERSED AND MATTER REMANDED.