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Creek Management, L.L.C. v. Unopened Succession and Unknown Heirs or Legatees of Williams

Court of Appeals of Louisiana, Second Circuit

May 17, 2017

CREEK MANAGEMENT, L.L.C. Plaintiff-Appellee

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Lower Court Case No. 585355 Honorable Ramon Lafitte, Judge

          DONALD WILLIAM WEIR, JR. Counsel for Appellants.

          BETHARD & BETHARD, L.L.P. By: Henry W. Bethard, V Counsel for Appellee

          Before WILLIAMS, DREW, and COX, JJ.

          COX, JUDGE.

         The unopened succession and unknown heirs or legatees of Wade Williams ("Defendants") appeal from a summary judgment for the plaintiff, Creek Management, L.L.C. ("Creek"), which resulted in Creek being granted possession of all interests in the property in dispute. The trial court, addressing Creek's possessory action, found that Creek had terminated any precarious possession by filing an affidavit of possession, and from that day had possessed the property for itself, as owner, against all other co-owners. Because questions of material fact remain regarding the actions of Creek in establishing possession, we respectfully reverse the trial court's ruling and remand for further proceedings.


         This suit began on June 11, 2015, when Creek filed a petition for possessory action which stated that it was in possession, as owner, of an approximately 40-acre tract of land in the southern part of Caddo Parish. The petition alleged that Creek acquired interests in the property by deeds filed in the records of Caddo Parish and that the property appeared to have been abandoned prior to the sales of the interests. It further stated that the sellers of the deeds did not know any other owners or heirs. The petition claimed that an affidavit of possession was filed by Creek on June 9, 2014, which named anyone with a possible ownership interest, and declared that Creek intended the affidavit to serve as notice of hostile possession against them. The affidavit listed various actions that Creek took which were intended to demonstrate possession of the property. On the basis of this alleged uninterrupted hostile possession and the filing of the affidavit, Creek claimed that there had been a disturbance in possession in law under La. C.C.P. art. 3659. As a result, Creek asked that the court appoint an attorney to represent the absentee defendants and that Creek be recognized as possessor of the property under La. C.C.P. art. 3658.

         The affidavit of possession referenced in the petition was filed on June 9, 2014, and states that Creek purchased an interest in the property in dispute on June 6, 2014. It elaborates that "it has been, and is the intention of Creek Management, LLC to own, and to possess as owner, the entirety of the subject property beginning on June 6, 2014, which possession is hostile against any other persons or entities who claim to have a co-ownership interest in the subject tract." The affidavit goes on to state various acts of possession of the property including: cleaning the property of garbage piles, cutting trails, posting "no trespass" signs, repairing fences, placing a gate and lock to restrict access, destroying old deer hunting equipment, and attempting to restore electricity to and repair an old structure on the property. It also lists 11 unopened successions and/or persons whom Creek intended to possess against and states that it is intended to serve as notice of such with the goal of acquiring title to 100% interest in the property by adverse possession.

         After the trial court appointed an attorney to represent Defendants, an answer and set of requests for admissions of fact were filed. The answer asserted that all Defendants were absentees from Louisiana and that merely filing the affidavit in the public records was not sufficient notice.

         In response to the request for admissions, Creek admitted that it had checked the Caddo Parish Tax Assessor's records regarding the property, and they were aware of the mailing address for Beatrice Wesson ("Wesson"), a representative of a co-owner of the property. In addition, Creek admitted that it never sent any correspondence to Beatrice Wesson via certified mail, and had placed notice in a Caddo Parish publication to notify the public of the hostile possession of the property.

         On February 10, 2016, after Defendants produced substantial records of their ownership and payment of taxes for the property, they filed a motion for summary judgment. The motion argued that Creek's failure to publish notice of its hostile possession in a Caddo Parish newspaper and its failure to send a letter by certified mail to Wesson made any actions it took insufficient to take sole possession of the property. Attached was an affidavit from Leatrice Eagleson[1] ("First Eagleson Affidavit") stating that she did not receive notice of the adverse possession until after the suit was filed and that she or Wesson had responded to inquiries about oil, gas, and timber on the property since 1956. Included in the Defendants' production were inquiries about mineral interests addressed to Wesson and dated June 10, 2014, and March 18, 2015, dates within the time that Creek claimed exclusive possession. The affidavit also states that the property was acquired by Eagleson's ancestors in 1926 and that the Williams family (Eagleson's mother's family) had paid property taxes on the property since 1956. [2]Another affidavit from the Director of Land Ownership at the Caddo Parish Tax Assessor's Office ("Tax Assessor's Affidavit") was also attached and stated that since 1956, the property was assessed to "Williams, Wade, et al c/o Beatrice Wesson, 5495 WHITFIELD DR. TROY, MI 48098-5182."

         Creek filed a cross-motion for summary judgment on March 24, 2016, asserting that there were no issues of material fact and the requirements of La. C.C.P. art. 3658 had been met as a matter of law. In its memorandum, Creek argued, "With no information available for plaintiff to find the identities or whereabouts of the defendants, plaintiff went above and beyond what the law requires and filed an affidavit of possession which could not have stated the intent of the plaintiff any more clearly."[3] Attached to its motion was an affidavit from Ashley Powers ("First Powers Affidavit"), a member and manager of Creek, stating that a letter was sent to Wesson[4] on June 9, 2014, to notify her of Creek's possession of the property. That letter, attached to the motion, contained a statement that Creek was possessing against Wesson's interest and offered to buy her approximately one-tenth interest for $2, 000.00. The letter was signed by Henry W. Bethard, V, as a manager of Creek.[5] Powers also averred that Signora Darnell, a neighboring property owner, called Powers between June 9 and September 27, 2014, and stated that she had been in contact with the landowner and that the landowner didn't want any more "no-trespassing" signs to be put up. When asked for the landowner's contact information, Darnell allegedly refused to give out the name or information, but agreed to give Powers' information to the landowner. Powers also stated that further contact with Darnell occurred on September 27, 2014, when Darnell saw Powers on the property and informed him that "the owner of the property" had told her the "no-trespassing" signs needed to be taken down. Powers concluded that Darnell had been in contact with Beatrice Wesson, but, at the time of the affidavit, Powers stated that it was obvious that Darnell had actually been in contact with Eagleson.

         In response to that motion, Defendants filed a supplemental memorandum which re-asserted their original arguments but included a supplemental affidavit from Eagleson ("Second Eagleson Affidavit") which states that she received a call in late spring or early summer from Darnell indicating that a chain had been placed on her family's property with a "No Trespassing" sign, but Darnell did not know who put them up.[6] The affidavit also states that Eagleson visited the property in August of 2015 and found a chain with a "No Trespassing" sign attached, but that there was no identification of who put the sign or chain there. Signora Darnell also executed an attached affidavit ("Darnell Affidavit") stating that when she approached people who were working on the property, they simply replied that "they owned the property, " and there was nothing else to identify them. She also averred that at no time did they ask her how to reach Wesson or anyone else by phone.

         Responding to Defendants' supplemental memorandum, Creek filed another memorandum in opposition to the motion for summary judgment arguing that it did provide actual notice. It stated that actual notice was achieved by the letter and that whether it was sent via certified mail was irrelevant. It further asserted that even though sending notice by certified mail was not a requirement, an attached certified return receipt showed that the Eaglesons do receive mail at the address where the plaintiff's letter was mailed.[7] Attached to this memorandum is a second affidavit by Powers ("Second Powers Affidavit") executed on July 1, 2016, which is substantially the same as the first, except that it adds a statement that the Eagelsons receive mail at Wesson's address as evidenced by an attached certified mail return receipt.

         On July 14, 2016, a third affidavit from Eagleson ("Third Eagleson Affidavit") was filed in support of Defendants' motion for summary judgment. It states that when she visited the property on August 2, 2014, she did not see a telephone number on the "no-trespassing" sign posted on the entrance to her ...

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