JAMES C. PERKINS, ET AL
ANDREW J. FOWLER, ET AL ANDREW J. FOWLER, ET AL
JAMES C. PERKINS, ET AL
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES,
NOS. 250, 334, 250, 346 HONORABLE GEORGE C. METOYER, JR.,
Richard A. Rozanski Wheelis & Rozanski COUNSEL FOR
PLAINTIFF/APPELLANT: James C. Perkins
K. Thompson Thompson Law Firm, LLC COUNSEL FOR
DEFENDANT/APPELLEE: Andrew J. Fowler
composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R.
Cooks and Shannon J. Gremillion, Judges.
R. COOKS JUDGE.
appeal arose from the trial court's judgment in favor of
defendants/appellees, Andrew Fowler and the Unopened
Succession of Blanch Deramus Fowler, granting the motion for
summary judgment recognizing their right to the possession of
a thirty-two foot tract of land. For the following reasons,
we reverse the judgment of the trial court and remand for
AND PROCEDURAL HISTORY
12, 1963, James C. Perkins and Emily L. Perkins, purchased a
10.2 acre tract of land located in Lecompte, Louisiana. The
Perkins established this property as their homestead,
clearing the land and building a home. They maintained a
constant presence on the land from that date to the present.
2014, Andrew Fowler, who lived on land next to the Perkins,
began removing fencing and trees on property the Perkins
alleged belonged to them. The Perkins eventually contacted
the Rapides Parish Sheriff's Department in connection
with this activity. In connection with this, on June 11,
2014, James C. Perkins, as Trustee of the Living Trust of
James and Emily Perkins, filed a "Petition for
Possession, Temporary Restraining Order, Preliminary and
Permanent Injunction and Damages." At issue was a
thirty-two foot strip of land that bordered the Perkins
property on the south side. In the possessory action, it was
claimed the Perkins had been in "actual physical,
corporeal possession, with the intent as owner" of the
property in question "for a period in excess of one (1)
year prior to any disturbance in fact by Defendant." A
Temporary Restraining Order and Rule to Show Cause was issued
by the district court on June 11, 2014.
their suit, the Perkins claimed that, for seventy years,
there existed a barbed wire fence encompassing the
Perkins' tract of land. They further asserted this fence
was maintained and utilized by them, but that over time trees
began to grow along the property line, and the fence began to
decay. They assert the tree line essentially became the fence
line of the property, and they would connect the barbed wire
fence to the trees to keep it upright. They maintained at all
times they have lived on the property and possessed up to the
tree line as owners.
response, Fowler answered the Perkins suit and also, on
October 14, 2014, Fowler filed a separate "Petition for
Possession, Preliminary and Permanent Injunction and
Damages." In that suit, Fowler claimed a disturbance in
corporeal possession as the owner of five contiguous tracts
of land located in Rapides Parish and including the
thirty-two foot strip of land in question.
suits were consolidated by the district court as set forth in
the petition. Thereafter, the Perkins filed an amended
petition asserting they were "owners" of the
property and further prayed for relief "declaring
petitioner to be the exclusive owner of all of the land
enclosed by the boundaries set forth on the Phillips survey
and in accordance with petitioners recorded title."
December 5, 2016, Fowler filed a Motion for Summary Judgment,
contending that there was no disputed material facts that
Perkins converted his possessory action to a petitory action
and therefore, pursuant to La.Code Civ.P. art. 3567,
judicially confessed Fowler's possession of the disputed
property. Perkins filed an opposition to Fowler's motion
for summary judgment, maintaining the original possessory
action was converted into a declaratory action that did not
confess possession in the adverse party.
parties each introduced surveys that were conflicting as to
who owned the thirty-two foot strip of land, as well as
memoranda in support of their respective positions on whether
summary judgment was appropriate. After a hearing on the
motion, the trial court rendered judgment in favor of ...