Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ebarb v. The Unopened Succession of Sepulvado

Court of Appeals of Louisiana, Third Circuit

March 15, 2018

WILLIAM TERRY EBARB AND DEW ANNA N. EBARB
v.
THE UNOPENED SUCCESSION OF ALFAIR JONES SEPULVADO, ET AL. NORMAN MICHAEL SEPULVADO
v.
WILLIAM TERRY EBARB, ET AL.

         APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NOS. 67, 016 and 67, 138 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

          Charles W. Seaman Seaman Law Firm COUNSEL FOR PLAINTIFF/APPELLANT: Norman Michael Sepulvado

          Ronald D. Brandon Brandon Law Firm COUNSEL FOR DEFENDANTS/APPELLEES: William Terry Ebarb Dewanna N. Ebarb

          Rebecca L. Riall Riall Law Firm CURATOR FOR DEFENDANTS/APPELLEES: Unopened Succession of Alfair Jones Sepulvado Unopened Succession of Anthonita Sepulvado Wilkerson Unopened Succession of Williard W. Wilkerson

          Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

          VAN H. KYZAR JUDGE.

         In these consolidated appeals, Norman Michael Sepulvado, Sr. (Michael) appeals the trial court judgment finding that he failed to prove ownership of nineteen acres of property by thirty-years acquisitive prescription. For the following reasons, we affirm the trial court's judgment.

         Discussion of the Record

         This litigation began when William Terry Ebarb and his wife, Dewanna N. Ebarb ("the Ebarbs"), filed suit requesting that a nineteen-acre tract of land located in Sabine Parish, of which they owned an undivided interest, be partitioned by licitation. The suit named as defendants, the Unopened Succession of Alfair Jones Sepulvado, aka Alfor Jones Sepulvado, the Unopened Succession of Anthonita Sepulvado Wilkerson, and the Unopened Succession of Willard W. Wilkerson. After being appointed curator and succession representative of all three defendant unopened successions, the appointed attorney answered with a general denial as to the Successions of Willard Wilkerson and Alfair Sepulvado, but answered indicating that Michael, who had acquired the interests of the heirs of Anthonita Sepulvado, was the proper defendant to answer therefor. The Ebarbs then filed an amending petition naming Michael as a defendant to the partition suit in lieu of the Unopened Succession of Anthonita Sepulvado Wilkerson. Michael answered the suit and filed a reconventional demand, claiming ownership of the entire property by virtue of thirty-years acquisitive prescription. He also filed a separate petition for declaratory judgment making the same claim of ownership of the property by acquisitive prescription, in answer to which the Ebarbs filed a general denial. The two actions were consolidated for trial purposes by the trial court.

         The tract of land at issue is described as follows:

A CERTAIN TRACT OF LAND, twenty-two (22) acres of land in the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of Section 32, Township 8 North, Range 13 West Sabine Parish, Louisiana, more particularly described as beginning at a point 35 yards West of the Northeast corner of above described forty, then run West 240 yards, then South 440 yards to South line of forty; then run East 240 yards to line of land belonging to Paul Sepulvado; then run North 440 yards to place of beginning, containing 22 acres, more or less, with the improvements thereon, situated in Sabine Parish, Louisiana.
LESS AND EXCEPT
Beginning 996.2 feet South of the Northwest corner of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of Section 32, Township 8 North, Range 13 West, run thence East 520.5 feet to a stake set for corner, thence run North to the North right-of-way line of existing graded road (a distance of approximately 128 feet), thence East a distance of 375 feet, thence North 348.48 feet, thence West 375 feet, thence South along the East line of Johnny Ebarb property a distance of 348.48 feet to the place of beginning, together with all buildings and improvements situated on said tract of land, situated in Sabine Parish, Louisiana.
The total acreage being 19 acres, more or less.

         Following a January 13, 2017 trial on the merits, the trial court held that Michael failed to prove that he had acquired the property by thirty-years acquisitive prescription. It then rendered judgment in favor of the Ebarbs, ordering that the property be partitioned by licitation. It is from the trial court's March 21, 2017 final judgment that Michael appeals, asserting the following assignments of error in the form of issues presented for review:

(1) What was the effect of the failure of the Ebarb's [sic] in their Answer filed in Docket Number 67, 138 to not set forth an affirmative defense as mandated by LSA-CCP Article 1005.
(2) Did NORMAN MICHAEL SEPUVLADO acquire, by acquisitive prescription the ownership of the nineteen acres in controversy.
(3) Is the property susceptible of being partitioned in kind.

         Based on the fact that Michael agrees that the property is not susceptible of being partitioned in kind, we need not address his third assignment of error.

         OPINION

         The manifest error standard of review was recently reviewed by the supreme court in Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr- McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115- 16, wherein the court stated:

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-cl early wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass'«, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La.4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court's factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).
This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court's findings. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La.2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge's or jury's factfinding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

         Affirmative ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.