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Madden v. Chumley

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

JAMES D. MADDEN AND LYDA ROBERTS MADDEN Plaintiffs-Appellees
v.
MARY ELIZABETH CHUMLEY, IN HER CAPACITY AS EXECUTRIX OF THE SUCCESSION OF JOHNYE MAE MADDEN Defendant-Appellant

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Webster, Louisiana Trial Court No. 76564. Honorable Michael Nerren, Judge

          HARPER LAW FIRM, APLC By: Jerald R. Harper Anne E. Wilkes Counsel for Appellant

          J. SCHUYLER MARVIN Counsel for Appellees

          Before PITMAN, STONE, and STEPHENS, JJ.

          PITMAN, J., concurs in the result.

          STONE, J.

         This appeal arises from a possessory action instituted by plaintiffs and spouses, James D. Madden ("James") and Lyda Roberts Madden ("Lyda"), seeking to be recognized as the owners and possessors of the immovable property in dispute. Following a hearing and bench trial on the merits, the trial court denied the defendant, Mary Elizabeth Chumley's ("Beth"), exception of no cause of action, and granted a judgment of possession in favor of the plaintiffs. From this judgment, the defendant appeals. We affirm for reasons other than those assigned by the trial court.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         James and Lyda filed a possessory action against Beth, in her capacity as executrix of the Succession of Johnye Mae Madden, seeking to be recognized as owners and possessors of the immovable property in dispute. James and Beth are siblings, and the descendants of Johnye Mae Madden ("Johnye") and Grady Madden ("Grady") (collectively referred to as "the elder Maddens"). The plaintiffs purchased an 88-acre tract of land from Roy Fincher in 1969 and began construction of their home shortly thereafter. In 1981, with the permission of James and Lyda, began construction of their home. Upon completion of their home, the elder Maddens moved into their home (between 1981 and 1982) continued to occupy the residence together until Grady's death in 1988. Thereafter, Johnye remained in their home until her death on January 26, 2016.

         On October 24, 2017, the Maddens filed a possessory action alleging that in January of 2017, Beth filed a preliminary detailed descriptive list of the property subject to Johnye's succession, which included the disputed immovable property that gave rise to this suit ("disputed property"). In the preliminary detailed descriptive list, Beth referred to James as the "former owner" of the disputed property. On April 6, 2018, Beth filed her answer to the plaintiff's petition where she admitted that the property was sold to the plaintiffs. However, she stipulated that she believed the land was purchased by the family company, Madden Contracting, LLC, for the benefit of the Madden family. She also admitted that a residence was built on the disputed property, but again, upon the information and belief that the construction costs were paid for through funds from Madden Contracting, LLC.

         On August 6, 2018, Beth received notice from the trial court setting a bench trial on the merits for September 26, 2018. Thereafter, the plaintiffs sought to amend their petition to include the following paragraph:

Plaintiffs may use expert opinions in the prosecution of this matter to assist the trier of fact. If so, their fees and costs should be taxed as costs of the court and assessed against the defendant.

         There is some ambiguity in the record as to the date that the plaintiffs' motion to amend was filed. The clerk's office file-stamped the motion to amend on August 29, 2018; however, the record indicates that the trial court granted the plaintiffs' motion to amend on August 23, 2018. Beth received a citation without a copy of the plaintiffs' amended petition on September 11, 2018. Counsel for Beth sent correspondence to the trial judge requesting a status conference to address the following issues: 1) the current stay order in the related succession proceeding which precluded any further filings; and 2) the plaintiffs' amendment which indicated the possibility of expert witnesses offering testimony at the bench trial.

         A week before trial on September 19, 2018, Beth filed a motion to continue, a motion in limine "to exclude and/or limit the trial testimony of Morris Guin and to limit the testimony of James and Lyda Madden, " and an exception of no cause of action. On September 26, 2018, the trial court heard arguments on the motion to continue only, and subsequently granted it. The trial court set the new trial date for October 18, 2018.

         On October 18, 2018, before trial began, the court heard arguments on Beth's exception of no cause of action, which was ultimately denied. In addition, Beth's motion in limine was granted in part and denied in part. Immediately after the pronouncement of the ruling, the bench trial began. The plaintiffs called Beth, James, Morris Guin, and Charles Smith to testify. Beth elected, however, to refrain from calling any witnesses to testify. The trial court subsequently ruled in favor of the plaintiffs, finding that James and Lyda carried their burden entitling them to a judgment of possession. This devolutive appeal ensued.

         DISCUSSION

         Applicable Law

         The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted. La. C.C.P. art. 3655. In a possessory action, the burden of proof is upon the plaintiff to establish the essential elements thereof. Strain v. Aaron, 49, 647 (La.App. 2 Cir. 2/27/15), 162 So.3d 553; Saunders v. Hollis, 44, 490 (La.App. 2d Cir. 8/19/09), 17 So.3d 482, writ denied, 2009–2221 (La.12/18/09), 23 So.3d 945.

         To maintain the possessory action, the possessor must allege and prove that (1) he had possession of the immovable property or real right therein at the time the disturbance occurred; (2) he and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; (3) the disturbance was one in fact or in law, as defined in La. C.C.P. art. 3659; and (4) the possessory action was instituted within a year of the disturbance. La. C.C.P. art. 3658.

         Disturbances of possession which give rise to the possessory action are of two kinds: disturbance in fact and disturbance in law. A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment. A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right. La. C.C.P. 3659.

         For a disturbance to be sufficient to interrupt another's right to possess, the disturbance must bring home to the actual possessor the realization that his dominion is being seriously challenged. Graham v. McRae Expl., Inc., 493 So.2d 705 (La.App. 2 Cir. 1986); Harvey v. Harvey, 431 So.2d 786 (La.App. 1 Cir.1983). As indicated in Harvey, supra, the Louisiana Supreme Court has noted that "a question often arises as to what type of activity by an adverse party will sufficiently interrupt a person's right to possess so as to usurp his possession and strip him of his right upon passage of more than a year's time." Harvey, supra.

         A review of Louisiana jurisprudence reveals that for a disturbance to be sufficient to interrupt another's right to possess, the disturbance must bring home to the actual possessor the realization that his dominion is being seriously challenged. See Pitre v. Tenneco Oil Co., 385 So.2d 840 (La.App. 1 Cir. 1980), writ refused, 392 So.2d 678 (La. 1980). Louisiana courts have found the following acts insufficient to interrupt another's possession: the surveying and marking of boundary lines, S. D. Hunter Found. v. Bd. of Comm'rs, 286 So.2d 525 (La.App. 2nd Cir.1973); sporatic trapping, chicken farming, hunting and leasing a house in the vicinity, Plaisance v. Collins, 365 So.2d 608 (La.App. 1 Cir. 1978); granting of trapping, grazing and mineral leases, Pitre v. Tenneco Oil, supra (La.App. 1st Cir.1980); and occasional hunting, Norton v. Addie, 337 So.2d 432 (La. 1976). Harvey, supra.

         The manifest error applies to the trial court's finding as it relates to possession, and will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. See Strain v. Aaron, supra. However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. See Graphic Packaging Int'l, Inc. v. Lewis, 50, 371 (La.App. 2 Cir. 2/3/16), 187 So.3d 499; Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742; McLean v. Hunter, 495 So.2d 1298 (La. 1986); Picou v. Ferrara, 483 So.2d 915 (La.1986); Suhor v. Gusse, 388 So.2d 755 (La. 1980). Additionally, a court of appeal reviews de novo a lower court's ruling sustaining an exception of no cause of action because the exception raises a question of law and because the lower court's decision is generally based only on the sufficiency of the petition. Villareal v. 6494 Homes, LLC, 48, 302 (La.App. 2 Cir. 8/7/13), 121 So.3d 1246.

         Before evaluating the merits of this appeal, we must first determine the proper standard of review to be applied. At the outset of this appeal, we recognize that the appellate standard to be applied and every assignment of error, with the exception of one, hinges upon our determination of whether the plaintiffs have pled sufficient facts to establish the occurrence of a disturbance in fact or a disturbance in law by a preponderance of the evidence submitted in the record.

         In this case, we will review the entire trial record de novo because Beth is appealing the denial of her exception of no cause of action through one of her assignments of error. However, we also want to note that we find that the trial court committed a legal error which interdicted the fact-finding process by creating a third category of disturbance which we will discuss in greater detail in subsequent sections of this opinion. Because the key issue surrounding this appeal is whether the actions alleged by the plaintiffs are sufficient to constitute a disturbance in fact or law, we will evaluate the merits of Beth's first three assignments of error together.

         Analysis

         Beth argues that the trial court erred, as a matter of law, in denying her exception of no cause of action based on the plaintiffs' failure to prove either a disturbance in fact or disturbance in law. Further, she contends that James and Lyda failed to plead either a disturbance in fact or a disturbance in law within one year of filing the possessory action. In support of this argument, Beth cites the following claims listed in the plaintiffs' original petition for possessory action:

In January of 2017, Chumley, as executrix of Johnye's succession, filed a Preliminary Detailed Descriptive List of Properties in the succession proceeding in which she described Johnye's residence as follows:
"All of Decedent's right, title, and interest in and to Webster Parish, Louisiana immovable property formerly owned by James D. Madden in the SW/4 of SW/4 and the SE/4 of S/W, Section 23, Township 19 North, Range 9 West, together with all buildings and improvements situated thereon."
***
In response to the discovery conducted in Johnye's succession Chumley later confirmed that she is claiming that Johnye acquired an unidentified portion of the Land by ...

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