Estate of Albert Rhea, Sr. and Carolyn Rhea Versus Donna Phillips, Individually and as and Estates of Edna Williams Rhea, and Samuel Peter Rhea, Sr.

Fifth Circuit Court of Appeal
State of Louisiana
__________

No. 26-CA-27
________________

ESTATE OF ALBERT RHEA, SR. AND CAROLYN RHEA

versus

DONNA PHILLIPS, INDIVIDUALLY AND AS EXECUTOR, AND ESTATES OF EDNA
WILLIAMS RHEA, AND SAMUEL PETER RHEA, SR.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 854-130, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

September 23, 2026

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Timothy S. Marcel

AFFIRMED.

SMC
JJM
TSM

COUNSEL FOR PLAINTIFF/APPELLANT,
ESTATE OF ALBERT RHEA, SR. AND CAROLYN RHEA
Thomas G. Donelon

COUNSEL FOR DEFENDANT/APPELLEE,
DONNA PHILLIPS, INDIVIDUALLY AND AS EXECUTOR, AND
ESTATES OF EDNA WILLIAMS RHEA AND SAMUEL PETER
RHEA, SR.
Steven J. Koehler
Carrie H. Pailet

CHEHARDY, C.J.

Plaintiffs/Appellants, the Estate of Albert E. Rhea, Sr. and Carolyn Rhea,

seek review of the trial court’s judgment granting the motion for involuntary

dismissal filed by Defendants/Appellees—Donna Phillips, individually and in her

capacity as administratrix of the Succession of Edna Williams Rhea, wife of/and

Samuel Peter Rhea, Sr. For the reasons that follow, we affirm the trial court’s

judgment.

Background and Procedural History

This appeal stems from the attempt by a succession administratrix to sell

immovable property—specifically, a home located at municipal address 2918

Clermont Road in Jefferson, Louisiana. This property was originally purchased by

Samuel and Edna Rhea. After their deaths in 1969 and 1971 respectively, their son

Albert E. Rhea, Sr. took corporeal possession of the home and lived there with his

wife, Carolyn Rhea, until his death in 2023.1 His wife Carolyn survives him, and is

a named plaintiff in this matter.

On August 17, 2022, the Successions of Edna and Samuel Rhea were

opened under Case No. 831-712 in the Twenty-Fourth Judicial Court, with Donna

Phillips appointed the administratrix of the Successions. She thereafter filed the

motion to sell 2918 Clermont.

Carolyn Rhea and the Succession of Albert E. Rhea, Sr. filed a petition for a

petitory action in the Twenty-Fourth Judicial District Court against the Successions

of Edna and Samuel Rhea in Case No. 854-130, alleging that Plaintiffs/Appellants

acquired ownership of 29l8 Clermont Street through 30-year acquisitive

prescription. Defendants/Appellees filed a motion to involuntarily dismiss

1
Albert E. Rhea, Sr., himself was born on February 16, 1944.

26-CA-27 1

Plaintiffs’/Appellants’ petition on the basis that the 30-year acquisitive prescription

had not accrued.

Trial for this matter was held on August 4, 2025. The trial court ultimately

granted Defendants’/Appellees’ motion to involuntarily dismiss

Plaintiiffs’/Appellants’ petition for petitory action, asserting that the claim for

acquisitive prescription failed because they were unable to prove via notice to the

other heirs of Samuel and Edna Rhea or via overt and unambiguous acts that they

intended to own 2918 Clermont for themselves and to the exclusion of all others,

as would be required by La. C.C. art. 3478.

Plaintiffs/Appellants timely appealed the judgment, asserting that they met

the legal requirement for 30-year acquisitive prescription and that ownership had

passed to Plaintiffs/Appellants. They also contest the trial court’s refusal to admit

into evidence (1) proof that Defendants/Appellees waived their right to participate

in the assets of the estate because they failed to make a claim for 30 years, (2)

statements by Albert E. Rhea, Sr., made outside of the trial court because they

were hearsay, and (3) Albert E. Rhea, Sr.’s conversation with his attorney because

no one available was legally able to waive the lawyer/client privilege. Finally,

Plaintiffs/Appellants contest the trial court’s refusal to allow a witness on the Pre-

Trial order list to testify.

Discussion

Under La. C.C. art. 3486, ownership and other real rights in immovables

may be acquired by the prescription of 30 years without the need of just title or

possession in good faith. However, this prescription is not without prerequisites.

Louisiana Civil Code Article 3476 requires that the possessor must have corporeal

possession—or civil possession preceded by corporeal possession—and that such

possession must be continuous, uninterrupted, peaceable, public, and unequivocal.

Additionally, La. C.C. art. 3424 requires that a person must intend to possess as

26-CA-27 2

owner and must take corporeal possession of the thing. To acquire ownership, a

possessor must establish not only corporeal possession for the required period, but

also a positive intent to possess as owner. McCoy v. Toms, 384 So.2d 518 (La. Ct.

App. 1980).

The threshold obstacle to Plaintiffs’/Appellants’ claim is the doctrine of

precarious possession. Louisiana Civil Code article 3437 defines precarious

possession as the exercise of possession over a thing with the permission of or on

behalf of the owner or possessor. Louisiana Civil Code article 3477 provides

unambiguously that acquisitive prescription does not run in favor of a precarious

possessor or his universal successor.

However, critically, because a co-owner possesses immovable property for

himself and his co-owners, he is deemed a precarious possessor by operation of

law. Hooper v. Hooper, 06-0825 (La. App. 3 Cir. 11/2/06), 941 So.2d 726.

Louisiana Civil Code Article 3438 further provides that a precarious possessor is

presumed to possess for another even though he actually intends to possess for

himself—a presumption that operates against Plaintiffs/Appellants, regardless of

their subjective intent.

When Edna Rhea died in 1971, Albert E. Rhea, Sr., as an heir, became a co-

owner of the undivided succession property pursuant to La. C.C. art. 935.

Furthermore, pursuant to La. C.C. 802, he had a right to remain at the Clermont

address following the ownership transfer to the heirs after the death of Samuel and

Edna Rhea. From that moment, the general rule applied: possession by a co-owner

is exercised on behalf of all co-owners. Fuselier v. Billeaud Sugar Factory, 19-487

(La. App. 3 Cir. 6/24/20), 317 So.3d 632. Albert E. Rhea, Sr.’s uninterrupted

physical occupancy of the home from 1971 to 2023, while more than adequate to

establish prescription against a stranger, was legally insufficient to commence the

running of the prescription clock against his co-owners.

26-CA-27 3

Louisiana Civil Code article 3478 provides the only path by which a co-

owner may commence to prescribe: he must demonstrate by overt and

unambiguous acts sufficient to give notice to his co-owner that he intends to

possess the property for himself. Until such a demonstration is made, acquisitive

prescription never commences. Hooper, 941 So.2d 726. The Louisiana Supreme

Court confirmed in 1026 Conti Holding, LLC v. 1025 Bienville, LLC, 22-01288

(La. 3/17/23), 359 So.3d 930, that a co-owner commences to possess for himself

only when he demonstrates this intent by overt and unambiguous acts sufficient to

give notice to his co-owner, and that current law imposes this burden squarely on

the co-owner seeking to acquire by prescription.

In this matter, neither Albert E. Rhea, Sr. nor his wife Carolyn made any

overt acts of ownership beyond paying bills and making repairs between 1971 and

2023, when acquisitive prescription could have possibly accrued. Louisiana

jurisprudence has consistently found such conduct insufficient. In Bailey v.

Alexander, 376 So.2d 620 (La. Ct. App. 1979), the court held that mere possession

by a co-owner is explainable on the basis of implied consent to occupancy or the

presumption that possession by one co-owner is generally exercised on behalf of

all co-owners and thus does not constitute unequivocal adverse possession.

In Hooper, 941 So.2d 726, the Louisiana Third Circuit Court of Appeal

specifically held that a brother’s occupancy and acts of possession for over 30

years were sufficient to establish prescription adverse to a stranger, but because the

occupant and his sibling were co-owners, the burden was to show when and how

the occupant demonstrated by overt and unambiguous acts his intent to possess for

himself—a burden his heirs failed to meet. Paying bills and performing repairs

falls squarely within the category of acts consistent with permissive co-owner

occupancy, not adverse possession. Furthermore, the tax bill remained in the

26-CA-27 4

names of the deceased Edna and Samuel even after ownership transferred to the

heirs.

Louisiana Civil Code article 3477’s bar extends explicitly to the universal

successor of the precarious possessor. Because Albert E. Rhea, Sr. never

converted his precarious possession into adverse possession—prescription having

never commenced during his lifetime—his estate steps into the same legal position.

As to the Plaintiffs’/Appellants’ assignments of error related to the

admission of evidence and witnesses, La. C.C.P. art. 1631 allows the trial court

discretion as to how to conduct its trials, including what evidence and witnesses to

be included or excluded from a matter. The trial court did not abuse its discretion

in refusing to admit the hearsay testimony of the deceased Albert E. Rhea, Sr.,

finding that the statement did not fall into one of the hearsay exceptions

enumerated in La. C.E. art. 804. Secondly, the trial court did not err in refusing to

admit privileged recorded conversations between Albert E. Rhea, Sr. and his

attorney because no one was present who could waive attorney/client privilege on

behalf of the deceased Mr. Albert Rhea and because it determined that none of the

Article 804 hearsay exceptions applied. Finally, the trial court did not err in

denying the Plaintiffs/Appellants the opportunity to present the testimony of Craig

Wright, a witness listed on the Pre-Trial Order who was not present at trial. The

trial court determined Mr. Wright would only be offering cumulative testimony.

Furthermore, Mr. Wright was not subpoenaed, and Defendants/Appellees

stipulated to Mr. Wright’s proposed testimony.

CONCLUSION

For the foregoing reasons, the trial court’s judgment granting

Defendants’/Appellees’ motion to involuntarily dismiss Plaintiffs’/Appellants’

petition for petitory action is affirmed.

AFFIRMED.

26-CA-27 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. TRAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 23, 2026 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

26-CA-27
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
THOMAS G. DONELON (APPELLANT) CARRIE H. PAILET (APPELLEE) STEVEN J. KOEHLER (APPELLEE)
DERISHA RHEA (APPELLANT)

MAILED
CAROLYN RHEA (APPELLEE) SHELITA M. SIMMONS (APPELLEE)
1 INCARNATE WORD DRIVE 663 SIZELER AVENUE
KENNER, LA 70065 JEFFERSON, LA 70121