Lyn Baker v. Rogerist L. Romero

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1125

LYN BAKER

VERSUS

ROGERIST L. ROMERO, ET AL.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 59,544
HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Phyllis
M. Keaty, Judges.

AFFIRMED.

John W. Pickett
Attorney at Law
Post Office Box 250
Many, Louisiana 71449
(318) 256-3846
Counsel for Plaintiff/Appellant:
Lyn Baker

David P. Bruchhaus
Mudd & Bruchhaus, L.L.C.
410 East College Street
Lake Charles, Louisiana 70605
(337) 562-2327
Counsel for Defendants/Appellees:
Carol Lynn Romero
Rogerist L. Romero

KEATY, Judge.

Plaintiff, Lyn Baker, appeals a judgment dismissing her petitory action against

Defendants, Rogerist Romero and Carol Romero, and granting their possessory action

on the basis that Baker did not meet her burden of proof regarding her claim of

ownership of the subject immovable property while the Romeros established as a

matter of law their right to possess the property. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

According to a Cash Sale Deed (the Deed) recorded on July 26, 2006, Baker1

acquired the “right, title and interest” in a forty-foot strip of property located in the

Toledo Bend Reservoir in Sabine Parish (the Property) from six of her relatives for

the purchase price of $10. Shortly thereafter, Baker, through her attorney, mailed a

certified letter to the Romeros, owners of land adjacent and contiguous to the

Property, to inform them that she had recently acquired the Property and would be

having it surveyed in the near future. This litigation ensued after the Romeros would

not allow the surveyor hired by Baker to have access to the portions of the Property

contained within the land that they owned.

Baker filed a Petition for Injunctive Relief against the Romeros, seeking to

enjoin the Romeros from interfering with her exercise of ownership of the Property

and specifically requesting that the Romeros be ordered to refrain from interfering

with Baker’s attempt to have the Property surveyed. Attached as Exhibit “A” to the

petition was a description of the Property.

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Baker’s husband, Tommy Baker, who was also listed as a purchaser on the Deed, died before
Baker initiated this litigation.

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The Romeros filed an Answer and Reconventional Demand acknowledging

that they would not allow Baker’s surveyor on their property and claiming

“possession and ownership of all property referenced herein,” including the land

which Baker claimed to own. More specifically, the Romeros asserted that they were

the title owners and possessors of ten tracts of land as described in their own Exhibit

“A,” which they attached to their answer. The Romeros additionally asserted that

they and their ancestors in title had possessed the Property without interruption for

“much longer than” one year. The Romeros claimed that Baker had trespassed on the

Property, and they requested that she and her agents, assigns, employees, and

successors in title be prevented from using the Property and that they be awarded

damages for the loss of use of the Property. In addition, the Romeros requested that

the trial court render a judgment recognizing their right to possession of the Property.

Baker answered the Romeros’ reconventional demand in the form of a general

denial. Thereafter, she filed a motion for summary judgment seeking a judgment

recognizing her as owner of the Property, ordering the Romeros to vacate the

premises, and dismissing the Romeros’ claims against her with prejudice. The motion

was originally set for hearing; however, the trial court minutes reflect that the hearing

was reset after the trial court was informed that the Romeros had not been served with

the motion. The Romeros later filed a memorandum in opposition to Baker’s motion.

The minutes from August 13, 2008, reflect that after taking arguments, the trial court

denied Baker’s motion for summary judgment. The minutes further reflect that the

Romeros agreed to allow Baker to survey the Property at her expense.

Baker filed a motion to amend and supplement her original petition. Therein,

she stated that the Property had been surveyed and that a plat had been prepared and

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provided to the parties. According to Baker, the survey and plat reflected that the

Romeros had and continue to trespass on land owned by her and that they had erected

and/or moved structures onto the Property without her consent. Baker sought a

judgment recognizing her as the owner of the Property and all structures placed

thereon by the Romeros, both movable and immovable. Alternatively, Baker prayed

that the Romeros be ordered to remove the structures at their expense. The Romeros

answered Baker’s motion to amend and supplement in the form of a general denial.

A bench trial took place on Baker’s petitory action. After hearing closing

arguments, the trial court invited the parties to submit post-trial memoranda. In a

written judgment, the trial court found that:

1. Plaintiff did not meet her burden of proof to establish ownership
of the subject immovable property as a matter of law,

2. Defendants have been in statutory possession of the subject
property since 1988, and

3. Plaintiff’s Motion for Summary Judgment promptly and properly
converted Defendants’ possessory action pleaded in their
Reconventional Demand to a viable and justiciable petitory
action.

Accordingly, judgment was rendered in favor of the Romeros and against Baker

dismissing her petitory action. The Romeros’ possessory action was granted because

the trial court found that they had established as a matter of law the right to possess

the Property.

Baker timely filed a motion for new trial wherein she argued that due to the

Romeros’ last minute abandonment of their claims of ownership of the Property, her

burden of proof changed from that of proving better title than that of the Romeros to

proving title good against the world. As a result, she requested that the case be re-

opened to allow her to introduce additional documentary evidence in order to meet

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her newly heightened burden of proof. The Romeros opposed the motion, contending

that Baker was made aware of their possessory action when they filed their

reconventional demand against her, and, thus, she had ample opportunity to offer the

evidence necessary to meet her burden of proof.

Following a hearing, the trial court granted Baker’s motion for new trial. The

matter was retried at which time Baker entered the entire record and all testimony

from the original trial into evidence, together with additional documentary evidence

which she claimed established ownership of the Property back to the sovereign. The

Romeros argued that Baker had again failed to meet her burden of proof. Following

the hearing, the matter was taken under advisement.

In a written judgment signed on July 19, 2010, the trial court found that Baker

did not meet her burden of proof regarding her claim of ownership of the Property as

a matter of law. As a result, the trial court affirmed the prior judgment rendered on

August 18, 2009; rendered judgment in favor of the Romeros and against Baker,

dismissing Baker’s petitory action; granted the Romeros’ possessory action on the

basis that they had established their right to possess the Property as a matter of law;

and ordered that costs be equally divided between the parties.

Baker is now before this court on appeal, asserting the following assignments

of error. First, Baker claims that the trial court erred in failing to make the Romeros

the plaintiffs in the petitory action concerning the Property by virtue of their answer

and reconventional demand wherein they pled possession and ownership of the

Property. Plaintiff further claims that the Romeros’ possession claims were waived

upon their making a claim of ownership. Accordingly, Baker submits that the trial

court should have granted her motion for summary judgment when the Romeros

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failed to present any proof of title in opposition to her motion. Second, Baker asserts

that although she should not have had to bear the burden of proof in the petitory

action, she did establish her title in an unbroken chain back to Wyatt Speight, a man

whom the same trial court declared to be the judicial owner of the same land in 1919.

Thus, according to Baker, the trial court did not have to apply the harsh evidentiary

standard set forth in Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974). Instead, the

trial court should have applied the supreme court’s holding in Badeaux v. Pitre, 382

So.2d 954 (La.1980) and held that Baker met her burden of proof because she

established title that was apparently good. Third, Baker contends that even if she was

the proper plaintiff in the petitory action and the Pure Oil standard was properly

applied, the trial court incorrectly read Pure Oil to include “a requirement that every

title chain in a petitory action trace itself to a government transaction.” Had the trial

court correctly applied Pure Oil, Baker argues, she would have been entitled to a

declaration of her ownership of the Property because she proved better title to the

Property than the Romeros, who admittedly have no title to it.

DISCUSSION

Louisiana Code of Civil Procedure Article 3651 defines a petitory action as

“one brought by a person who claims the ownership, but who is not in possession, of

immovable property or of a real right therein, against another who is in possession or

who claims the ownership thereof adversely, to obtain judgment recognizing the

plaintiff’s ownership.” Thereafter, La.Code Civ.P. art. 3653 provides that:

To obtain a judgment recognizing his ownership of immovable
property or real right therein, the plaintiff in a petitory action shall:

(1) Prove that he has acquired ownership from a previous owner
or by acquisitive prescription, if the court finds that the defendant is in
possession thereof; or

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(2) Prove a better title thereto than the defendant, if the court finds
that the latter is not in possession thereof.

When the titles of the parties are traced to a common author, he
is presumed to be the previous owner.

On the other hand, the code of civil procedure defines a possessory action as

“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.Code Civ.P. art. 3655. “In the possessory action, the ownership

of title of the parties to the immovable property or real right therein is not at issue.”

La.Code Civ.P. art. 3661.

Fortunately, the Louisiana Code of Civil Procedure contains provisions to

govern situations where the parties involved in a matter concerning the ownership of

or real rights to immovable property alter their positions during the course of

litigation involving the property. Louisiana Code of Civil Procedure Article 3657

provides, in pertinent part, that:

The plaintiff may not cumulate the petitory and the possessory
actions in the same suit or plead them in the alternative, and when he
does so he waives the possessory action. If the plaintiff brings the
possessory action, and without dismissing it and prior to judgment
therein institutes the petitory action, the possessory action is abated.

When, except as provided in Article 3661(1)-(3), the defendant in
a possessory action asserts title in himself, in the alternative or
otherwise, he thereby converts the suit into a petitory action, and
judicially confesses the possession of the plaintiff in the possessory
action.

In Pure Oil, 294 So.2d 797, the issue concerned the plaintiff’s burden of proof

in a petitory action when the defendant is in possession of the property in

controversy. The supreme court held that those claiming title or ownership of

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disputed land in the possession of others are “required to prove valid record title, to

show title good against the world without regard to the title of the party in possession.

C.C.P. Arts. 3653, 3654.” Id. at 799.

Badeaux, 382 So.2d 954, likewise involved a petitory action brought by a

claimed owner of a tract of land against a person possessing the land; however, the

defendant was found to have been a precarious possessor in that he possessed the land

not on his own behalf but rather on behalf of and with the permission of another. See

La.Civ.Code art. 3437.2 That being the case, the supreme court held that the plaintiff

had met his burden of proof in his petitory action by proving that he had acquired the

tract of land by thirty-year acquisitive prescription. Id. In doing so, the supreme

court noted:

“Although it be true that the plaintiff in a petitory action, must succeed
on the strength of his own title, and not on the weakness of his
adversary’s yet, when the latter has no title at all, he cannot, as a
trespasser, take advantage of any defect in the former’s muniments of
title. In such cases, a title apparently good, is all that is required to
maintain the petitory action.” Zeringue v. Williams[,] 15 La.Ann. 76
[(La.1860)].

Id. at 956.

Assignment of Error Number One

Baker contends that the trial court erred in failing to make the Romeros the

plaintiffs in the petitory action after they asserted possession and ownership of the

Property in their answer and reconventional demand. In addition, she insists that the

Romeros’ possession claims were waived pursuant to La.Code Civ.P. art. 3657 when

they made a claim of ownership of the Property. The Romeros counter that after the

Property was surveyed, they acknowledged that they no longer had a claim of

2
Louisiana Civil Code Article 3437 provides: “The exercise of possession over a thing with
the permission of or on behalf of the owner or possessor is precarious possession.”

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ownership and instead were claiming possession of the Property. Moreover, the

Romeros claim that because Baker did not assert in the trial court that they should

have been the plaintiffs in the petitory action, she should be precluded from asserting

that argument for the first time on appeal.

In their answer and reconventional demand, the Romeros assert that they are

the title owners of ten tracts of land and that they and their ancestors in title have

possessed the Property for well over one year without interruption. Their prayer for

relief requests that judgment be rendered recognizing their right to possession of the

Property. Moreover, the Romeros stipulated at the June 19, 2009 hearing that they

did not have title to the Property and were instead alleging good faith possession of

the Property.

Ultimately, the Romeros did not claim ownership of the Property and thus did

not waive their possession claims. In addition, because Baker did not allege in the

trial court that the burden of proof in the petitory action should have shifted to the

Romeros, she cannot make that argument for the first time on appeal. See Uniform

Rules—Courts of Appeal, Rule 1–3; Guilbeau v. Times of Acadiana, Inc., 94-1270

(La.App. 3 Cir. 8/9/95), 661 So.2d 1027, writ denied, 95-2942 (La. 3/29/96), 670

So.2d 1238. The trial court was correct in not making the Romeros the plaintiffs in

the petitory action. Baker’s first assignment of error lacks merit.

Assignment of Error Number Two

Baker next contends that the trial court erred in applying the Pure Oil standard

and requiring that she prove title good against the world. She argues that the trial

court should have instead applied the La.Code Civ.P. art. 3657 standard and simply

required that she prove title better than that of the Romeros, as was done in Badeaux,

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382 So.2d 954, a supreme court decision rendered after Pure Oil. The Romeros insist

that the trial court properly and appropriately applied the Pure Oil standard and that

Badeaux is not applicable to this matter. In support of their argument, they rely on

Aymond v. Smith, 476 So.2d 1081, 1084 (La.App. 3 Cir. 1985), wherein this court

held that:

When the defendant in the petitory action . . . is in possession, the
plaintiff in the petitory action . . . must rely on the strength of his own
title and not the weakness of that of his adversary, and the title of the
defendant in the petitory action is not at issue until the plaintiff has
proved valid title in himself.

Aymond, which was decided by this court eleven years after the supreme court

handed down the Pure Oil decision and four years after it handed down the Badeaux

decision, began as a possessory action brought by a plaintiff who claimed that the

defendant had disturbed his possession of a one acre tract of land. In answer to the

petition, the defendant denied the plaintiff’s possession, claiming that he owned the

land through title or thirty-year acquisitive prescription. We noted that, in claiming

ownership of the disputed property, the defendant converted the possessory action

into a petitory action in which he became the plaintiff with the burden of proving

“ownership either by an unbroken chain of valid transfers from the sovereign or an

ancestor in title common with the defendant or by acquisitive prescription.” Id.

(citations omitted). We further noted that “[i]f the plaintiff in the petitory action

should fail and be unable to make out his title good against the world, his demands

must be rejected and his case dismissed even if the defendant in the petitory action

has no title to the property.” Id. at 1084 (citing Garrett v. Ernest, 369 So.2d 713

(La.App. 1 Cir.), writ denied, 371 So.2d 1340 (La.1979); Weaver v. Hailey, 416 So.2d

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311 (La.App. 3 Cir. 1982);3 Crown Zellerbach Corp. v. Heck, 407 So.2d 770

(La.App. 1 Cir. 1981); and Osborn v. Johnston, 308 So.2d 464 (La.App. 3 Cir.), aff’d,

322 So.2d 112 (La.1975)).

Considering our prior decision in Aymond, we cannot conclude that the trial

court erred in requiring Baker to prove title good against the world. Moreover, we

agree that Baker’s reliance on Badeaux is misplaced given the fact that the defendant

in that petitory action was a precarious possessor who possessed the disputed

property with the permission of its owner. Here, Mr. Romero testified that when he

purchased the tract of land in 1987, he believed that he was getting all of the property

within certain boundaries; there were no markers around the forty-foot strip, i.e., the

Property now at the center of this litigation. Mr. Romero further testified that no one

had ever given him any indication that they owned the Property until he got the letter

from Baker in 2006 seeking to survey the Property which she claimed to have

recently purchased. Baker’s second assignment of error is without merit.

Assignment of Error Number Three

Finally, Baker asserts that even if she was the proper plaintiff in the petitory

action and Pure Oil was properly applied, the trial court erred by reading into it a

requirement that her title chain be traceable to a government transaction. The

Romeros counter that the trial court properly applied the law of Pure Oil and Aymond

and correctly held that the July 8, 1885 sheriff’s tax sale deed upon which Baker

relied was “not a transfer of title ‘with a sovereign grant as its origin.’”

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We determined that the legislature did not intend to overrule Pure Oil “when it adopted Civil
Code articles 531 and 532 in 1979 and amended Code of Civil Procedure article 3653(1) in 1981.”
Weaver, 416 So.2d at 316.

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In dismissing Baker’s petitory action and granting the Romeros’ possessory

action on the basis that they established their right to possess the Property, the trial

court, referring to the burden established in Pure Oil, noted the Latin phrase “Dura

Lex, Sed Lex” which means “the law is harsh, but it is the law.” Nevertheless, the

trial court recognized that although it had been heavily criticized, Pure Oil remained

the law of this state and it was “duty-bound to apply it.” Citing Aymond, the trial

court reasoned that “[a] tax sale bespeaks prior private ownership, thus the

evidentiary destination to a sovereign grant, the originating transfer upon which all

title to the tract is founded, has not been reached.” The trial court went on to state:

Ownership back to a common ancestor in title, another route to
prove ownership, does not apply here as Defendants claimed only
possession of the subject tract, thus no possibility of a common author.
The remaining alternative to prove ownership, acquisitive prescription,
was neither pleaded nor argued and the court is prohibited from doing
so sua sponte. La.Civ. Code art. 3452.

As noted by the trial court, Baker could have proven her claim of ownership

of the Property through several routes other than by tracing her chain of title back to

the sovereign, but for the reasons that it outlined, she was unable to do so. We are

convinced that the trial court properly applied the law to this matter and that Baker

simply failed to meet the requisite burden of proof. Baker’s final assignment of error

lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in entirety.

All costs of this appeal are assessed against the plaintiff, Lyn Baker.

AFFIRMED.

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