Thomas Kilpatrick and Cynthia Kilpatrick v. Saline Lakeshore, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-917

THOMAS KILPATRICK AND CYNTHIA KILPATRICK

VERSUS

SALINE LAKESHORE, LLC

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, DOCKET NO. 2014-421
HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese,
Judges.

REVERSED AND REMANDED.

Peters, J., concurs in the result.

Charles A. Riddle, III
208 E. Mark St.
P.O. Box 608
Marksville, LA 71351-0608
(318) 240-7217
ATTORNEY FOR PLAINTIFFS/APPELLANTS
Thomas Kilpatrick and Cynthia Kilpatrick

Rodney M. Rabalais
P.O. Box 447
Marksville, LA 71351
(318) 253-4622
ATTORNEY FOR DEFENDANT/APPELLEE
Saline Lakeshore, LLC

COOKS, Judge.

Thomas and Cynthia Kilpatrick have been married for nearly twenty years.

Together they have possessed two tracts of land on Horse Island located on Saline

Lake in Avoyelles Parish, with movable camps sitting on said tracts, for the

entirety of their marriage.

On March 4, 2013 and April 18, 2013, Thomas Kilpatrick received two

certified letters pertaining to the tracts of land from Saline Lakeshore, LLC

(hereafter Saline). The first letter informed Mr. Kilpatrick that the land in question

was owned by Saline, and if the Kilpatricks had any interest in keeping the

movable camps or “houseboats” on that property, a lease (which accompanied the

letter) would need to be executed. Approximately one week after receipt of the

March 4, 2013 letter, Mr. Kilpatrick went to the office of Saline’s attorney to

discuss the matter. The April 18 letter took a more forceful tone and set a deadline

of May 15, 2013, for the petitioners to comply with the request to execute a lease

or face eviction and be charged with criminal trespass under La.R.S. 14:63. The

Kilpatricks did not comply with the letters’ requests to execute the lease, but no

action was taken by Saline.

On April 24, 2014, the Kilpatricks filed a possessory action against Saline

alleging they had been disturbed in their possession by Saline. In the petition, the

Kilpatricks stated they were “disturbed . . . of their peaceful possession and are

now unable to have the free and unfettered use and enjoyment of the property.”

Subsequent to the filing of the possessory action, Saline filed a peremptory

exception of prescription, noting that under La.Code Civ.P. art. 3658 a possessory

action must be filed within one year of a disturbance in law or in fact. Saline

maintained the Kilpatricks “judicially admitted in their petition that they were

‘disturbed’ in their possession when Saline ‘sent letters and words. . .to remove

their camps.’” These letters, dated March 4, 2013 and April 18, 2013, were sent

and received more than one year before the possessory action was filed, thus Saline

contended the action was prescribed.

A hearing on the exception of prescription was held. At that hearing, Saline

admitted into evidence both letters sent to the Kilpatricks. The evidence adduced

at the hearing established after receiving the March 4, 2013 letter, Mr. Kilpatrick

went to the office of counsel for Saline, Rick Farrar. Mr. Kilpatrick testified at the

hearing as follows:

Q: Okay. Then when you went to Rick Farrar’s office did he tell you
anything that put you in, in fear, or it gave you great concern about the
property where your house boat is located on Horse Island?

A: Yea, I was something was in there about being arrested if I went
back.

Q: Okay. And so you had concern about your property that the
property that you were possessing?

A: Yes.

Mr. Kilpatrick also testified, subsequent to the receipt of the letters from Saline, he

sold his houseboat located on the property on Horse Island to his brother. Mr.

Kilpatrick maintained he did not sell his possessory interest in the lots, and he and

his wife continued to enjoy the possession of the two lots. After approximately

one year passed, Mr. Kilpatrick bought back the houseboat from his brother for the

same price.

The trial court granted Saline’s exception of prescription, finding the

Kilpatricks received “actual notice which has not been disputed” which “impl[ied]

a right of ownership on behalf of, of Saline[.]” The trial court found the letters

“caused a disturbance in the lives of the possessors such that they felt that legal

action was, was imminent that they were being challenged[.]” Judgment was

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rendered maintaining Saline’s exception of prescription on July 23, 2015. This

appeal followed.

ANALYSIS

In Dugas v. Bayou Teche Water Works, 10-1211, pp. 4-5 (La.App. 3 Cir.

4/6/11), 61 So.3d 826, 829-30, we reviewed the law pertaining to the exception of

prescription:

The peremptory exception of prescription is provided for in
La.Code Civ.P. art. 927(A)(1). When the exception of prescription is
tried before the trial on the merits, “evidence may be introduced to
support or controvert [the exception] when the grounds thereof do not
appear from the petition.” La.Code Civ.P. art. 931.

When an exception of prescription is filed,
ordinarily, the burden of proof is on the party pleading
prescription. Lima v. Schmidt, 595 So.2d 624, 628
(La.1992). However, if prescription is evident on the
face of the pleadings, as it is in the instant case, the
burden shifts to the plaintiff to show the action has not
prescribed. Id.; Younger v. Marshall Ind., Inc., 618
So.2d 866, 869 (La.1993); Williams v. Sewerage &
Water Bd. of New Orleans, 611 So.2d 1383 (La.1993).

Eastin v. Entergy Corp., 03-1030, p. 5 (La.2/6/04), 865 So.2d 49, 54.

If evidence is introduced, the trial court’s findings of fact are
then subject to a manifest error analysis. London Towne Condo.
Homeowner’s Ass’n v. London Towne Co., 06-401 (La.10/17/06), 939
So.2d 1227. If no evidence is introduced, then the reviewing court
simply determines whether the trial court’s finding was legally
correct. Dauzart v. Fin. Indent. Ins. Co., 10-28 (La.App. 3 Cir.
6/2/10), 39 So.3d 802.

On the trial of a peremptory exception of prescription, evidence may be

introduced to support or controvert any of the objections pleaded. La.Code Civ.P.

art. 931. When evidence is introduced into the record and evaluated by the trial

court at the trial of a peremptory exception, then the appellate court should not

disturb the factual findings of the trial court absent manifest error. Dugas, 61

So.3d 826. The Kilpatricks contend the trial court erred in maintaining Saline’s

exception of prescription, arguing the letters from the attorney, “in and of
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[themselves], without any further action, [are not] sufficient to satisfy the burden

of proof necessary to cause a disturbance in fact of possession under Louisiana

law.”

The Kilpatricks argue the letters sent from Saline’s attorney are not disturbances

in fact, but rather disturbances in law. The trial court when pressed by counsel for

the Kilpatricks stated he found the letters were a disturbance in fact. Louisiana

Code of Civil Procedure Article 3659 defines disturbances in fact and law, and

provides:

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.

The categorization of the disturbance in this case is vital, as this court in Roy

O. Martin Lumber Co., Inc. v. Lemoine, 381 So.2d 915, 919 (La.App. 3 Cir.1980),

held that “[w]hen the disturbance is one in law, it amounts to a continuing

disturbance. Thus, it is regarded as occurring not only on the date of recordation of

the instrument, but each day thereafter as long as it exists.” The April 18, 2013

letter specifically stated that no action would be taken until May 15, 2013. The

possessory action was filed on April 24, 2014, which is within one year from the

date any proposed action that would have interfered with the Kilpatrick’s

possession of the property was to occur. Therefore, if the disturbance is one of law

rather than fact, the possessory action would not have prescribed.

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This court in LePrettre v. Progressive Land Corp., 01-1660, p. 7 (La.App. 3

Cir. 6/19/02), 820 So.2d 1240, 1246 (emphasis added), found “[a] disturbance in

fact is any physical act which prevents the possessor from enjoying his immovable

property quietly or which becomes an obstacle to that enjoyment.” Recently, in

Meaux v. Miller, 09-1018 (La.App. 3 Cir. 3/10/10), 33 So.3d 406, held that a

mineral lease was not a physical act, although we did find any actual production on

the property as a result of the lease would be a physical act which prevents the

possessor from enjoying his property. Similarly, in Graham v. McRae Exploration

Inc., 493 So.2d 705, 708 (La.App. 2d Cir.1986), the appellate court held the

execution and recordation of a mineral lease on property, without more, constitutes

a disturbance in law, but not a disturbance in fact.

In Hawkins v. Ashuca Co., Inc., 94-506 (La.App. 3 Cir. 12/21/94), 649 So.2d

766, we found the trial court erred in failing to recognize that a disturbance in law

caused by the recordation of the tax deed was ongoing and continuous. The

prescriptive period of one year from date of disturbance was in essence interrupted

every day from the date that it was recorded and did not begin to run until the

actual eviction. Thus, it followed that the possessory action filed well within one

year of the actual eviction was not prescribed.

The case of Chauvin v. Kirchhoff, 194 So.2d 805 (La.App. 1 Cir.1967),

involved a possessory action based entirely on a disturbance in law, a recorded

right-of-way servitude. The court in Chauvin stated:

The right-of-way deed, which was placed of record on March
22, 1960, is offered as a disturbance in law, remains of record and
continues to exist. Again applying the above authorities, plaintiffs'
rights have not prescribed. Admittedly, the exercise of a servitude
may result in a physical disturbance to the possessor, but this does not
occur until the servitude is exercised and some work, such as the
construction of a road or the building of a levee, has the practical
effect of evicting the possessor from that portion of his land covered
by the servitude. In this case, defendant relied solely on the granting
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and recordation of the right-of-way deed as a disturbance. While
plaintiffs acknowledged knowing of the road and its proposed
construction, there is not one scintilla of evidence that the right-of-
way and the road constructed pursuant thereto crossed over or even
touched the land claimed or possessed by plaintiffs.

A review of the jurisprudence indicates the letters sent to the Kilpatricks are

at most a disturbance in law. The record established there was no physical

disturbance of the Kilpatricks’ possession at any point in these proceedings.

Despite the threats in the letter of April 18, 2013, no eviction occurred nor were

any criminal charges for trespass brought.

Having concluded the letters from Saline’s attorney were a disturbance in

law, we consequently find the one-year prescriptive period had not yet run when

the Kilpatricks filed their possessory action. As stated above, the April 18, 2013

letter specifically stated that no action would be taken until May 15, 2013. The

possessory action was filed on April 24, 2014, which is within one year from the

date any proposed action that would have interfered with the Kilpatricks’

possession of the property was to occur. Thus, the one year period within which to

file the possessory action would not have prescribed. The trial court erred in

granting the exception of prescription.

DECREE

For the foregoing reasons, the judgment of the trial court granting the

exception of prescription is reversed. All costs of this appeal are assessed to

defendant-appellee, Saline Lakeshore, LLC.

REVERSED AND REMANDED.

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