James C. Perkins (As Trustee of the Living Trust of James and Emily Perkins) v. Andrew J. Fowler, Etc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-392

JAMES C. PERKINS, ET AL

VERSUS

ANDREW J. FOWLER, ET AL

C/W 17-393
ANDREW J. FOWLER, ET AL

VERSUS

JAMES C. PERKINS, ET AL

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 250,334 C/W 250,346
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
Shannon J. Gremillion, Judges.

REVERSED AND REMANDED.

Richard A. Rozanski
Wheelis & Rozanski
2312 South MacArthur Drive
Alexandria, LA 71315
(318) 445-5600
COUNSEL FOR PLAINTIFF/APPELLANT:
James C. Perkins

Brian K. Thompson
Thompson Law Firm, LLC
3600 Jackson Street, Suite 115B
Alexandria, LA 71303
(318) 473-0052
COUNSEL FOR DEFENDANT/APPELLEE:
Andrew J. Fowler

COOKS, Judge.

This appeal arose from the trial court’s judgment in favor of

defendants/appellees, Andrew Fowler and the Unopened Succession of Blanch

Deramus Fowler, granting the motion for summary judgment recognizing their

right to the possession of a thirty-two foot tract of land. For the following reasons,

we reverse the judgment of the trial court and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 12, 1963, James C. Perkins and Emily L. Perkins, purchased a 10.2

acre tract of land located in Lecompte, Louisiana. The Perkins established this

property as their homestead, clearing the land and building a home. They

maintained a constant presence on the land from that date to the present.

In 2014, Andrew Fowler, who lived on land next to the Perkins, began

removing fencing and trees on property the Perkins alleged belonged to them. The

Perkins eventually contacted the Rapides Parish Sheriff’s Department in

connection with this activity. In connection with this, on June 11, 2014, James C.

Perkins, as Trustee of the Living Trust of James and Emily Perkins, filed a

“Petition for Possession, Temporary Restraining Order, Preliminary and Permanent

Injunction and Damages.” At issue was a thirty-two foot strip of land that

bordered the Perkins property on the south side. In the possessory action, it was

claimed the Perkins had been in “actual physical, corporeal possession, with the

intent as owner” of the property in question “for a period in excess of one (1) year

prior to any disturbance in fact by Defendant.” A Temporary Restraining Order

and Rule to Show Cause was issued by the district court on June 11, 2014.

In their suit, the Perkins claimed that, for seventy years, there existed a

barbed wire fence encompassing the Perkins’ tract of land. They further asserted

this fence was maintained and utilized by them, but that over time trees began to

grow along the property line, and the fence began to decay. They assert the tree

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line essentially became the fence line of the property, and they would connect the

barbed wire fence to the trees to keep it upright. They maintained at all times they

have lived on the property and possessed up to the tree line as owners.

In response, Fowler answered the Perkins suit and also, on October 14,

2014, Fowler filed a separate “Petition for Possession, Preliminary and Permanent

Injunction and Damages.” In that suit, Fowler claimed a disturbance in corporeal

possession as the owner of five contiguous tracts of land located in Rapides Parish

and including the thirty-two foot strip of land in question.

The two suits were consolidated by the district court as set forth in the

petition. Thereafter, the Perkins filed an amended petition asserting they were

“owners” of the property and further prayed for relief “declaring petitioner to be

the exclusive owner of all of the land enclosed by the boundaries set forth on

the Phillips survey and in accordance with petitioners recorded title.”

On December 5, 2016, Fowler filed a Motion for Summary Judgment,

contending that there was no disputed material facts that Perkins converted his

possessory action to a petitory action and therefore, pursuant to La.Code Civ.P. art.

3567, judicially confessed Fowler’s possession of the disputed property. Perkins

filed an opposition to Fowler’s motion for summary judgment, maintaining the

original possessory action was converted into a declaratory action that did not

confess possession in the adverse party.

The parties each introduced surveys that were conflicting as to who owned

the thirty-two foot strip of land, as well as memoranda in support of their

respective positions on whether summary judgment was appropriate. After a

hearing on the motion, the trial court rendered judgment in favor of Fowler as to

the thirty-two foot strip of land. No reasons for judgment were issued.

Perkins has appealed the judgment of the trial court, asserting the following

assignments of error:

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1. The trial court erred as a matter of law in finding that Perkins
converted his possessory action to a petitory action.

2. The trial court erred in finding there were no questions of material fact
as to the thirty-two foot strip of land.

ANALYSIS

When an appellate court reviews the grant of a motion for summary

judgment, it applies the de novo standard of review, “using the same criteria that

govern the trial court's consideration of whether summary judgment is

appropriate.” Gray v. Am. Nat. Prop. & Cas. Co., 07-1670, p. 6 (La. 2/26/08), 977

So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-

1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638). The motion for summary judgment

shall be granted if the pleadings, depositions, answers to interrogatories,

admissions, and affidavits, if any, show that there is no genuine issue of material

fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P.

art. 966(A)(3).

The burden of proof is on the mover, unless that party would not bear the

burden of proof at trial. La.Code Civ.P. art. 966(D)(1). The mover need only

show “an absence of factual support for one or more elements essential to the

adverse party's claim.” Id. The burden then shifts to the adverse party who must

demonstrate that he will in fact meet his evidentiary burden at trial. Id.

In his first assignment of error, the Perkins claim the trial court erred as a

matter of law in finding that they converted the possessory action into a petitory

action, thus judicially confessing possession of the disputed property to Fowler, the

adverse party.

A possessory action is an action by the possessor of immovable property to

maintain or regain possession of that property following a disturbance or an

eviction of his or her possession. La.Code Civ.P. art. 3655. A petitory action is an

action by a person claiming ownership of immovable property that is currently in
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the possession of another, who also claims ownership. La.Code Civ.P. art. 3651.

Importantly, in order for an action to be classified as petitory, the plaintiff would

have to be claiming both ownership and lack of possession. Louisiana Code of

Civil Procedure Article 3657 details the interrelation between possessory and

petitory actions, and reads as follows:

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.

If, before executory judgment in a possessory action, the
defendant therein institutes a petitory action in a separate suit against
the plaintiff in the possessory action, the plaintiff in the petitory action
judicially confesses the possession of the defendant therein.

The statute provides when both a possessory action and a petitory action are

asserted in the same suit or pled in the alternative, the possessory action is waived.

As this court noted in Blaise v. Smith, 01-1512, p. 3 (La.App. 3 Cir. 3/6/02), 809

So.2d 1253, 1255, “[u]nder La.Code Civ.P. art. 3651, a petitory action is one

brought by a person who claims ownership of immovable property--when he is not

in possession of the property himself--against another person who is in possession

of the property or who claims ownership of the property adversely, in order to

obtain a judgment to recognize his ownership.” (Emphasis added.) In this case,

we find the Perkins amended petition was not a petitory action, as they never

asserted they lacked possession in the property and, in fact, maintained they have

had continuous possession over the disputed area since 1963.

Further, as the Perkins point out, Louisiana law has recognized that a

plaintiff in possession of the property can bring an action for declaratory judgment,

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thereby raising issues of possession and ownership in the same action. Lafourche

Realty Co., Inc. v. Duard Eymard Co., Inc., 93-1278 (La.App. 1 Cir. 6/24/94), 638

So.2d 1138, writ denied, 94-1991 (La. 11/11/94), 644 So.2d 390; Liner v.

Terrebonne Parish Sch. Bd., 519 So.2d 777 (La.App. 1 Cir.1987), writ denied, 521

So.2d 1173 (La.1988), cert. denied, 488 U.S. 827, 109 S.Ct. 79 (1988). The

Perkins’ amended petition was titled “First Amended Petition for Judicial Fixing of

Boundary, Declaratory Judgment, Preliminary and Permanent Injunction, Trespass

and Damages.” We agree with the Perkins’ argument that this petition changed the

action from one of possession to one for Declaratory Judgment, seeking a

judgment from the court declaring that they can maintain the possession that they

currently enjoy without disturbance.

Accordingly, we find the trial court erred in finding the Perkins’ amended

petition converted their initial possessory action into a petitory action, thus

judicially confessing ownership of the disputed property to Fowler. Without that

judicial confession, which by law would constitute full proof against the party that

made it, the record clearly contains material issues of fact as to possession of the

thirty-two foot strip of land. The record contains conflicting surveys with different

boundary lines, as well as disputes over Fowler’s actual possession of the disputed

area. Therefore, summary judgment was inappropriate in this matter, and the

judgment must be reversed.

DECREE

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

motion for summary judgment is reversed. The matter is remanded to the trial

court for further proceedings consistent with this opinion. All costs of this appeal

are assessed against appellees, Andrew Fowler and the Unopened Succession of

Blanch Deramus Fowler.

REVERSED AND REMANDED.

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