Charles F. Boagni, III. Sandra Clark Boagni Trust v. Elton Sam, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-129

CHARLES F. BOAGNI, III AND
SANDRA CLARK BOAGNI TRUST

VERSUS

ELTON SAM, JR.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 22-C-10332-D
HONORABLE D. JASON MECHE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Guy E.
Bradberry, Judges.

AFFIRMED.

Ogden L. Pitre
Pitre Law Firm, LLC
511 E. Landry Street
Opelousas, LA 70570
(337) 942-1900
COUNSEL FOR DEFENDANT-APPELLANT:
Elton Sam, Jr.
William Simmons Sandoz
Attorney at Law
P.O. Box 579
Opelousas, LA 70571-0579
(337) 942-8956
COUNSEL FOR PLAINTIFFS-APPELLEES:
Charles F. Boagni, III
Sandra Clark Boagni Trust

PICKETT, Chief Judge.

In this possessory action, Elton Sam, Jr., appeals the judgment of the trial

court granting the plaintiff, Charles Boagni, III, a judgment of possession.

FACTS

On March 11, 2022, Mr. Boagni, individually and as the trustee of the

Sandra Clark Boagni Trust, filed a Petition for Possessory Action against Mr. Sam.

Mr. Boagni alleged that he had continuous possession of a certain 100-acre tract of

land in St. Landry Parish for over a year. He further alleged that Mr. Sam

disturbed his quiet possession on December 30, 2021, in two ways. Mr. Sam

created a disturbance in fact by erecting a posted sign on the property and he

created a disturbance in law by recording a Plat of Survey in the public records

claiming ownership of a 20.738-acre tract, which lies entirely within the bounds of

Mr. Boagni’s property. Mr. Boagni acknowledged that the Plat of Survey 1 was

recorded on September 15, 2020, but he only discovered the fact of the recordation

on November 15, 2021. He alleged that the recordation, which identifies the

20.738-acre tract as owned by someone other than Mr. Boagni, disturbed his

possession and caused the tax assessor to assess taxes on the property to members

of Mr. Sam’s family, creating a double assessment of that tract. Mr. Boagni’s

prayer for relief sought a judgment recognizing him as the possessor of the

property in question and ordering Mr. Sam to assert an adverse claim of ownership

to the property be precluded from thereafter asserting ownership. Mr. Boagni also

sought to have Mr. Sam remove any indication of his possession from the property

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The document was titled “Plat of Survey for the Estate of Julien Edwards et al showing a
20.738 acre tract of land situated in Section 67, Range 4 East, St. Landry Parish, Louisiana.”

and to have the assessor ordered to cancel the double assessment. Finally, Mr.

Boagni sought reasonable damages for the disturbance of his possession.

Mr. Sam answered, denying the allegations of the petition.

On March 14, 2023, Mr. Boagni filed a Motion to Convert Proceeding to a

Petitory Action and Authorize Amended Petition. Mr. Boagni alleged that at a

status conference, Mr. Sam indicated that one of his relatives would be asserting an

ownership interest in the property at issue, and, therefore, Mr. Boagni desired to

convert the proceeding to a petitory action. The trial court did not sign the

attached order and deferred a ruling pending another status conference. Mr.

Boagni filed an Amended Motion to Convert Proceeding to a Petitory Action and

Authorize Amended Petition on June 5, 2023. The trial court set a hearing on the

amended motion on July 17, 2023. Before the hearing, Mr. Sam filed a

memorandum opposing the amended motion to convert to a petitory action, stating

that Mr. Sam has never claimed ownership of the disputed property himself. Mr.

Sam also cited La.Code Civ.P. art. 3657(A), which states:

The plaintiff shall not cumulate the possessory action with
either the petitory action or a declaratory judgment action to
determine ownership. If the plaintiff does so, the possessory action
does not abate, but the defendant may object to the cumulation by
asserting a dilatory exception. If, before executory judgment in the
possessory action, the plaintiff institutes the petitory action or a
declaratory judgment action in a separate suit, the possessory action
abates.

The trial court denied the amended motion to convert to a petitory action at the

hearing on July 17, 2023.

Prior to trial, Mr. Boagni filed a pleading entitled Peremptory Exceptions.

Therein, he pled that because he has had possession of the property for over 40

years, he gained ownership of the property by acquisitive prescription. Mr.

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Boagni’s pleading clarifies that “[t]he effect of this exception does not deal with

title, but is filed to override any claim of ownership by deed filed on behalf of any

third party.” Mr. Boagni also included an exception of no cause of action, alleging

that Mr. Sam has no ownership interest in the property at issue. Finally, Mr.

Boagni brought an exception of no right of action, alleging that Mr. Sam had no

authority to act on behalf of any party who might have an ownership interest in the

property. Mr. Sam opposed these peremptory exceptions, arguing that a

peremptory exception is an improper procedural tool for a plaintiff to file against a

defendant who has not filed a reconventional demand. The trial court ordered the

exceptions to be heard at the trial on the merits.

The trial in this matter took place on October 31, 2023. At the conclusion of

the trial, the court took the matter under advisement. The trial court issued reasons

for ruling on November 16, 2023. The trial court reached the following

conclusions:

1. Boagni's Peremptory Exceptions of Prescription, No Cause of
Action, and No Right of Action are overruled.

2. That Boagni had possession of the 100 acres, more or less, at the
time of the disturbance, that the possession was quiet and
uninterrupted for more than one (1) year prior to the disturbance,
and the suit was initiated timely. Thus, Boagni is entitled to a
judgment of possession.

3. That Boagni failed to introduce any evidence of damages as prayed
for in his Petition for Possession. La. C.C.P. art. 3662(3). Thus,
the Court denies an award of damages.

The trial court signed a judgment in conformity with its written reasons on

December 27, 2023, ordering the following:

A) There be Judgment in favor of CHARLES F. BOAGNI, III AND
SANDRA CLARK BOAGNI, TRUST, granting their Petition for
Possession and acknowledging their possession of the 100 acres, more
or less, being more particularly described as:

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A certain tract or parcel of land, together with all buildings and
improvements thereon, situated in Section 67, Township Four
South (T-4-S), Range Four East (R-4-E), St. Landry Parish,
Louisiana, containing ONE HUNDRED (100) ACRES, MORE
OR LESS, and being bounded, now or formerly, as follows:
North by Christoval Joubert and Alcide Joubert; South by
Alcide Joubert, Thelma Pucheu, and Christoval Joubert; East by
Bayou Cocoderie [sic] and Vincent Mosely; and West by the
centerline of the road, or property of Elzena Joubert Frank,
Woodrow Joubert, Alfred Thomas and Alcide Joubert.

The above described property includes:

20.738 ac N Boagni S Lots 6-8 E. Bayou Cocodrie W40' R/W
True Vine Road in Sec. #67, T-4-S, R-4-E

B) The St. Landry Parish Assessor remove the name of Mrs. Julien
Edwards c/o Elton Sam, 207 Gintilly Road, Opelousas, LA 70570-
0000 on parcel #0500528500 with notice number 2022-35584 being
more particularly described as:

20.738 ac N Boagni S Lots 6-8 E. Bayou Cocodrie W40' R/W
True Vine Road in Sec. #67, T-4-S, R-4-E

C) The St. Landry Parish Clerk of Court erase, pursuant to this judgment,
as well as make a notation on the Plat of Survey recorded under
Original Act #1204977 of the records of St. Landry Parish, Louisiana,
that this Plat of Survey is cancelled pursuant to judgment.

D) Defendant, Elton Sam, shall not trespass on the above described
property.

ASSIGNMENTS OF ERROR

In his brief to this court, Mr. Sam asserts four assignments of error:

1. The trial court erred in finding that Appellees were in
possession of the disputed 20.738[-]acre tract, which it ruled was a
part of a larger 100 acres of land.

2. The trial court erred in finding that Appellees and their
ancestors in title had such possession of the disputed 20.738[-]acre
tract quietly and without interruption for more than a year
immediately prior to the disturbance.

3. The trial court erred in failing to consider the legal implication
that Appellees were co-owners of the disputed 20.738[-]acre tract as
well as the 100 acres of land.

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4. The trial court erred in not ordering in its judgment that
Appellant must assert his adverse claim of ownership of the
immovable property or real right therein in a petitory action to be filed
within a delay to be fixed by the court not to exceed sixty days after
the date the judgment becomes executory, or be precluded thereafter
from asserting the ownership thereof, as Appellees prayed for in their
original petition.

DISCUSSION

Louisiana Code of Civil Procedure Article 3655 sets forth the purpose of a

possessory action:

The possessory action is one brought by the possessor or
precarious 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.

Louisiana Code of Civil Procedure Article 3658 sets forth the elements of a

possessory action:

To maintain the possessory action the plaintiff shall allege and
prove all of the following:

(1) The plaintiff had possession or precarious possession of the
immovable property or real right therein at the time the disturbance
occurred.

(2) The plaintiff and his ancestors in title, or the person for whom the
plaintiff possesses precariously and that person’s 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 Article
3659.

(4) The possessory action was instituted within a year of the
disturbance.

Louisiana Code of Civil Procedure Article 3659 defines a disturbance in fact

or in law:

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A. Disturbances of possession that give rise to the possessory action
are of two kinds: disturbance in fact and disturbance in law.

B. A disturbance in fact is an eviction, or any other physical act that
prevents the possessor of immovable property or of a real right
therein from enjoying his possession quietly, or that throws any
obstacle in the way of that enjoyment.

C. A disturbance in law is the occurrence or existence of any of the
following adversely to the possessor of immovable property or a
real right therein:

(1) The execution, recordation, or registry, after the possessor
or his ancestors in title acquired the right to possess, of any
instrument that asserts or implies a right of ownership or right
to the possession of the immovable property or a real right
therein.

(2) The continuing existence of record of any instrument that
asserts or implies a right of ownership or right to the possession
of the immovable property or a real right therein, unless the
instrument was recorded before the possessor and his ancestors
in title commenced possession.

(3) Any other claim or pretension of ownership or right to the
possession of the immovable property or a real right therein,
whether written or oral, except when asserted in an action or
proceeding.

Possession for the purpose of a possessory action is defined by La.Code

Civ.P. art. 3660(A), which states:

A person is in possession of immovable property or of a real right
therein, within the intendment of the articles of this Chapter, when the
person has the corporeal possession thereof, or civil possession
thereof preceded by corporeal possession by him or his ancestors in
title, and possesses for himself, whether in good or bad faith, or even
as a usurper.

The burden of proof in a possessory action lies upon the plaintiff to establish the

essential elements thereof. La.Code Civ.P. art. 3658; Chaney v. State Mineral Bd.,

444 So.2d 105 (La.1983). Whether the acts of the plaintiff constitute possession is

a factual determination of the trial court which we will not disturb on appeal unless

it is clearly wrong. Romar v. Est. of Gay, 454 So.2d 431 (La.App. 3 Cir. 1984).

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At the trial, Mr. Sam testified that he did not own the property or have

possession of the property. He testified that he was acting on behalf of his mother

and her siblings, who trace their ownership of the disputed property to an 1896

deed. His mother and her siblings trace their ownership back to Mrs. Julien

Edwards, Mr. Sam’s great-great-grandmother. Mr. Sam acknowledged that Mr.

and Mrs. Edwards’ successions were opened in 1948 and 1950, but no succession

representative had ever been appointed.

Mr. Sam testified that his family members had been paying taxes on the

property since Mrs. Edwards died. They constructed no buildings or fences on the

property. Mr. Sam knew that Charles Ray Jones rebuilt the fence on the property

when he leased the land from Mr. Boagni. Mr. Sam testified that he hunted and

fished on the property at issue since he was seven-years old, or for forty-seven

years.

Mr. Sam hired Robert Wolfe to survey the property that belonged to his

great-grandmother. He had the survey recorded in the clerk’s office and brought

the survey to the assessor’s office to review. Mr. Sam identified thirty-eight pages

of tax records from 1955 through 2022. From 1955 through 1998, the description

of the property was “11 AC N LAZARO S COMEAU E LAZARO W SOILEAU.”

Beginning in 2000 through 2018, the description of the property was “11 AC N &

E LAZARO S COMEAU W SOILEAU IN SEC 43 T-4S R-3E & SEC 67 T-4S R-

4E.” In 2019, the same parcel number was identified on the tax receipt as “25

ARPENTS N & E LAZARO S COMEAU W SOILEAU IN SEC 43 T-4S R-3E &

SEC 67 T-4S R-4E.” In 2022, the assessor changed the description of the same

parcel number, identifying it as “20.738 AC N BOAGNI S LOTS 6-10 E BAYOU

COCODRIE W 40ʹ R/W TRUE VINE RD IN SEC 67 T-4S R-4E.” This

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description matched the property identified as belonging to Julien Edwards on the

survey done by Mr. Wolfe.

Mr. Sam also testified that one of his family members had timber cut from

the property “probably about thirty (30), thirty-five (35) years ago.” He also

testified that his grandmother received oil and gas royalty payments on the

property, and he identified Oil, Gas, and Mineral Leases executed by several

lessors, including his grandmother, Selina Sims Johnson, from 1977 and 1978,

with the following description of the property:

Township 4 South, Range 4 East; Section 67:

25 arpents, more or less, bounded now or formerly:

Northeast by Bayou Cocodrie or Harry V. Mosely;
Southeast by Alcide Joubert, Mary Lynn Pucheau and Christoval
Joubert;
Southwest by Alcide Joubert and Fremont Joubert;
Northwest by Fremont Joubert.

Being the same land deeded by Alexander Vanright to Louis Vanright
and Julien Edward by instrument dated 1-27-1896 and recorded in
COB J-3 at pages 86 and 87, reference to which deed is here made for
all purposes.

Mr. Sam also identified a check written to his grandmother from the lessees in

1988. Finally, Mr. Sam testified that he remembered an old fence line that ran

along the north boundary of the property, but it was no longer a continuous fence

line. He also testified that he had seen Mr. Jones’ cattle on the disputed property.

Mr. Jones testified that, at the time of trial, he had leased property from Mr.

Boagni for forty-two years to run his cows. When the written lease expired, he

continued to pay yearly to keep his cattle. Mr. Jones testified that he lived in the

area all his life. The property he leased from Mr. Boagni was already fenced when

he began leasing it, and it had been fenced since he was a little boy. He indicated

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that he had repaired the fence along Vidrine Road to protect his cattle. During his

testimony, Mr. Jones marked in yellow highlighter the fence line on the survey

prepared by Mr. Wolfe. The entirety of the 20.738 acres is included in the area

that Mr. Jones leased from Mr. Boagni. Mr. Boagni ran his cattle on the property

for forty-two years.

Mr. Jones also testified that he remembered someone cutting timber from a

narrow strip of land in the front of the property “a long time ago.” He explained

that that is when he learned that “one little strip of land belonged to someone else

besides Freemont Joubert, [who] owned the property before Mr. Boagni and

Fakouri bought it.”

Karl Reiners testified that he was given access to the property by Mr. Boagni

five years ago to hunt. His wife works for Mr. Boagni. He regularly goes to the

property to walk, hunt, and shoot by himself or with his wife. Mr. Boagni signed

an affidavit giving him permission to use the land. Mr. Reiners noticed no new

structures or fences on the land in the last five years. He did, at some point,

remove posted signs hung by a neighbor, Mr. Vidrine.

Mr. Reiners testified that he posted signs on the property, and Mr. Sam

called him to inquire about the signs. Mr. Sam explained his family connection to

the land and Mr. Reiners told Mr. Boagni about his conversation with Mr. Sam.

Mr. Boagni testified that he owned the 100-acre property for forty-two years.

When he purchased it with Mr. Fakouri, he initially intended to build a camp on

the property, and he inspected it. Soon thereafter, he leased the entire property to

Mr. Jones to graze his cattle. He never charged Mr. Reiners to hunt on the

property.

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Mr. Boagni testified that he filed this lawsuit when the assessor’s office used

the survey created by Mr. Wolfe to assess taxes on the twenty-five arpent tract to

Mr. Sam’s family. He admitted that the original abstract from when he purchased

the property may not have gone all the way back to 1895.

Mr. Wolfe, the surveyor hired by Mr. Sam, testified about the information he

discovered in his research. He explained that the 2016 tax receipt described an

eleven-acre tract of land in Sections 43 and 67, but those sections are not adjacent.

In 1883, Onezenne Fontenot sold a twenty-five arpent tract of land to Alexander

Vanwright. Alexander Vanwright sold the same tract of land to Julien Edwards

and Louis Vanwright in 1896. Louis Vanwright later sold his one-half undivided

interest in the land to a Mr. Joubert, and the interest in that land is in Mr. Boagni’s

chain of title. Mr. Wolfe further testified that he sent the information that he

gathered in completing his survey to the assessor at the assessor’s request.

Finally, Mr. Sam called Russell Myers to testify. He knew Mr. Sam’s father

and hunted the property with Mr. Sam. He testified that he understood that the

land belonged to Mr. Sam’s family. On cross-examination, Mr. Myers testified

that he was unaware of any proof of Mr. Sam’s ownership. He also stated that he

saw cattle on the property.

The evidence shows that Mr. Boagni clearly proved actual possession when

he purchased the property over forty years ago and continuous civil possession

through his lessee, Mr. Jones, for the same amount of time. The trial court’s

findings on these issues are not manifestly erroneous. Mr. Sam does not assign as

error that this possessory action was filed untimely. The only issue is whether Mr.

Boagni had possession for one year prior to the institution of this action and

whether that possession benefits Mr. Sam.

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Based on the abstracts presented, Mr. Boagni owns an undivided interest in

the 20.738-acre tract. Mr. Sam’s ancestors on his mother’s side own an undivided

interest in the 20.738-acre tract. Importantly, Mr. Sam himself owns no interest in

the land, and he has offered no evidence that he has the authority to act on behalf

of any of his family members. Mr. Sam, therefore, is not a co-owner of an

undivided interest. Thus, his argument that Mr. Boagni’s possession is presumed

to be for the benefit of his co-owners, which is legally correct, does not extend to

Mr. Sam, who is not one of those co-owners.

The filing of the survey by Mr. Wolfe is clearly a disturbance in law, as it

asserts a right of ownership in the heirs of Julien Edwards. Mr. Sam argues that

the Julien Edwards heirs have paid taxes or executed mineral leases or sold timber

on the property and that those acts of civil possession should be considered as acts

of Mr. Sam’s possession. Because Mr. Sam does not have title to the property, Mr.

Sam must show that he himself has actual possession of the property in order to

defeat the possessory action filed by Mr. Boagni. The trial court found that Mr.

Sam’s acts of hunting and fishing on the property were not sufficient acts of actual

possession within enclosures. That finding is not manifestly erroneous.

Mr. Sam cites Norton v. Addie, 337 So.2d 432 (La.1976), as support for his

claim that his family had constructive possession of the property by paying taxes,

leasing the mineral rights, and cutting timber on the 20.738-acre tract. In Norton,

Mr. Norton’s father built a fence in 1904 on the boundary of the property he shared

with Mr. Addie. The fence extended onto Mr. Addie’s land. Mr. Norton’s father,

and then Mr. Norton, maintained the fence and leased the land to graze cattle for

many years. Reversing the lower courts, the supreme court found that Mr. Addie’s

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constructive possession by means of title to the property was lost by Mr. Norton’s

corporeal detention of the property.

Mr. Sam’s argument is unpersuasive for two reasons. First, Mr. Sam is

neither the owner nor possessor of the land. Second, Mr. Sam argues that his

family’s situation is akin to Mr. Norton’s situation. In fact, Mr. Boagni proved

actual corporeal possession of the property for more than a year at the time of

disturbance, which makes his position more akin to Mr. Norton’s position, while

the owners of the undivided interest in the 20.738-acre tract who claim

constructive possession are like Mr. Addie, who the supreme court found was the

losing party in Norton.

Mr. Sam’s first three assignments of error lack merit.

Finally, Mr. Sam argues that the trial court erred by failing to give Mr. Sam

sixty days to assert an adverse claim of ownership. La.Code Civ.P. art. 3662. Mr.

Boagni did pray for such relief in his petition, but the judgment prepared by Mr.

Boagni’s counsel and signed by the trial court did not include that relief. Inasmuch

as Mr. Sam admitted that he did not own the property, allowing Mr. Sam sixty

days to assert an ownership interest would be an exercise in futility. We find no

error in the judgment of the trial court.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to Mr. Sam.

AFFIRMED.

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