author: LEON A. CANNIZZARO, JR., Judge.

text:
    Jim P. WOOD and Esther T. Wood v. Johnny BECNEL and (ABC) Insurance Company.
    No. 2002-CA-1730.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2003.
    Kevin D. Conner, Belle Chasse, LA, for Plaintiffs/Appellants.
    James S. Thompson, Chauntis T. Jenkins, Porteous, Hainkel & Johnson, L.L.P., New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, ■ Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

This case involves an appeal from a trial court judgment granting summary judgment in favor of the defendants and dismissing the plaintiffs’ claims in their entirety with prejudice. The plaintiffs are appealing the trial court’s judgment. For the reasons that follow, the judgment of the trial court is reversed, and this case is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On September 1, 2000, Jim P. Wood, and his wife, Esther T. Wood, (the “Woods”) filed suit against their next door neighbor, Johnny Becnel, and his insurer, Louisiana Farm Bureau Mutual Insurance Company. The Woods alleged that Mr. Becnel had killed certain trees, including four oak trees and a sweet gum tree, located on their property. In their petition the Woods alleged that the trees had been killed by the application of a herbicide, Bromaeil, and that Mr. Becnel or persons under his direct control as employees or agents had intentionally or negligently applied Bromaeil to the trees.

liJn their petition the Woods also alleged that they had observed Mr. Becnel spraying chemicals on his property and that they had observed grass dying along the fence line between their property and Mr. Becnel’s property. In the spring of 1998, the Woods noticed that one of their oak trees was losing its new leaves almost immediately after the leaves had appeared on the tree. In the spring of 1999, the Woods also noticed that five of their trees were shedding their leaves as soon as they appeared on the trees. Additionally, after they returned from their summer vacation in 1999, they noticed that most of the leaves that had been on these trees were gone.

The Woods contacted Adrian S. Juttner, the owner of Adrian’s Tree Service, who testified in his deposition that he is an arboriculture expert with undergraduate and graduate degrees in forestry and forest management. Mr. Juttner examined the Woods’ trees and found that the trees were experiencing dieback symptoms in their crowns. Mr. Juttner thought that chemical damage had caused the dieback symptoms, and he testified in his deposition that “this looked to me like the act of a vandal”.

The Woods then requested that the Louisiana Department of Agriculture and Forestry (the “Department”) take soil samples from their property to determine whether a chemical agent had been applied to the trees that were dying. On September 10, 1999, an inspector from the Department took soil samples from around five of the dying trees. The samples were analyzed, and in a letter from the Department dated October 29, 1999, the Woods were advised of the results of the testing done by the Department. All of the soil samples had shown the presence of 13Bromacil, a chemical found in the general herbicide HyvarX, which is not available to the general public.

On November 5, 1999, the Department collected additional soil samples from the Woods’ property for testing. In a letter dated December 3, 1999, the Woods were advised that again, Bromacil had been found in all of the samples tested. In their petition the Woods alleged that Mr. Becnel had created a hostile living environment during the time that he had been their next door neighbor. Examples of how Mr. Becnel had created the hostile environment were listed in the petition. Included in the list were conflicts arising because Mr. Becnel put garbage on the Woods’ property despite their objection, let his dog foul their yard, took pecans from their property despite their objections, and placed a water line on their property. Additionally, Mr. Becnel hit golf balls toward the Woods’ property from a driving range on his property, and Mr. Becnel refused to allow water from a broken water line to be turned off during the installation of a fence on the Woods’ property. Mr. Becnel also hit an orange tree belonging to the Woods with a disc behind his mower and blamed the incident on the Woods’ grandson.

In the depositions taken in this case, Mr. Becnel testified that he has been in the citrus industry for twenty-seven years and that he is certified by the State of Louisiana to obtain and apply commercial chemicals used in the industry. Bromacil is such a chemical. Mr. Juttner, the arbori-culture expert, agreed in his deposition that any Bromacil affecting the Woods’ trees would have been applied by someone and would not have been due to natural causes. In light of these facts and the fact that there has been a long history of difficulties between the Woods and Mr. Becnel, the Woods are convinced that Mr. Becnel killed their trees. They |4allege that he is the only person who had both the motive to kill their trees and the licenses and expertise necessary to obtain Bromacil and apply it to the trees.

On April 8, 2002, Mr. Becnel and his insurer filed a Motion for Summary Judgment, which was heard on May 7, 2002. A Judgment on Motion for Summary Judgment was rendered on May 14, 2002, in favor of Mr. Becnel and his insurer. The Woods are appealing.

APPLICABLE LAW

Standard of Review

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 and 99-2257 (La.2/29/00), 755 So.2d 226, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Id. at p. 7 and at 230-31.

See also Randall v. Chalmette Medical Center, Inc., 2001-0871 (La.App. 4 Cir. 5/22/02), 819 So.2d 1129; Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, writ denied, 2002-0509 (La.4/26/02), 814 So.2d 558.

^Circumstantial Evidence

The basis on which the trial court granted the Motion for Summary Judgment was a lack of direct evidence and insufficient circumstantial evidence to prove that Mr. Becnel poisoned the Woods’ trees. While there is no direct evidence that Mr. Becnel poisoned the trees, there is, however, sufficient circumstantial evidence for this case to be tried.

The Louisiana Supreme Court has recognized that circumstantial evidence may be used to prove a plaintiffs case. In Lacey v. Louisiana Coca-Cola Bottling Co., 452 So.2d 162 (La.1984), the Supreme Court discussed the use of circumstantial evidence as follows:

In a civil case, the plaintiffs burden is to prove her case by a preponderance of the evidence. This burden may be met by direct or circumstantial evidence. If, as in this case, circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Id. at 164 (emphasis in original).

See also Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072 (quoting the language in Lacey but finding that the circumstantial evidence before it went against the clear weight of direct evidence).

The Supreme Court has also determined that proof by circumstantial evidence is based on the same standard as proof by direct evidence. In Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971), the Supreme Court stated that “proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.” 257 La. at 1008, 245 So.2d at 155.

|fiThe Supreme Court has also recognized that circumstantial evidence can be used to defeat a motion for summary judg-merit. In Lyons v. Airdyne Lafayette, Inc., 563 So.2d 260 (La.1990), the Supreme Court stated in a per curiam decision that “[t]here is circumstantial evidence from which one could reasonably infer that the act was intentional, and weighing of factual evidence is inappropriate on a motion for summary judgment”. Id. See also Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 and 99-2257, p. 18 (La.2/29/00), 755 So.2d 226 at 236-37.

The Louisiana courts of appeal have followed the Supreme Court’s lead in allowing circumstantial evidence to be used to defeat motions for summary judgment. In Sea Robin Pipeline Co. v. New Medico Head Clinic Facility, 2000-0595 (La.App. 1 Cir. 6/22/01), 809 So.2d 176, the Court found that “[cjircumstantial evidence abounds ... leaving this issue ripe for consideration by a jury”. Id. at p. 9 and at 182.

In McNamara v. American Liberty Insurance Co., 99-175 (La.App. 3 Cir. 10/13/99), 745 So.2d 704, the Court found that “circumstantial evidence must exclude, with a fair amount of certainty, only reasonable and not merely possible hypotheses”. Id. at p. 6 and at 707. In McNamara, the Court further stated:

The question of whether one of the proposed alternative methods of entry presents a sufficiently reasonable hypothesis and the question of whether the circumstantial evidence did not exclude these methods with a fair amount of certainty are factual ones, which are not appropriate for summary judgment. Id. at p. 8 and at 708.

This Court has also recognized that circumstantial evidence may be sufficient to defeat a motion for summary judgment. In Florane v. Pendleton Memorial Methodist Hospital, 2002-0165 (La.App. 4 Cir. 5/29/02), 822 So.2d 642, this Court found that circumstantial evidence may establish the existence of a genuine issue of material fact such that summary judgment is precluded.

DISCUSSION

In the Reasons for Judgment on Motion for Summary Judgment, dated May 14, 2002, the trial court stated that “in order to resolve the issue in the Plaintiffs’ favor the evidence submitted would have to exclude any other reasonable hypotheses with a fair amount of certainty” and then determined that “in the absence of any direct evidence or stronger circumstantial evidence of any involvement on Becnel’s part in the destruction of these trees there is no reason for this litigation to proceed further”. This Court disagrees.

Eyewitness or other direct testimony is not required for the Woods to prove their case. They have the right to rely on circumstantial evidence related to previous actions by Mr. Becnel to try to demonstrate at trial by a preponderance of the evidence that he did, in fact, poison their trees.

In Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, the Court stated:

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Id. at p. 3 and at 103.

In the instant case, the Woods are opposing summary judgment. Because the factual inferences reasonably drawn from the circumstantial evidence presented by the Woods are to be construed in their favor at this juncture in the proceedings, summary judgment should not be granted.

The circumstantial evidence submitted by the Woods in opposition to the motion for summary judgment filed by Mr. Becnel and his insurer is sufficient to |screate a material issue of fact that precludes granting summary judgment. The material fact that is at issue is whether Mr. Becnel poisoned the Woods’ trees. A jury or other trier of fact should determine whether the circumstantial evidence excludes with a fair, but not absolute, amount of certainty all reasonable hypotheses for the destruction of the trees other than the hypothesis that Mr. Becnel poisoned them.

In Coto v. J. Ray McDermott, 99-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, this Court stated that “[i]n determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence”. Id. at p. 4 and at 880. This Court further stated in the Coto case that “[a] summary judgment is rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith”. Id. (citing Penalber v. Blount, 550 So.2d 577, 583 (La.1989)). Also, as the Court observed in Carter v. BRMAP, 591 So.2d 1184, 1190 (La.App. 1 Cir.1992), summary judgment permits a party to use ex parte evidence to avoid a trial on the merits and thus avoid cross-examination to test the trustworthiness of the testimony. Mr. Becnel’s deposition testimony denying his involvement in the poisoning of the Woods’ trees is insufficient grounds for summary judgment. The factual determinations to be made in this case are based in part on motive, malice, and knowledge, and Mr. Becnel’s testimony should be subject to cross-examination before a determination as to the credibility of his testimony is made.

In addition to the allegations of hostility by Mr. Becnel against the Woods contained in the petition in the instant case, deposition testimony elicited additional details regarding the animosity between the neighbors. For example, Mr. Wood testified that Mr. Becnel shot a gun near the Woods’ home and that Mr. Becnel | ^admitted to Mr. Wood that Mr. Becnel had cut down an apple tree belonging to the Woods. It is for a jury or other trier of fact to observe the witnesses and the parties as they give their testimony and are cross-examined at trial to determine the credibility of the testimony. Whether Mr. Becnel poisoned the Woods trees is a question of fact a jury or other trier of fact should decide.

The circumstantial evidence submitted by the Woods does not exclude all possible hypotheses for the damage to their trees other than actions taken by Mr. Becnel. They have, however, submitted sufficient evidence that their trees were, in fact, poisoned, that an arboriculture expert thought the poisoning was the result of vandalism, that as a result of his occupation, Mr. Becnel, a professional farmer, had the ability to obtain the chemical that poisoned the trees, and that the chemical was not available to the general public. Further, there is evidence that Mr. Becnel has in the past taken actions against the Woods that could be construed as the acts of a vandal or otherwise malicious. A jury or other trier of fact should determine from the evidence presented at trial whether a preponderance of that evidence shows that Mr. Becnel poisoned the Woods’ trees.

CONCLUSION

Based on the foregoing discussion, we reverse the trial court’s judgment granting summary judgment in this case. The case is remanded for the trial court to conduct a trial on the merits.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: |;WILLIAM H. BYRNES III, Chief Judge. MURRAY, J.,

license: Public Domain

text:
    Ann Burks PRATT v. Ellis WELLS.
    No. 2002-CA-1032.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2003.

      Jane Ettinger Booth, Booth & Booth, APLC, New Orleans, LA, for Plaintrff/Ap-pellee Ann Burke Pratt.
    Brett A. Bonin, New Orleans, LA, for Appellee Rachel Elisabeth Burke.
    Lizette A. Miller, Law Office of Lizette Auxiliadora Miller, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., and Judge MICHEL E. KIRBY).
   |;WILLIAM H. BYRNES III, Chief Judge.

Defendant-appellant, Ellis Wells appeals a judgment dated January 28, 2002, rendered pursuant to a hearing on September 24, 2001, ordering him to $1,302.00 per month child support retroactive to May 10, 2001, to plaintiff-appellee, Ann Burks Pratt, for the support of their minor child, Rachel Burks, along with $5,000.00 for attorney fees. The judgment also ordered that Mr. Wells pay this support retroactive to the May 10, 2001 date Ms. Pratt filed the support petition; that Ms. Pratt maintain health insurance for the child; that the extraordinary medical expenses be allocated 65% to Mr. Wells and 35% to Ms. Pratt; that certain past medical expenses be likewise allocated in the same way; that Mr. Wells pay the costs of the Reliagene Paternity Test. Finally the judgment included a restraining order and an order permitting Ms. Pratt to proffer evidence regarding her monthly expenses and monthly childcare expenses for her other three minor children who are not a party to this lawsuit.

The appellant assigns as error the finding by the trial court that he had a gross income of $136,107.54 in 2000. He complains that the $136,107.54 figure improperly includes overtime and $12,433.00 is his wife, Patricia Wells’s salary. Therefore, he contends that his compensation should be figured at $116,000.00.

L.Mr. Wells testified that his W-2 from the Department of Veterans’ Affairs showed compensation of $127,026.63 for the year 2000. He testified that he had a W-2 from the State of Louisiana for the year 2000, which reflected additional compensation of $2,723.51. He also acknowledged that he received an additional $6,357.40 in compensation from the Medical Center of Louisiana. These figures total the same $137,107.54 used by the trial court.

At the conclusion of the hearing the trial judge commented in pertinent part as follows:

I did a couple of calculations of this based on and including Mr. Wells’ total income for the last year which I found to be one hundred thirty-six thousand one hundred seven fifty-four, as presented by Ms. Akehurst. And I also calculated it on his base income, which was 1 hundred and 16 thousand dollars, which did not include the overtime that he apparently made this year. I calculated Ms. Pratt’s income based on 54 thousand 77 dollars and then did calculations based upon adding it to Mr. Wells’ income, including the over time and also without the over time. The court concludes that his overtime is not a guarantee. He intimated that the program may be closing. It’s a matter of conjecture, and if it doesn’t close, a Rule to Increase might be in order. So I’m using the base income for my calculations for this award. I think that, Counsel, quite frankly, I’m not prepared to depart from the guidelines in this matter. Mr. Wells the base amount of child support you owe, sir, by my calculations is the sum of 1 thousand 3 hundred and 2 dollars a month, retroactive to the date of filing * * * * which is May 10th, 2001.
That’s just based on the base salary, not including over time. [Emphasis added.]

It is clear that at the time the judge ruled from the bench, he considered only Mr. Ellis’ base compensation of $116,000.00 when he fixed the support obligation at $1302.00 per month. However, when the written judgment was handed down it stated that the child support obligation was “based on the Court’s finding of Ellis’s ^yearly gross income of $136,107.54.” This appears to be a clerical error. Although the amount of Mr. Wells’ income as set forth in the written judgment is slightly more than $20,000.00 larger than the $116,000.00 figure used by the trial judge when he ruled from the bench, the amount of support remained the same: $1302.00 per month. This indicates that the trial court intended to use the $116,000.00 figure in the written judgment. Reinforcing this reasoning is the fact that had the trial court actually used the $136,107.54 figure, the pro rata allocated to Mr. Wells would have been greater than the 65% assigned to him by the trial court. We find no merit in this assignment of error.

The defendant complains that in spite of the fact that the plaintiffs petition for child support was filed on May 10, 2001, the trial court relied on guidelines that apply only to proceedings filed after August 15, 2001, the effective date of Act No. 1082 of 2001 establishing those guidelines under La. R.S. 9:315.19. Section 5 of Act No. 1082 provides that: “This Act applies to actions concerning child support filed after August 15, 2001.” Thus, we must agree with the defendant that the support schedule found in former La. R.S. 9:315.14 applies to this case rather than La. R.S. 9:315.19. The schedule found in former La. R.S. 9:315.14 topped out at a combined adjusted gross monthly income of $10,000.00.

In its support judgment, the trial court stated that:

The child support obligation is based on the Court’s finding of Ellis Well’s yearly gross income $136,107.54 and Ann Burk Pratt’s yearly gross income of $54,077.00; daycare expenses of $500.00 month; and monthly health insurance expenses of $61.70.

Thus, as the combined gross income of the parties exceeds the maximum encompassed by the support schedules, the trial court was supposed to exercise | reasonable discretion in fixing the support award. Former La. R.S. 9:315.14 B provided that:

If the combined adjusted monthly gross income is in excess of the maximum amount provided in Subsection A [$10,-000.00], then the court, in its discretion, may award child support beyond the schedule of support and allow support in accordance with the best interest of the child and the circumstances of each parent.

Mr. Wells contends that under former La. R.S. 9:315.14 the proper child support calculation (without taking into account any downward deviation in the guidelines attributable to the defendant’s excessive community obligations and his expenditures on behalf of his other children) was only $972.00. Mr. Wells’ brief demonstrates a calculation based on a combined adjusted monthly gross income of $15487.00 per month (after subtracting $400.00 per month for Mr. Wells’ court ordered child support for his daughter Aimee) resulting in a basic child support obligation of $1059.00. However, the figure of $1059.00 correlates exactly to the figure shown on the support schedule in effect on May 10, 2001, as the amount due when the combined adjusted is only $10,000.00, which is only approximately 65% of what the actual combined adjusted monthly gross income is according to Mr. Wells own figures.

Under Act 1082 of 2001, a new child support schedule was enacted in the form of La. R.S. 9:315.19, designating support figures for combined adjusted monthly gross incomes of up to $20,000.00. Under these new guidelines, using Mr. Wells’ own figure of $15,487.00 we find a basic child support payment of $1503.00 based on a combined monthly adjusted gross income of $15,450.00 and $1507.00 based on a combined monthly adjusted gross income of $15,500.00. Mr. Wells concedes that added to this basic monthly support figure should be $500.00 |Kfor net child care cost and $61.70 for medical insurance, bringing the total support figure (using Mr. Wells’ own figures) under the post August 15, 2001 schedule to at least $2062.00 per month. Using Mr. Wells allocation of 60/40 that would result in a monthly obligation of $1237.00 per month. If we were to use the trial court’s allocation of 65/35, the result is a monthly support obligation of $1344.00, or $40.00 per month more than was actually awarded by the trial court.

Mr. Wells calculation of Ms. Pratt’s income appears to differ significantly from that of the trial court. The trial court judgment attributed an annual income of $54,078.00 to her. Mr. Wells’ calculations include an additional $1040.00 due her in the form of monthly spousal support, which figure was elicited from Ms. Pratt on direct examination by her own attorney. We agree with Mr. Wells that the $1,040.00 amount needs to be added to $54,077.00 income figure used by the trial court for Ms. Pratt. In doing so we find that the monthly adjusted gross income figures presented by Mr. Wells in his brief must be accepted: $9,312.00 for Mr. Wells and $6,175.00 for Ms. Pratt, for a total of $15487.00. It follows that the allocation of support obligation as suggested in Mr. Wells’ brief of 60% to him and 40% to Ms. Pratt must also be adopted. “[T]hese percentage shares are not discretionary.” Finn v. Jackowski, 99-2808, p. 7 (La.App 2 Cir. 12/22/00), 779 So.2d 917, 922.

Therefore, we find that the trial court erred in its calculation of Ms. Pratt’s income and in the percentage allocation of the support obligation as between the spouses. Fortunately, the record is sufficiently complete that no remand is necessary to recalculate the proper support awards.

|(As mentioned earlier, under the new schedule, Mr. Wells support obligation would be only $1237.00 per month. The “Comment-2001” under La. R.S. 9:315.19 explains that:

The schedule of parents’ combined adjusted gross income up to an amount of ten thousand dollars was retained with some adjustments at the higher levels to facilitate the incorporation of additional amounts. For the same reason, the amounts of parents’ combined adjusted gross income from ten thousand dollars per month to twenty thousand dollars per month were adjusted at the lower levels. The principal effect of the 2001 amendment to this Section is to extend the schedule amounts of parents’ combined adjusted gross income to twenty thousand dollars. [Emphasis added.]

It is interesting to note that, consistent with this Comment, the old and new schedules are identical until a combined adjusted monthly income figure of $9400.00 is reached. After that point the new schedule becomes progressively higher, although not substantially so. Therefore, although the new schedule was not in force for the purposes of the instant litigation, it nonetheless can be used as a reference point for reasonableness of awards where the combined monthly income exceeds the $10,000.00 maximum figure found in the old schedule. Considering all of the factors discussed up to this point, we find that Mr. Wells should bear a basic monthly child support obligation of $1,200.00, before considering the merits of his arguments for a downward deviation.

The appellant assigns as error the failure of the trial court to deviate from the Child Support Guidelines under La. R.S. 9:315.1 because the amount awarded by the trial court failed to consider appellant’s expenses in connection with his obligation to support his other three children. Former La. R.S. 9:315.1 C(2) as applicable to the instant proceedings provided that:

|7C. In determining whether to deviate from the guidelines, the court’s considerations may include:
(2) The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household.

Relying on Timmons v. Timmons, 605 So.2d 1162 (La.App. 2 Cir.1992), the appellee counters that:

There is no abuse of discretion by a district court that refuses to deviate from the guidelines because of a party’s obligation to support a child of a different marriage who resides with them.

In effect, appellee argues that the trial court is automatically free to ignore a party’s obligation to support other children who reside with him/her. Timmons analyzes the problem as follows:

The thrust of defendant’s argument is that he is entitled to have an amount of money deducted from his gross monthly income on line l.a. of the worksheet found in LSA-R.S. 9:315.15. He notes that if he were the nondomiciliary parent of this child from his previous marriage and paying child support to his first wife, he would clearly be entitled to have such an amount taken into consideration. The district court disagreed with defendant’s argument and refused to deduct any amount from defendant’s gross monthly income.
The district court was clearly correct. “Adjusted gross income” means gross income, minus amounts for preexisting child support or spousal support obligations paid to another who is not a party to the proceedings, or on behalf of a child who is not the subject of the action of the court. LSA-R.S. 9:315(1). Although there may be no fundamental difference between having to pay child support to another and having to pay for goods and services to support and maintain a child in one’s own household, there is a legal difference because the statute clearly distinguishes between the two. [Emphasis added.]
Prior to the adoption of the guidelines and the schedule of basic support in the difficult process of calculating reasonable child support, the courts were repeatedly |schallenged by the difficult question of the value of day-to-day care and maintenance which the custodial parent gives to the child by virtue of the custodial parent’s presence and efforts. See Cobb v. Cobb, 554 So.2d 174 (La.App.2d Cir.1989), and cases cited therein. However, the current statutory scheme distinguishes between the treatment to be given support paid for a nondomicili-ary child and the credit for support of a domiciliary child in determining the appropriate level of support for the children in the case at issue. As we have already noted, support paid to another for a nondomiciliary child who is not a party to the proceedings is to be deducted in the initial stages of calculation. LSA-R.S. 9:315.1. On the other hand, the support given a domiciliary child not a party to the proceedings is to be considered in determining whether the court wishes to deviate from the guidelines. LSA-R.S. 9:315.1(0. [Emphasis added.] Obviously, the same difficulty which existed before the guidelines in determining the value to be assessed to day-to-day maintenance for a domiciliary child still pertains.
Thus, defendant was not entitled to have the cost of maintaining the child of his previous marriage automatically deducted from his gross monthly income. [Emphasis added.] However, the district court may consider the cost of maintaining the previous child as a factor in deviation from the guidelines. Accordingly, we will now consider whether the district court abused its discretion in refusing to deviate from the guidelines based on defendant’s financial obligations to his oldest child who resides with him. [Emphasis added.]

Timmons, 605 So.2d at p. 1167-1168.

Thus our reading of Timmons and our own reading of the law differs from that of the appellee. Although the amount of non-court-ordered support required by other domiciliary children is not automatically deducted from monthly gross income, it would be an abuse of discretion to automatically fail to even consider it. This is especially true where the income level of the parties exceeds the maximum provided by the support schedule, thereby affording the trial court no excuse for 19not exercising discretion. Therefore, for the trial court to refuse to admit relevant evidence concerning a party’s financial obligations to other children would be error. It is not sufficient for the trial judge to do as he did in this case and dispose of the matter by simply making the sweeping statement that he is aware of the other children.

In the following colloquy with Mr. Wells’ attorney, the trial court erred:

MS. MILLER:
Okay, Your Honor, it seems as though even though there isn’t a court order child support order for the other children, I understand, I just want them to be considered. I do have documentation just to substantiate some of their expenses, if I may?
THE COURT:
No, that’s irrelevant to these proceedings.

We are obligated to review the record to determine whether the trial court abused its discretion by not taking into account the appellant’s obligation to support other children.

The trial court rejected both parties’ attempts to introduce evidence of expenses connected with other children. Both parties proffered such evidence. Ms. Pratt did not appeal or answer the appeal filed by Mr. Wells. We find neither proffer in the record and Mr. Wells in his brief makes no reference to such evidence. His argument on appeal in this regard is based entirely on the general proposition that he has expenses in connection with the support of other children. This general proposition is unsupported by specific evidence as he has failed to assign as error or argue the failure of the trial court to receive evidence he offered on this issue. However, it has been held that it is not an abuse of discretion for the court to weigh the non-court — ordered support obligation of a party in regards to|inother children, “even without specific evidence of the impact of this obligation on his ability to support the child, who is the subject of this litigation.” Finn v. Jackowski, 99-2808, p. 6 (La.App. 1 Cir. 12/22/00), 779 So.2d 917, 921.

At the hearing below the judge made it clear that he was cognizant of the support that Mr. Wells was providing to children who were not the object of the instant child support proceedings:

It’s been made quite clear that he has three children at home or that he takes care of at present not the subject of this litigation.

However, the trial judge immediately went on to rule that the amount of expenses incurred by Mr. Wells in connection with these other children was “irrelevant to these proceedings,” and he refused to allow any evidence of those expenses to be admitted. When rendering his decision, the trial judge stated that: “... I’m not prepared to depart from the guidelines.”

Clearly, the lower court abused its discretion in its refusal to consider Mr. Wells’ other children. This Court’s task in correcting that problem is not made easier by the lack of specific evidence on this issue. However, we find that Mr. Wells obligation should be reduced by $150.00 per month in contemplation of his obligation to other children. This we feel is probably minimal, but we do not have sufficient information to enable us to do more.

The appellant also assigns as error the failure of the trial court to reduce his child support obligation because of extraordinary community debts, citing Savoie-Moore v. Moore, 1998-0235 (La.App. 4 Cir. 9/16/98), 719 So.2d 551. Former La. R.S. 9:315.1 C(4) provided that, in deciding whether to deviate from the guidelines the court might consider, “An extraordinary community debt of the parties.” The debts referred to by the appellant are not “community debts of the parties.” |n Appellant and appellee were never married. State ex rel. Dept of Social Services v. Rodell, 98-0093, p. 9-10 (La.App. 1 Cir. 5/18/99), 733 So.2d 1247, 1253. Thus, the Savoie-Moore case, upon which Mr. Wells relied, is inapposite as it involved community debts of parties who had been married. Moreover, Mr. Wells’ debts are not even debts incurred jointly with Ms. Pratt. The debts to which the appellant refers are debts of the community existing between him and his wife who is not a party to these proceedings. These are not “community debts of the parties” under former La. R.S. 9:315.1 C(4) or current La. R.S. 9:315.1 C(5). The debts are substantial, but not extraordinary given the income levels and multiple households involved. It is always a stretch where multiple households are involved. We find that a further reduction below the $1050.00 per month figure we have already calculated is not warranted.

Mr. Wells complains that the trial court erred in condemning him to pay $5,000.00 in attorney’s fees. La. R.S. 9:398.1 provides in pertinent part that:

When the court renders judgment in favor of a party seeking to establish paternity, it shall, except for good cause shown, award attorney’s fees costs to the prevailing party.

Mr. Wells’ does not contest the amount of the fee. He argues that because he had reason to doubt the paternity he should be excused from the statutory requirement to pay attorney’s fees for “good cause shown.” Although there is some merit in defendant’s argument, the record does not contain facts favoring the defendant’s argument that are so compelling that we could say that the award by the trial court of attorney’s fees was an abuse of discretion. There is evidence in the record in the form of numerous pleadings and delaying tactics from which a fact finder could reasonably infer that Mr. Wells’ contestation of paternity [^exceeded what may have been justified by any doubts he might legitimately have had. We find no merit in this assignment of error.

For the foregoing reasons the judgment of the trial court is affirmed with the exception of the percentage allocation of the various support obligations which shall be 60% for Mr. Wells and 40% for Ms. Pratt instead of 65% and 35%; Mr. Wells’ basic support obligation shall be reduced from $1302 per month to $1050.00 per month. In all other respects, the judgment below is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

MURRAY, J., concurs in part; dissents in part with reasons.

MURRAY, J.,

concurs in part. Dissents in part with reasons.

I respectfully concur with the opinion insofar as it reallocates the percentage shares of the support obligation between the parties based on Ms. Pratt’s receipt of monthly spousal support. See La. R.S. 9:315(4)(a)(defining “gross income” as including “spousal support received from a preexisting spousal support obligation.”) I disagree, however, with the opinion insofar as it finds error in the trial court’s failure to consider the amount Mr. Wells spent to support his three other minor children in his household in calculating his child support obligation.

“The fundamental justification for any deviation from the child support guidelines is a determination that strict application would either not be in the best interest of the children or would be inequitable to the parties.” Finn v. Jackowski, 99 2808, p. 5 (La.App. 1 Cir. 12/22/00), 779 So.2d 917, 921. Apparently finding neither of these undesirable results would occur, the trial court found that a departure from the guidelines based on Mr. Wells’ support obligation to his other children was not warranted.

The record reflects that Mr. Wells’ support obligation to one of those other children was already taken into account in calculating the best support obligation because it was set by a prior support judgment. See La. R.S. 9:315(l)(defining “adjusted gross income” to mean gross income minus such preexisting child | ¡.support obligations paid on behalf of a child not the subject of the action of the court). Moreover, the trial court was aware that both parties had other children in their household to support. The trial court apparently found those support obligations each party had to their other children were sufficiently offsetting so as to not warrant any deviation from the guidelines. Given those factors, I cannot say that the trial court abused its discretion in failing to depart from the guidelines to give Mr. Wells an additional credit for his support obligation to the other children in his household. I therefore dissent in part.


author: TERRI F. LOVE, Judge. hPLOTKIN, J.,

text:
    Eugene LEONARD Dudenhefer, Eugene A. Dudenhefer, Warren J. Dudenhefer, Diane Dudenhefer Volpe and Roy E. Dudenhefer v. MERAUX LAND DEVELOPMENT, L.L.C. and the State of Louisiana.
    No. 2002-CA-0863.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2003.

      Randy S. Nunez, Dysart & Tabary, Chalmette, LA, for Plaintiff/Appellee.
    Alan Abadie, Chalmette, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge MICHAEL E. KIRBY, and Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

Plaintiff, Eugene Leonard Dudenhefer (“Dudenhefer”), brought this action to be recognized as the owner and placed in possession of a parcel of land in Hopedale, Louisiana. Dudenhefer claimed ownership based on acquisitive prescription. Defendant, Meraux Land Development, L.L.C. (“Meraux Land”), claimed ownership of the parcel in dispute based on a written act translative of title and recorded in the public records. The trial court found Du-denhefer was in good faith and possessed the property in question continuously, openly, without interruption for thirty years within a visible boundary. Meraux appeals the judgment of the trial court. For the reasons discussed in detail below, we reverse the decision of the trial court because Dudenhefer cannot prove ownership of the property in question by acquisitive prescription of ten or thirty years.

DISCUSSION OF THE RECORD

Dudenhefer brought suit to be declared owner of and placed in possession of land between the 1921 mean low water line of Bayou LaLoutre and the southern edge of State Highway 624 in Hopedale, Louisiana. Dudenhefer learned Meraux Land was the recorded owner of the property in dispute when he attempted to sell the property in 1999. Meraux Land came into ownership of said property through 12a chain of transfers of universal and particular titles in subsequent successions and transactions from the original act of sale of Land Investment Company, Inc. Dudenhefer filed suit for ownership based on acquisitive prescription. This matter went to trial on December 12, 2001.

The parties entered into evidence by joint stipulation the following acts of sale:

1. A sheriffs sale dated October 14, 1933, conveying immovable property in St. Bernard parish to Land Investment Company, Inc.; (transferring ownership of the property in dispute)
2. An act of sale dated May 3, 1950, conveying immovable property in St. Bernard Parish from Clifton Joseph Egle to James Monvoisin; (transferring ownership of Lots “Y” and “Z”)
|?,3. An act of sale dated January 13, 1955, conveying immovable property in St. Bernard Parish from James Monvoi-sin to Harold Thomas, Jr.; (transferring ownership of Lot “Z”)
4.An act of sale dated January 13, 1955, conveying immovable property in St. Bernard Parish by James Monvoisin to Eugene L. Dudenhe-fer; (transferring ownership of Lot “Y”)
5. An act of sale dated July 12, 1948, conveying immovable property in St. Bernard Parish by Land Investment Co., Inc. to Lee J. Picou;
6. An act of sale dated April 7, 1949, conveying immovable property in St. Bernard Parish by Lee J. Picou to Clifton J. Egle;

Dudenhefer and his brother-in-law, Harold A. Thomas, Jr. (“Thomas”), testified they purchased Lots “Y” and “Z,” respectively, from James Monvoisin |4(“Monvoisin”) as a joint investment for the sole purpose of being able to obtain ownership of the property between the bayou and the highway across from their respective lots. For clarity, the property between the bayou and highway across from Lots “Y” and “Z” will be referred to as “Bayou Y” and “Bayou Z.” Neither acts of sale included a description of the property in question. At the time of purchase of Lots “Y” and “Z,” “Bayou Y” and “Bayou Z” had a boat shed and pilings in place. Also at the time of purchase, Dudenhefer entered into an agreement with Monvoisin to allow him ninety days after the date of sale to vacate the boat shed located on “Bayou Y” and “Bayou Z.”

Dudenhefer and Thomas each testified they made improvements to “Bayou Y” and “Bayou Z.” Dudenhefer made improvements to “Bayou Y” between 1955 and 1966 by constructing wharfs around the boat shed, inserting pilings, and constructing a boat hoist. In 1966, Dudenhe-fer stored pilings on “Bayou Y” that would be used in the construction of his house on Lot “Y” that year. Also in 1966, he began to operate a commercial crabbing and fishing business; this business is now a boat launch and convenience store. Dudenhe-fer constructed a paved road for access to and on “Bayou Y.”

Thomas made improvements to “Bayou Z” by constructing a pier and building bulkheads. Thomas also testified, that in 1966 he gave permission to Dudenhefer to place a forty foot container body (i.e. an ice trailer) for use in Dudenhefer’s commercial fishing and crabbing business on “Bayou Z.” Thomas constructed a paved road for access to and on “Bayou Z.”

Dudenhefer testified neither he nor Thomas erected any type of structure to outline the boundaries of “Bayou Y” or “Bayou Z.” He testified a natural boundary line existed.

|fiDudenhefer contends he purchased Lot “Z” and “Bayou Z” from Thomas in an act of sale dated April 27, 1973. The act of sale contained the same property description as the act of sale dated January 13, 1955. However, this act of sale included an additional clause as follows (hereinafter “1973 Clause”):

Also conveyed herein is any and all rights that Vendor or his predecessors in title have to the bayou frontage on Bayou LaLoutre, including all rights of prescription Vendor declaring that he has continuously since his acquisition exercised full ownership, possession and control over the portion of ground in front of the property hereinabove described from the water’s edge of Bayou LaLoutre to the right of way of the Highway Department of the State of Louisiana as had his predecessors in title.

Additionally in support of Dudenhefer’s claim, he and Thomas testified that neither of them could remefnber reading the act of sale in 1955 when they purchased their respective lots, but they thought they had purchased the property in dispute and have acted as if they had full ownership over said property since that purchase. Dudenhefer also testified he sold crabs from his commercial business operated on “Bayou Y” and “Bayou Z” to Joe Meraux. Mr. Meraux was deceased at the time of trial.

In support of its position as owner of the property in question, Meraux Land contends that neither Meraux Land nor its predecessors has ever sold, transferred, or subdivided the original tract along the bayou that Meraux Land’s ancestor in title purchased in 1933. Meraux Land has possessed the property by virtue of title since 1933. Meraux Land also introduced testimony from Carol Newman (“Newman”), an expert in title examinations and real estate transactions. Newman testified she had never seen a clause such as the 1973 Clause included in an act of sale. She testified she could not conclude the property as to which the clause was ^attempting to convey prescriptive rights because the description was inadequate to convey rights in immovable property.

The trial court found Dudenhefer and Thomas were in good faith when they purchased the bayou lots in 1955, and they each openly and continuously possessed the property as owners. This included making extensive improvements and opér-ating a commercial fishing business on said property. The trial court did not make a determination as to whether the property was acquired by acquisitive prescription of ten years, but held that Dudenhefer and his ancestors in title acquired the property by acquisitive prescription of thirty years. The trial court found La. C.C. articles 794, 3424, and 3442 requiring possession to be open, without interruption, and within visible boundaries had been satisfied. The trial court ordered that a survey be conducted post-judgment to fix Dudenhefer’s property lines to the water’s edge of Bayou LaLoutre.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993), citing, Rosell v. ESCO, 549 So.2d 840 (La.1989). Questions of law are resolved by determining whether the trial judge was legally correct or legally incorrect. Delacroix Corporation v. Perez, 98-2447, p. 4 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865, citing, Palmer v. Blue Water Marine Catering, Inc., 95-342 (La.App. 5 Cir. 10/18/95) 663 So.2d 780.

OPINION

On appeal, Meraux Land alleges the trial court committed manifest error by finding Dudenhefer was the owner of the bayou lots by acquisitive prescription of |7thirty years when he failed to prove possession inch-by-inch. Meraux Land alleges the trial court committed manifest error by not acknowledging that the accrual of prescription was interrupted by the 1973 Clause, which admits that Dudenhe-fer and Thomas knew someone else owned the bayou lots. Meraux Land further alleges the trial court also erred by ordering a land survey post-judgment, finding plaintiffs were in good faith, and allowing the plaintiffs to tack acquisitive prescription time. Lastly, Meraux Land contends the trial court manifestly erred by depriving them of their right to due process by supplementing the record post-judgment with a court ordered land survey.

In Dudenhefer’s original petition and on appeal, Dudenhefer contends he was the owner of the property by acquisitive prescription of ten years. The requisites for acquisitive prescription of ten years are: possession of ten years, good faith, just title, and a thing susceptible of acquisition by prescription. La. C.C. art. 3475. A just title is a juridical act, such as a sale, sufficient to transfer ownership or another real right, which must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated. La. C.C. art. 3483. For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses. La. C.C. art. 3480.

In the acts of sale by Monvoisin to Du-denhefer and to Thomas, there is no description of “Bayou Y” or “Bayou Z.” The only reference made in any act of sale, which attempts to convey “Bayou Y” and/or “Bayou Z” to Dudenhefer, is the 1973 Clause contained in the sale of Lot “Z” by Thomas to Dudenhefer.

The 1973 Clause attempted to convey Thomas’ rights including his prescriptive rights to “Bayou Z,” and stated Thomas had continuously exercised |sfull ownership and possession of “Bayou Z” since his acquisition of Lot “Z.” At trial, Meraux Land’s expert witness testified that the clause did not convey any rights to “Bayou Z” because the 1973 Clause did not contain an adequate description of the property. The 1973 Clause describes “Bayou Z” only as the bayou frontage on Bayou LaLoutre. It does not describe the dimensions of “Bayou Z” nor make any reference to any landmarks to describe the property that the 1973 Clause purports to convey.

We find that Dudenhefer does not meet the requirement of just title to be able to obtain ownership of “Bayou Y” or “Bayou Z” by prescription of ten years, because at no point did Dudenhefer have possession of an act translative of title that contained a description of “Bayou Y” or “Bayou Z.”

Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith. La. C.C. art. 3486. To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. La. C.C. art. 3424. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds. La. C.C. art. 794. The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession. La. C.C. art. 3442.

A person pleading prescription of thirty years bears the burden of proving unequivocal, continuous, uninterrupted, public and adverse possession by a preponderance of the evidence. Gelpi v. Shall, 355 So.2d 1014, 1016 (La.App. 4th Cir.1978), citing, Bradford v. Thomas, 344 So.2d 717 (La.App.2d Cir.1977). Whether a party has possessed property for thirty years without interruption is a factual issue which will not be disturbed on appeal absent a showing of abuse of 19discretion. Delacroix Corp. v. Perez, 1998-2447, p. 3 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865, citing, Rogers v. Haughton Timber Co., Inc., 503 So.2d 1079 (La.App. 2 Cir.1987).

In William T. Burton Industries, Inc. v. Wellman, the Supreme Court reiterated that:

‘(W)here there is a visible boundary which has been in existence for thirty years or more and the defendant in a boundary action and his predecessors in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription of thirty years should be sustained. It is our view that for the rule to be applicable two conditions must concur: First, there must be a visible boundary, artificial or otherwise; second, there must be actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds.’ (Emphasis added)

343 So.2d 996, 999 (La.1977), citing, Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957). “In the absence of title, there is no constructive possession: one has possession only of the area he actually possesses. Actual possession must be either inch by inch possession (pedis possessio) or possession within enclosures.” Chaney v. State Mineral Board, 444 So.2d 105, 108 (La.1983), citing, La. C.C. art. 3426 comment (d).

The first part of the test is of greatest concern to this Court. In light of our earlier determination that neither Duden-hefer nor Thomas had just title to “Bayou Y” or “Bayou Z,” they must be able to show a visible boundary existed to establish what land on the bayou they actually possessed.

Dudenhefer testified and argued that the highway and the canal of the bayou itself established the boundaries of “Bayou Y” and “Bayou Z.” There was no other evidence in the record indicating that Du-denhefer or Thomas erected any fences, walls, markings, or other landmarks that would establish the boundaries of the Improperty they are claiming as “Bayou Y” and “Bayou Z.” Dudenhefer testified that when he began using “Bayou Y” and “Bayou Z,” a boat shed and pilings were in place. Thomas testified that he repaired some bulkheads and constructed new bulkheads as well. Dudenhefer and Thomas also testified that they made improvements to “Bayou Y” and “Bayou Z” by paving a road, constructing wharfs and a boat hoist, inserting pilings, and operating a commercial crabbing and fishing business. However, neither Dudenhefer nor Thomas ever testified where any of these improvements were located on “Bayou Y” or “Bayou Z” or, particularly, that any of them constituted the sort of boundary contemplated by the Civil Code articles and related jurisprudence. There is only the vague reference that the improvements were located on the bayou lots.

Three photographs were entered into evidence. However, it cannot be determined from the photographs the dimensions of the area possessed, the location of the bayou in relation to the highway, or anything else as to Dudenhefer’s activities on the bayou property. These photographs do not assist this Court in determining the dimensions of the land actually possessed or utilized by Dudenhefer or Thomas.

The last piece of evidence introduced into evidence was a property tax report filed by Dudenhefer dated March 7, 1979. The property tax report indicates that taxes were paid on Lot “Y” and Lot “Z,” and it references a boat launch and tin sheds on the bayou side. There is also a hand-drawn map on the back of the tax report showing a boat hoist and two tin sheds. However, no other tax reports, surveys, pictures, business records for the commercial business, or the like were entered into evidence showing where improvements were placed or when they were made.

|T1We are only left to guess as to which areas of the bayou lots Dudenhefer and Thomas actually possessed. We must assume they possessed only the land between the highway and the bayou across from Lots “Y” and “Z,” however, this falls far short of proving what they actually possessed “inch-by-inch” for a period of thirty years. Dudenhefer and Thomas testified only as to what they did on the respective bayou lots in terms of decades, but their testimony lacked specificity as to where the improvements were made at any particular point in time. Furthermore, it is impossible to determine from the record below if the improvements made were so obvious as to put anyone on notice that Dudenhefer and Thomas possessed the bayou lots as owners. This evidence is insufficient to prove the requirements of inch-by-inch possession within a visible boundary.

Furthermore, the trial court erred by ordering a survey post-judgment to determine the boundaries of the land actually possessed by Dudenhefer and Thomas. Dudenhefer should have submitted a survey or have been able to establish inch-by-inch the land he actually possessed with specificity. The trial court cannot correct a deficiency in the record by ordering a survey post-judgment to determine the actual boundaries the plaintiff should have proven at trial. It is impossible for this Court to evaluate what criteria, if any, the trial court provided the surveyor to use when he conducted the post-judgment survey. We agree with Meraux Land that this post-judgment survey deprived them of an opportunity to refute the survey, thereby depriving them of their right to due process.

The assignments of error relating to Dudenhefer’s and Thomas’ good faith and whether Dudenhefer should have been allowed to tack his prescription time to that of Thomas are moot, as is the issue raised by Dudenhefer regarding ownership of banks of navigable waters.

\ ^DISPOSITION

We find that Dudenhefer is not the owner of “Bayou Y” or “Bayou Z” via acquisitive prescription of ten years, because neither he nor Thomas possessed just title to either of the bayou lots, which is a necessary requirement. We further find that Dudenhefer is not the owner of “Bayou Y” or “Bayou Z” via acquisitive prescription of thirty years, because he cannot establish inch-by-inch possession of the land he actually possessed. Therefore, for the above mentioned reasons, the judgment of the trial court is reversed and judgment is rendered in favor of defendants.

REVERSED AND RENDERED.

PLOTKIN, J., dissents with reasons.

hPLOTKIN, J.,

dissents with reasons.

I would affirm as amended the judgment of the lower court in that I find that the record supports the lower court’s finding that plaintiff, Eugene Dudenhefer (“Du-denhefer”) acquired the disputed strips of land, “Bayou Y” and “Bayou Z,” by thirty-year acquisitive prescription under Louisiana Civil Code Article 794.

I agree with the majority opinion that Dudenhefer is not able to obtain ownership of “Bayou Y” and “Bayou Z” by prescription of ten years because his legal title to Lots “Y” and “Z” do not transfer the adjoining bayou property. Furthermore, the record clearly indicates that Dudenhe-fer possessed “Bayou Y” as owner and that Dudenhefer and his ancestor in title to Lot “Z,” Harold Thomas (“Thomas”), possessed “Bayou Z” as owner.

The majority, however, found that the trial court committed manifest error by finding thirty-year acquisitive prescription on the grounds that, although Hopedale highway and Bayou LaLoutre form visible bounds on the northern and southern boundaries of “Bayou Y” and “Bayou Z” respectively, there was no evidence of visible bounds on the eastern and western boundaries. It is on this specific point that I dissent: I would not interpret the “visible bounds” requirement so stringently under the circumstances of this case and would find this element to be sufficiently supported by the record.

Lit must be noted at the outset that the record clearly supports the contention that Dudenhefer and his ancestors in title to Lots “Y” and “Z” have possessed the disputed area for the requisite thirty years. The record indicates that Dudenhefer purchased Lot “Y” in 1955 and had exercised possession over “Bayou Y” from that time. At the time of purchase of Lot “Y,” a boathouse existed on “Bayou Y,” which Dudenhefer used. The record also indicates that, by 1966, Dudenhefer built a boat hoist and a bulkhead on “Bayou Y” and had operated a commercial crabbing business from there. Dudenhefer purchased Lot “Z” in 1973 and exercised possession of “Bayou Z,” as owner, from that time. That possession consisted of paving the entirety of “Bayou Y” and “Bayou Z.”

Although Dudenhefer possessed “Bayou Z” as owner only from 1973, his ancestor in title to Lot “Z,” Harold Thomas (“Thomas”), possessed “Bayou Z” from the time of his purchase of Lot “Z” in 1955. At that time, “Bayou Z” contained pilings for an unfinished bulkhead, which Thomas completed in 1955. Furthermore, a cargo container was placed on “Bayou Z” in 1967 for use in Dudenhefer’s crabbing business and remained there until the area was paved in 1973. This possession of “Bayou Y” and “Bayou Z” continued, uninterrupted, until September 22, 2000, when Duden-hefer filed this petitory action. Therefore, the record clearly supports a finding of possession by thirty years. I now turn to the issue of visible bounds.

Regarding the issue of visible bounds, the record indicates that Hopedale highway runs in an easterly-westerly direction and serves as the southern boundary of Lots “Y” and “Z” and the northern boundary of “Bayou Y” and “Bayou Z.” Lot “Y” lies to the west of Lot “Z” along Hopedale Highway. It is not disputed in the record that only the northern and southern boundaries of “Bayou Y” and “Bayou 13Z” are clearly visible. However, under these circumstances, I do not feel that an absence of technical visible boundaries along the east side of “Bayou Z” and the west side of “Bayou Y” are fatal to Dudenhe-fer’s prescription claim.

According to the jurisprudence, the enclosure requirement for corporeal possession is not a technical requirement, but is “governed by the nature of the land and the use to which it is put.” Rathborne v. Hale, 95-1225, p. 5 (La.App. 4 Cir. 1/19/96), 667 So.2d 1197, 1200. To that end, it must first be noted that the disputed portion of land extends from a single boundary fine, the southern boundary, and does not extend in any direction beyond the eastern boundary of Lot “Z” and the western boundary of Lot “Y.”

Second, it should also be noted that the disputed area is bounded to the south by Bayou LaLoutre. This constitutes a clear and indisputable visible boundary. More importantly, it renders the areas of “Bayou Y” and “Bayou Z” as riparian. The classification of the area as riparian is very important as the Civil Code treats riparian land as a special classification for ownership purposes due to the changing nature of the waterway and the status of the waterway as navigable. See La. C.C. arts. 499-502.

Finally, the record is dear that Duden-hefer has exercised clear and unequivocal possession of “Bayou Y” from Hopedale Highway all the way to Bayou LaLoutre since he purchased Lot “Y” in 1955 to the time he filed the suit in 1999. Likewise, it is clear that Dudenhefer, and his ancestor in title, Mr. Thomas, exercised such possession of “Bayou Z” from Hopedale Highway all the way to Bayou LaLoutre for the same amount of time. The record also clearly indicates that this possession extended in an easterly direction to the eastern boundary line of Lot “Z” and in a westerly direction to the western boundary of Lot “Y.”

As such, under the circumstances of this particular case, the northern bank of Bayou LaLoutre forms a sufficient visible bound to support corporeal possession 14of the land between it and Hopedale Highway within the extensions of the east boundary of Lot “Z” and the western boundary of Lot “Y.” I would therefore find that the record supports thirty-year acquisitive prescription of “Bayou Y” and “Bayou Z,” in favor of Dudenhefer, under Article 794.

In addition, because I would find that the record supports the finding that Du-denhefer acquired “Bayou Y” and “Bayou Z” by thirty-year acquisitive prescription, I would further find that the court ordered survey is proper. The Code of Civil Procedure provides for a separate action for determination of boundary, which is separate and distinct from the determination of ownership under a petitory action. Compare La. C.C.P. arts. 3691-3698 mth La. C.C.P. art. 3651. The jurisprudence does, however, permit the trial court to make a determination of boundary in a petitory action where ownership is acquired by acquisitive prescription of thirty years. See Cuthbertson v. Unopened Succession of Tate, 544 So.2d 1236, 1241-42 (La.App. 3 Cir.1989). Furthermore, in a boundary action, the court is vested with the discretion to appoint a surveyor in making the boundary determination. La. C.C.P. art. 3692. The findings of the court appointed surveyor are presumptively correct where such findings are in accordance with the prevailing standards and practices. Thibodeaux v. Salassi, 331 So.2d 571, 576 (La.App. 1 Cir.1976). The parties are fi’ee to object to the appointment of the survey- or. Allen v. Martino, 529 So.2d 90, 92 (La.App. 1 Cir.1988). Further, the parties may seek to rebut the findings of the court appointed surveyor by submitting evidence, including the findings of another surveyor. See La. C.C.P. art. 3693.

Based on the law regarding the determination of boundary, I would find that, although Meraux clearly objected to the appointment of the surveyor, there is no abuse of the trial courts . discretion and affirm the appointment of the surveyor. However, I would amend the judgment to permit Meraux to submit evidence to Lrebut the findings of the court appointed surveyor, should it choose to do so. Furthermore, since the determination of boundary is a separate action from the determination of ownership, I would reverse the trial court’s assessment of costs of the independent surveyor and would order that the costs be borne equally by both parties.

Therefore, in accordance with the above, I respectfully dissent from the majority and would affirm, as amended, the holding of the trial court.

      . The act of sale contained the following property description: (1) Section 21, lying North of Bayou LaLoutre; all of Section 16, lying North of Bayou LaLoutre; all of Section 9; all of Section 4, lying South of Bayou St. Malo; Northeast Quarter of Section 19; East Half of Section 18; and the Southeast Quarter of Section 7, containing in all an area of 2242 acres, being situated in Township 14, S.R. 16 East, in the Parish of St. Bernard, Louisiana; (2) Northeast Quarter of Section 30, lying North of Bayou LaLoutre, containing 135 acres, being situated in Township 14, S.R. 16 East, in the Parish St. Bernard, Louisiana; (3) Southeast Quarter of Section 19, containing 160 acres, being situated in Township 14, S.R. 16 East, in the Parish of St. Bernard Parish, Louisiana; (4) Fractional Section 10; the South Half of Section 11; the Southwest Quarter of Section 12; the West Half of Section 13; all of section 14; all of Fractional Section 15, save and except the Fractional Southwest Quarter thereof; all of Section 23, North of Bayou LaLoutre and the West half of Section 24, North of Bayou LaL-outre, containing an area of 1916.38 acres, being situated in Township 14, S.R. 15 East, in the Parish of St. Bernard, Louisiana; (5) North Half of Northwest Quarter of Section 25, all of Fractional Section 24, lying South of Bayou LaLoutre, containing in all an area of 163 acres, being situated in Township 14, S.R. 15 East, in the Parish of St. Bernard Parish, Louisiana.

      . The act of sale contained the following property description: Fractional Section 23, North of Bayou LaLoutre, in Township 14 South, Range 15 East, of the Mississippi River in the Parish of St. Bernard, Louisiana, and being designated by the Lot Number TWENTY TWO (22) on a plan of Hopedale Subdivision No. 1 of parts of Sections 14, 15, 23, and 24 north of Bayou LaLoutre in Township 14 South, Range 15 East, made by Victor E. Hawkins, Surveyor, dated October 8th, 1936, and revised February 21, 1941, annexed to an Act before Gladys L. Ziegan, Notary Public in and for the parish of Orleans, dated December 12, 1945, which herein described lot measure two hundred one and seventy-eight hundredths (201.78’) feet front on Hopedale Highway right of way, two hundred and ten hundredths (200.10) feet in width in the rear, by a depth of five hundred twenty-five and twenty-one hundredths (525.21’) feet along the division line of Lot No. 21 and by a depth of five hundred one and two hundredths (501.21’) feet along the lower division line dividing said lot herein from Lot No. 23; LESS AND EXCEPT THEREFROM THE FOLLOWING DESCRIBED PROPERTY WHICH WAS PREVIOUSLY SOLD BY CLIFTON JOSEPH EGLE TO HAROLD A. THOMAS, JR., PER ACT BEFORE L.M. VINSANAU, NOTARY PUBLIC, DATED SEPTEMBER 1, 1949, REGISTERED IN C.O.B. 53, FOLIO 119:
      A fifty foot strip of ground taken from the side of the above described line between Lot 21 and Lot 22, and running thence, in the direction of Lot 23, ad distance of fifty and thirty hundredths (50.30’) feet front on Hope-dale Highway, or Bayou LaLoutre, the same width in the rear by a depth of 525.21 feet on the dividing line between Lot 22 and Lot 21 and by a depth of 519.17 feet on the opposite side line.
      And the property here conveyed by vendor to purchaser is designated by the Lot No. 22-A on a sketch of survey made by Harry E. Sutch, Surveyor, dated April 16, 1950, a blue print of which is annexed hereto, and, according thereto, the said Lot. No. 22-A is described as follows: Commencing at the pint where the dividing line between the original lots Nos. 22 and 23 (as designated on above mentioned plan of Victor E. Hawkins) meets the Hopedale Highway, the said Lot No. 22-A measures, in the direction of the original Lot No. 21, or in a westerly direction, 151.48 feet front on Hopedale Highway right of way, to the dividing line between Lots 22-A and 22-B; thence, in a northerly direction, along the dividing line between Lots 22-A and 22-B, a distance of 519.17 feet; thence, in an Easterly direction, a distance of 151.10 feet; thence, in a southerly direction, along the dividing line between Lots 22-A and 23, a distance of 501.02 feet, to the point of beginning.

      . Fractional Section 23, North of Bayou LaL-outre, in Township 14 South, Range 15 East, of the Mississippi River in the Parish of St. Bernard, Louisiana, and being designated as a portion of Lot 22 on a plan of Hopedale Subdivision No. One of parts of Sections 14, 15, 23, and 24 North of Bayou LaLoutre in Township 14 South, Range 15 East, made by Victor E. Hawkins, Surveyor, dated October 8th, 1936, and revised February 21, 1941, annexed to an Act before Gladys L. Ziegan, Notary Public in and for the parish of Orleans, dated December 12, 1945; which Lot No. 22 was subdivided into Lots 22-A and 22-B on a plan of survey made by H.E. Stuch, Surveyor, dated April 26, 1950, a blueprint of which is annexed to an act of sale by Clifton Joseph Egle to James Monvoisin, passed before Robert L. Hickerson, Notary Public for the Parish of Orleans, dated May 3rd, 1950, registered in the Parish of St. Bernard in Conveyance Book 53, folio 456. The portion of the said Lot 22-A here conveyed by vendor to purchaser, is designated by the letter "Z” measures, commencing at the intersection of Hopedale Highway and the dividing line between Lots 22-A and 23, a depth of 501.02 feet on the said side line dividing lot 22-A from Lot 23; and measures, thence, a width in the rear, in a westerly direction, 63.05 feet; and measures thence, in a southerly direction, along a line parallel to the side line dividing Lots 22-A and 23, of approximately 508.57 feet to the Hopedale Highway; and thence, in an easterly direction to the point of beginning, a distance along Hopedale Highway of approximately 63.165 feet.

      . Fractional Section 23Í North of Bayou LaL-outre, in Township 14 South, Range 15 East of the Mississippi River in the Parish of St. Bernard, Louisiana, and being designated as a portion of Lot 22 on a plan of Hopedale Subdivision No. One of parts of Sections 14, 15, 23, and 24 North of Bayou LaLoutre in Township 14 South, Range 15 East, made by Victor E. Hawkins, Surveyor, dated October 8th, 1936, and revised February 21, 1941, annexed to an Act before Gladys L. Ziegan, Notary Public in and for the Parish of Orleans, dated December 12, 1945; which Lot No. 22 was subdivided into Lots 22-A and 22-B on a plan of survey made by H.E. Sutch, Surveyor, dated April 26, 1950, a blueprint of which is annexed to an act of sale by Clifton Joseph Egle to James Monvoisin, passed before Robert L. Hickerson, Notary Public for the Parish of Orleans, dated May 3rd, 1950, registered in the Parish of St. Bernard in Conveyance Book 53, folio 456. The portion of said Lot 22-A here conveyed by vendor to purchaser is designated by the letter "Y” on a rough sketch which is annexed hereto; and according thereto, the said Lot "Y” commences at a distance of approximately 25.15 feet from the intersection of Hope-dale Highway, and the side line dividing Lots 22-B and 22-A, and measures, thence, along the westerly side approximately 516.17 feet to the rear line of said tract; thence, along the rear line, in an easterly direction, a width of approximately 63.5 feet; thence, in a southerly direction, along a line parallel to the line dividing Lots 22-B and 22-A, a distance of approximately 508.57 feet; thence, along Hopedale Highway, in a westerly direction, to the point of beginning, a distance of approximately 63.165 feet.

      . The act of sale contained the following property description: Fractional Section 23, north of Bayou LaLoutre, in Township 14 South, Range 15 East, of the Mississippi River in the Parish of St. Bernard, State of Louisiana, and being designated by the Lot Number TWENTY-TWO (22) on a plan of Hopedale Subdivision No. 1 of parts of Sections 14, 15, 23, and 24 north of Bayou LaLoutre in Township 14 South, Range 15 East, made by Victor E. Hawkins, Surveyor, dated October 8, 1936, and revised February 21, 1941, annexed to an Act before Gladys L. Ziegan, Notary Public in and for the parish of Orleans, dated December 12, 1945, which herein described lot measure two hundred one and seventy-eight hundredths (201.78’) feet front on Hopedale Highway right of way, two hundred and ten hundredths (200.10') feet in width in the rear, by a depth of five hundred twenty-five and twenty-one hundredths (525.21') feet along the division line of Lot No. 21 and by a depth of five hundred one and two hundredths (501.21') feet along the lower division line dividing said lot herein from Lot No. 23.

      . Same property description as Footnote 5.

      . Although there is no evidence that Duden-hefer’s corporeal possession was actually interrupted, the filing of the petitory action by Dudenhefer has the legal effect of confessing possession, thereby effectively interrupting his possession. See La. C.C.P. art. 3657.