author: MOORE, J.

text:
    STATE of Louisiana, DOTD, Plaintiff-Appellant, v. James McKEITHEN, Trustee of McKeithen Trust, et al., Defendant-Appellee.
    No. 42,830-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 2008.

      Paul Ray Dry, Bernard L. Knobloch, Jr., Baton Rouge, Oats & Hudson by James K. McCay, II, Lawrence E. Marino, Lafayette, for Appellant State of La. DOTD.
    Russell A. Woodard, for Appellee Corey Gin Co., Inc.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

_JjThe State of Louisiana, Department of Transportation and Development, appeals a judgment condemning it to pay $914,181 as just compensation for a 2.669-acre strip of land expropriated to widen a highway in Caldwell Parish and for the closure of a cotton gin necessitated by the taking. Finding error in one portion of the district court’s calculation, we amend the judgment to $869,181 and the attorney fees to $145,000, but in all other respects affirm.

Factual and Procedural Background

In 2005, the state initiated a project to widen and improve U.S. Hwy. 165 through Columbia. It needed to expropriate four parcels of land, including 2.669 acres along the base of a triangular 7.3-acre tract which Corey Gin Co. (“Corey”) had utilized as a cotton gin since 1953 under a 99-year lease. Neither the gin itself nor its accessory structures (other than one scale and an office space) were located on the land to be taken, but after the taking the new highway would run a mere 20 feet from the gin’s staging platform. Corey contended that without adequate space for rigs to enter, unload and exit safely, the business could no longer operate. The state countered that because of Corey’s limited capacity of about 10,000 bales per year and the market trend toward larger ginning facilities, Corey could not have remained in business.

Upon filing suit, the state tendered $305,109 as just compensation for Corey. The state also hired consultants who proposed, over a year after the ^taking, a “cure” to reconfigure the staging area around the gin, pave much of the surface and replace the scale, whereby the gin could stay open. Corey and its own consultants, however, maintained that the cure was unfeasible and that the tender was inadequate. Corey demanded $1.5 million for the closure of the gin.

Prior to trial, the parties stipulated that the value of the expropriated land was $6,250 per acre. The issue for trial was just compensation for the improvements taken and any resultant damages.

Overview of Corey’s Evidence

The matter proceeded to a four-day trial in July 2006. Charles Rowland, Corey’s general manager and president, testified that Corey was built in 1953. Despite its corporate status, Corey was run as a cooperative for local cotton farmers. Most of its excess revenues were returned to farmers as rebates, and it did not charge its members for ginning. Even though Corey showed a profit in only two of its last five years of operation, during this time it had reduced a debt of $1.8 million incurred to purchase a nearby gin to $250,000. Although the ginning business had its “ups and downs,” Rowland had fully expected Corey to continue into the future. He described Corey’s layout and manner of operation, and specifically how the loss of over one-third of its land would make the business unsustainable. He had examined the state’s original and revised cures, but felt they did not leave enough space for a 70-foot rig to turn around.

Thomas A. Calloway II, a cotton farmer and gin manager in Ft. Necessity, testified that although Corey’s clientele was loyal and its facility pin excellent condition, it could not operate on the remaining small tract. Buddy Tanner, a gin operator in Frogmore, testified that no gin could possibly operate on 4V2 acres.

Tony Dollar, a gin appraiser from Killen, Alabama, testified that although he had no college degree or specialized training, he routinely applied a formula he had learned from his now-deceased mentor, Dick Day, to evaluate cotton gins. Based on this formula, any gin with a 10,000-bale annual capacity has an ongoing business value of $1.15 million, and Corey’s equipment had a replacement value of $287,500 in its current condition. He originally thought the equipment itself had been taken, but when advised that Corey still owned it, he estimated it had a salvage value of $60,000.

David Johnston, an expert in business valuation, testified that an asset-based analysis was most appropriate in this case; he disagreed that sales of other gins were truly comparable. Using Dollar’s $287,500 figure for the equipment, Johnston testified that Corey’s value as an ongoing business was $1,150,000.

Gene Cope, a certified appraiser from Lafayette, testified that because of the tract’s shape and gin’s construction, Corey was a special design property which would be best valued by a cost approach. Accepting Tony Dollar’s estimate of the replacement cost of the machinery, he fixed the total replacement cost at between $1.4 and $1.7 million. After depreciation, he fixed total just compensation at $974,181 if Corey retains its lease on the remainder of the tract, and $1,180,700 if it loses its lease.

\ ¿Overview of the State’s Evidence

James L. Whitman, a cotton farmer and former gin manager in Rayville, testified that gins in Louisiana normally gin cotton for the seed, at no cost to the farmer, and actually pay a rebate to the farmer. Because of new varieties, however, gins are earning less from seed sales while other costs have risen. Because of these economics, six gins had closed in Richland Parish in recent years. He also testified that many farmers now carry their cotton to gin in shrink-wrapped modules, which hold more and travel farther, thus cutting the advantage of local gins. However, he was certain that a gin could survive on a smaller tract than Corey’s.

Charles Taylor Jr., a civil engineer from Monroe, testified that the taking removed a significant area of Corey’s operation, but that the state’s proposed cure would allow it to stay in business. The cure, which would cost $321,000, complied with all federal safety regulations, leaving sufficient room for an 18-wheeler or module truck to make a 360° turn. (Corey’s witnesses Rowland, Calloway and Tanner disagreed; during the hectic ginning season, a gin needed space enough for two cotton trailers to maneuver at the same time, and the proposed cure was simply too tight.)

Appraiser Billy Bratton of Alba, Texas, prepared a detailed appraisal. He fixed the replacement cost of Corey’s equipment at $258,000, but testified that on the date of taking it was worth $105,000.

Keats Everett, an appraiser from Monroe and adjunct professor at Louisiana Tech and University of Louisiana in Monroe, testified that he used a market data approach to evaluate the taken property. He found four | ¡^comparable sales of gins in the area between 1993 and 2005, concluding that the total value of Corey’s land, improvements and site improvements was $336,000.

The state’s expert in financial accounting, Michael E. Daigle of Covington, testified that an asset-based analysis was appropriate to evaluate a business like Corey, which did not turn a profit (he disagreed with Corey’s witness, Tony Dollar, who used a direct capitalization approach). He excluded cash receivables, vehicles, and other items not actually taken, and used Bratton’s estimate of the equipment value and Everett’s appraisal of land and improvements. He concluded that Corey’s total value was $370,000.

Action of the District Court

In written reasons for judgment, the court first stated the parties’ positions. It found that the cure proposed by the state would not restore Corey’s ability to operate. The court specifically cited the testimony of Corey’s general manager, Rowland, and of Calloway and Tanner, that the gin could not functionally and properly operate onsite after the taking. The court acknowledged that the state’s witnesses, specifically Charles Taylor, declared the cure safe and efficient, but noted that none of these had ever observed Corey in operation during the ginning season. The court then rejected the state’s contention that Corey “wanted” to close because of its lack of profitability. The court found that with 50 years of operation, a good base of local cotton farmers, a highly specialized facility and well-maintained equipment, the gin would not have closed but for the taking.

| r,The court stated that under La. Const. Art. 1, § 4, the party from whom property is taken shall be “compensated to the full extent of his loss,” which is broader than the mere market value of the property taken and severance to the remainder; the owner must be put in as good a pecuniary position as if his property had not been taken. State v. Dietrich, 555 So.2d 1355 (La.1990); State v. Griffith, 585 So.2d 629 (La.App. 2 Cir.), writ denied, 589 So.2d 1055 (1991). For example, the owner is not limited to replacement cost but may receive lost profits. Monroe Redevelopment Agency v. Succession of Kusin, 398 So.2d 1159 (La.App. 2 Cir.), writ denied, 405 So.2d 530 (1981). In certain situations, replacement cost may be awarded without deduction for depreciation. City of Shreveport v. Standard Printing Co. of Shreveport, 427 So.2d 1304 (La.App. 2 Cir.), writ denied, 434 So.2d 1106 (1983). A lessee is also entitled to the full extent of his loss. State v. Dietrich, supra; Soma Enter. Inc. v. State, 584 So.2d 1243 (La.App. 2 Cir.), writ denied, 589 So.2d 1055 (1991). Finally, noting that the bulk of the evidence was expert testimony, the court cited its broad discretion in assessing expert opinions. State v. Bray, 511 So.2d 1300 (La.App. 2 Cir.), writ denied, 515 So.2d 446 (1987).

The court accepted Gene Cope’s appraisal as to just compensation, agreeing with his view that Corey was the quintessential special-use property. The court dismissed Keats Everett’s appraisal, which was based on comparable sales; Corey was unique, and not enough sales of gins occur to draw any reliable comparisons. The court included compensation for a trailer shed that Corey built off the leased premises and used for storage. |7The court accepted Cope’s lower estimate of $974,181, but without explanation granted a credit of $60,000 for salvage value of the equipment. The final award of $914,181 was subject to credit for the $305,109 deposit.

After a separate hearing in February 2007, the court stated that reasonable attorney fees were due, but not to exceed 25% of the difference between the award and the amount of the tender. The court awarded attorney fees of $170,000 and fixed expert witness fees. The state has appealed, raising six assignments of error.

Discussion: ‘Value in Use” vs. Market Value

By its first assignment of error, the state urges the court erred in accepting the opinion of Corey’s expert, Gene Cope, regarding the value of the land and improvements because he applied a “value in use” standard instead of the market value standard. The state contends that market value is the proper standard. La. R.S. 48:453 A; Exxon Pipeline Co. v. Hill, 2000-2535 (La.5/15/01), 788 So.2d 1154; State v. Schwegmann Westside Expy., 95-1261 (La.3/1/96), 669 So.2d 1172. The state concedes that value in use may be appropriate, but only when the property produces income, a factor which Cope did not consider. In fact, Corey’s income was negligible, as the gin was run as a cooperative with dividends going to producers, not shareholders. The state submits that its own expert, Keats Everett, was the only witness to apply the market value standard, and his calculation of $307,000 was the proper amount of compensation.

Corey responds that the standard of review is manifest error and the trier of fact has great discretion which expert’s opinion to accept. The | ^constitution requires compensation “to the full extent of his loss,” and thus is not limited to market value. State v. Griffith, supra, and citations therein. This jurisprudence requires the owner to be placed in the same financial position as if the property had not been taken. The court was entitled to find that Corey was “unique,” being the only remaining gin in Caldwell and Ouachita Parishes, and that the allegedly comparable gins mentioned by Everett were actually larger and newer. In short, the court was not plainly wrong to accept Cope’s methodology.

Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into the court for his benefit. In every expropriation, a party has a right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. La. Const. Art. 1, § 4(B). The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into account the effects of the completion of the project in the manner proposed or planned. La. R.S. 48:453 B; State v. Schwegmann Westside Expy., supra. The owner is not limited to receiving just the market value of the taken property and severance damages to the remainder; he must be placed in as good a pecuniary position as he would have been had the property not been taken. State v. Dietrich, supra; State v. Griffith, supra. The determination of what amount will constitute the full extent of |9the owner’s loss depends on the facts of each case and the uniqueness of the thing taken. State v. Griffith, supra, and citations therein.

The district court candidly acknowledged that Corey’s lead expert, Cope, considered the gin “unique,” while the state’s lead expert, Everett, deemed it specialized but not unique. Supporting Cope’s view was Tom Calloway, an experienced gin manager who testified without contradiction that the concrete slab was customized to Corey’s needs. Calloway also testified that for its age, the facility was in exceptionally good condition, a point confirmed by both gin experts, Billy Bratton and Tony Dollar. Corey’s manager, Charles Rowland, testified without contradiction that Corey was the only surviving gin in Ouachita and Caldwell Parishes, in part because of its consolidation with or purchase of two nearby gins, and in part because of its customer base. These facts support the district court’s finding that Corey was sufficiently “unique” to warrant compensation greater than mere market value.

The state strongly urges that Cope’s “value in use” method cannot apply to a business like Corey which does not turn a profit. According to the financial statements, in its final five years of operation Corey showed an operating profit only one year ($22,844 in 2003); a net profit only two years, when operating losses were offset by the sale of assets; and net losses the other two years. Even with these apparently negative figures, however, Corey had always paid the standard rebates to its producers and had nearly retired a debt of $1.8 million from the purchase of Caldwell Gin. On this evidence, the district court was not plainly wrong to find that Corey did in 110fact make a profit and that Cope’s “value in use” methodology was suitable in determining just compensation. This assignment of error lacks merit.

Cost Approach vs. Market Approach

By its second assignment of error, the state urges the court erred in accepting Cope’s opinion because he used only the cost approach to valuation; this involves depreciating the cost to build a new gin, which is not the accepted appraisal standard for older properties such as Corey. In support, it cites Exxon Pipeline Co. v. Hill, supra. Further, Cope’s appraisal was flawed because it was based only on his visual analysis of the gin, while Everett relied on actual market extraction of depreciation of gins. In fact, the state submits, a gin of Corey’s age and condition has virtually no market value, based on actual sales. In support, it cites a reference book, Real Estate Valuation in Litigation, 12th ed. (Chicago: Appraisal Inst., ©2001). It concludes that Cope’s analysis is tantamount to valuing a “well-preserved buggy-whip factory at a high figure, even though there is obviously no demand for buggy-whips.”

Corey responds that the state never offered the reference book into evidence, only attaching it to a post-trial brief, and it cannot be considered on appeal. Further, the state’s “comparable sales” were not really apposite, as Corey was virtually the most specialized property Cope had ever assessed. Finally, even Everett found no deferred maintenance, thus warranting Cope’s decision to depreciate the property only 50%.

Even on the cold record, the comparable sales adduced by Everett required too much adjustment to bear any relevance to Corey. Those gins In were 35 to 40 miles away and had significant nearby competition; they had varying parcels of land, and some had warehouses; one of the sales occurred in 1993, over 10 years before the instant taking. While we recognize the difficulty of extracting compara-bles in a dwindling market like ginning, we cannot say on this record that the district court was plainly wrong to find Everett’s market analysis not truly comparable.

To render a cost estimate, Cope testified that he used reports from the state’s engineer, Charles Taylor, and cost consultant, Ronnie Rabalais, who fixed the replacement cost at $1,669,355 and $1,446,736, respectively. He applied a 50% depreciation in light of his physical examination of the property and the unanimous testimony that Corey was in exceptional condition. Everett acknowledged that depreciation of older buildings is highly subjective, that Corey had no deferred maintenance, and he had never before appraised a cotton gin, but he applied a 76% rate based on his market extraction of comparables. The court expressly found Cope’s appraisal more reliable, a finding we cannot declare plainly wrong in light of the subjectivity of depreciation, the sufficiently “unique” features of Corey’s facility, and its overall condition. This assignment lacks merit.

Value of Gin Equipment

By its third assignment of error, the state urges the district court erred in accepting the opinion of Corey’s expert, Tony Dollar, as to the value of the gin equipment prior to the taking. Dollar valued the gin at $1.15 million, the equipment at $287,500, and the post-taking salvage at $60,000. However, the state submits that every one of Dollar’s assumptions was | iaunfounded, e.g., that Corey charged producers 8<t per pound for ginning, when in fact there was no charge. The state contends that Dollar “valued an imaginary gin, which cannot be compared to Corey Gin because Mr. Dollar did not take into account any attribute of Corey Gin itself.” Citing the financial statements, the state urges that its own expert, Billy Bratton, accurately valued the equipment, post-taking, at $105,000.

Corey responds that two years prior to the taking, Bratton had appraised the equipment at roughly the same value as Dollar, $258,000. Further, because Corey could no longer operate as a gin, the equipment had nothing but salvage value.

In striking contrast to its other findings, the district court did not specifically attribute the salvage value to a particular witness, commenting only that the “best offer the court heard was $60,000.” Like the state, this court is greatly troubled by Dollar’s valuation technique, which he was totally unable to explain (and scarcely able to demonstrate on the stand), and was discredited by the state’s CPA, Mike Daigle, for its failure to consider the actual operation of the business. The state also shows that most of Dollar’s assumptions were flawed. Nevertheless, even with these problems, Dollar’s appraisal of the equipment prior to taking was close enough to Bratton’s that the court was not plainly wrong to adopt it.

The same cannot be said, however, for Dollar’s estimate of salvage value. Critically, he had initially assumed that the equipment was subject to |isthe taking, when it fact it was not. He admitted having “no idea” what Corey’s equipment would be worth to a willing buyer, but “hoped” it would be worth at least $60,000. He suggested that the lint filters alone would sell for $15,000, but Rowland testified that he had already sold them for $20,000, 33% more than Dollar’s estimate. On these facts, we find an inadequate basis to accept Dollar’s appraisal of the salvage value.

By contrast, Bratton testified that before the taking, the equipment had a replacement cost of $258,000; deducting a reasonable cost to remove it from Corey’s facility and install it elsewhere, and for diminished demand for gin equipment in the current market, the post-taking value would be $105,000, whether or not the gin was running. The state’s CPA, Daigle, considered this methodology sound and adopted it in his report. We find that Bratton’s estimate is well supported by sound appraisal and accounting practices. The judgment will be amended to award the state a credit for that amount, $105,000. This assignment has merit.

Rejection of the Cure

By its fourth assignment, the state raises the alternative claim that the court erred in finding that the proposed cure would not work. The state contends that it presented specific analysis and study while Corey offered only unsupported and unspecific opinion that the cure would be too congested. The state cites the cure fashioned by its expert engineer, Charles Taylor, and its cotton gin expert, Jimmy Whitman, who felt that redesigning the layout would accommodate all vehicular traffic; only the yard had to be changed. The cost of the proposed cure was $321,000; together with the 114stipulated land value of $6,250 per acre, the total would be no greater than $369,843. The state contends that Rowland never seriously considered either proposed cure, thus supporting its suspicion that Corey wanted to close shop.

Corey responds that the issue is fact-intensive and the court did not abuse its discretion in finding the cure unworkable.

Testimony concerning the state’s two proposed cures was perhaps the most detailed evidence in this long trial. Whitman, to his credit, labored for months, constantly revising the cure, but commented in several early drafts that 6-8 acres were needed “at minimum” or “for a convenient size,” much more than the 4V2 acres remaining after the taking. He also admitted that he never personally inspected Corey’s facility. Taylor was certain that the final proposed cure satisfied all FHA and insurance requirements and provided ample room for a module truck to make a 360° turn. He admitted, however, that in the cure, trucks would have to use at least one lane of the widened Hwy. 165 to negotiate the turn into the yard. He also assumed that at the height of ginning season, when some 30 trucks per day pulled into Corey’s yard, they would be evenly spaced at 2k per hour. To the contrary, all witnesses familiar with the actual operation of Corey testified that the situation was hectic during ginning season and that 20 feet of space between the highway and gin building was simply inadequate for a swarm of large, cumbersome trucks. This conclusion strikes us as intuitive. Finally, we see no reason to revisit the state’s contention that Corey always wanted to shut down anyway.

11sThe district court was not plainly wrong to reject the state’s final proposed cure. This assignment lacks merit.

The Shed Located Off the Leased Premises

By its fifth assignment of error, the state raises the alternative claim that the court committed legal error in compensating Corey $60,900 for an equipment shed which it did not own. The shed was built off-lease and Corey had no legal claim to it. The state contends it should not have to pay for something Corey did not even own. State v. Unverzagt, 590 So.2d 680 (La.App. 3 Cir.1991).

Corey concedes that it built the shed slightly off the lease and the owner of the property always allowed Corey to use it. Because the gin is now closed, the shed is of no value and Corey should be compensated for it. Further, Unverzagt does not actually prohibit this item of recovery.

The record supports the state’s assertion that the placement of the shed resulted from “innocent ignorance of the lease boundaries.” However, the record does not show that the owner, The McKeithen Trust, ever objected or demanded removal of the shed, thus distinguishing the case from Unverzagt, supra. Corey paid for the shed and used it freely.

The owner is not limited to receiving just the market value of the taken property and severance damages to the remainder; he must be placed in as good a pecuniary position as he would have been had the property not been taken. State v. Dietrich, supra; State v. Griffith, supra. On this record, to deny compensation for the shed would place Corey in a demonstrably worse pecuniary position than had the property not been taken. This | ^assignment lacks merit.

Attorney Fees

By its sixth assignment of error, the state contends that if this court should reduce the award of just compensation to Corey, it should also reduce the attorney fees to 25% of the final award over the $305,190 already deposited, in accordance with La. R.S. 48:453 E.

Corey responds that this is not a genuine assignment of error and that the $170,000 award was well within the 25% cap.

Reasonable attorney fees may be awarded if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees “in no event shall exceed twenty-five percent of the difference between the award and the amount deposited in the registry of the court.” La. R.S. 48:453 E; State v. Williamson, 91-2401 (La.4/20/92), 597 So.2d 439. Attorney fees should be calculated on the aggregate sum of the excess award and interest on that amount from the date title vested in the state until the date of payment. State v. Latiolais, 95-1441 (La.App. 3 Cir. 11/6/96), 690 So.2d 66, writs denied, 97-0138, 0169 (La.4/25/97), 692 So.2d 1082.

This court finds that counsel’s performance satisfies all the normal criteria for an award of attorney fees and supports a judgment for the full 25% of the difference under R.S. 48:453 E. However, we are without 117discretion to exceed the statutory limit. City of Baton Rouge v. Johnca Properties LLC, 2003-0632 (La.App. 1 Cir. 2/23/04), 873 So.2d 693, writ denied, 2004-0696 (La.5/7/04), 872 So.2d 1083. The state deposited $305,190 into the court registry; by this opinion, the award is amended to $869,181. The difference is $563,991, of which 25% is $140,997.75. Allowing a reasonable amount for interest under State v. Latiolais, supra, we are constrained to reduce the attorney fees to the highest reasonable amount under R.S. 48:453 E. The attorney fees will therefore be amended to $145,000.

Conclusion

For the reasons expressed, the judgment is amended. It is ordered, adjudged and decreed that Corey Gin Co. have judgment and recover against the plaintiff, the State of Louisiana, Department of Transportation and Development, in the amount of $869,181, subject to a credit of $305,190, plus legal interest until paid, together with judgment against the plaintiff in the amount of $145,000, for statutory attorney fees under La. R.S. 48:453 E. The judgment is in all other respects affirmed.

Appellate costs which the state was not required to advance are not assessed. La. R.S. 13:4521.

AMENDED AND AFFIRMED.

      . The total deposit was $319,901, of which a portion was allocated to the other defendants, The McKeithen Trust (Corey's lessor) and Rucker's Custom Cabinets (Corey’s subles-see). These parties settled with the state and are not involved in the appeal.

      . A subsequent amendment redesignated these provisions as La. Const. Art. 1, § 4(B)(1) and 4(B)(5), without substantive change to these particular passages. La. Acts.2006, No. 853, § 1, effective October 10, 2006.

      . For example, Dollar testified that he applied a 50% "expense deduction” to income from gin fees (which Corey did not collect), but not to income from compression and seed; when asked why the expense deduction would not apply to all sources of income, he had no explanation, but said that his result would be the same whether or not he applied the deduction across the board.

      . Factors include (1) the ultimate result obtained, (2) the responsibility incurred, (3) the importance of the litigation, (4) amount of money involved, (5) extent and character of the work performed, (6) legal knowledge, attainment and skill of the attorneys, (7) number of appearances made, (8) intricacies of the facts involved, (9) diligence and skill of counsel, and (10) the court's own knowledge. State v. Williamson, supra.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    MILLER FUNERAL HOME, Plaintiff-Appellee, v. FLOORS ON UP, INC., Defendant-Appellant.
    No. 43,051-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 2008.

      Shawn David Akers, for Appellant.
    James E. Ross, Jr., for Appellee.
    Before BROWN, PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

|1 This litigation arises out of a contract to sell and install Karndean Knight Planks, a vinyl wood plank floor. Plaintiff, Miller Funeral Home, was in the process of renovating and adding to its facility in Monroe, Louisiana. Plaintiff contracted with defendant, Floors On Up, Inc., for the purchase of the Karndean Knight Planks and their installation. Claiming defendant did not deliver the flooring timely, plaintiff sued to rescind the contract. Defendant reconvened to collect the balance owed under the contract. Defendant appeals from a judgment rendered by the Monroe City Court rescinding the contract, ordering that a $7,816 deposit be returned to plaintiff and ordering defendant to pay $7,700 in attorney fees. Defendant was also ordered to pick up the flooring previously delivered to plaintiff. Defendant’s recon-ventional demand for all damages resulting from a breach of contract was implicitly rejected. For following reasons, we reverse and render judgment rejecting plaintiffs demands and grant judgment in favor of defendant on its reconventional demand.

Discussion

Plaintiff in brief succinctly states its case as follows: “It is clear that there was a contract and the time of delivery was certain, i.e., 10 days, and defendant failed to comply, which constitute^] a breach of the contract and justified [Miller Funeral Home] canceling the contract.” The trial court agreed.

The Contract

Joseph and Cleo Miller owned and operated Miller Funeral Home and were adding on and renovating the facility. Cleo Miller started visiting | ^.defendant’s flooring store in early February 2006. A number of proposals were presented by defendant to Mrs. Miller during this period; however, not one was accepted. Finally, on March 14, 2006, Don Frith, a salesman for defendant, wrote and signed a “Proposal/Contract” to provide and install the Karndean flooring for $15,633.03. The contract required a deposit of half, or $7,816. Don Williamson, the store owner, told Mrs. Miller that to order the Karnde-an flooring the proposal must be signed and the 50% deposit paid. Mrs. Miller took the proposal and a store display depicting the Karndean Knight Planks and left. At this time, Frith had confirmed the availability of the Karndean flooring from a manufacturer. After a couple of weeks without any contact from the Millers, Williamson presumed that the proposal or offer was not accepted.

However, on April 18, 2006, Joseph Miller came to defendant’s store with the Proposal/Contract. At this time Miller signed (but did not date) the Proposal/Contract and gave Frith a check for $5,000. Miller was given a receipt for the $5,000 and was told by Frith that the amount needed for the deposit was $7,816. Miller returned to the store the next day, April 19, 2006, with an additional check in the amount of $2,816. On the receipt given to Miller for the $2,816 was handwritten in the right hand corner “10 working days.” The Proposal/Contract filed into evidence now has Joseph Miller’s signature and a handwritten statement “paid deposit $7,816.00.” The only date on the document appears at the top as March 14, 2006.

L/There clearly was an offer dated March 14, 2006. The evidence, however, establishes that this offer was not accepted until April 19, 2006. Thus, the contract date was April 19, 2006. The contract did not contain a time for delivery or installation.

Time of Delivery

After the contract was signed and the deposit received on April 19, 2006, Frith began looking for a manufacturer who could supply the plank flooring. He was able to find the supplier and complete the order on April 24, 2006.

On April 26, 2006, Mrs. Miller called Floors On Up to complain that delivery had not been made. Defendant contacted the manufacturer and was told that the Karndean Knight Planks were on backorder but could be shipped by a different method sooner at an added shipping cost of $300. When Miller refused to pay the additional cost, defendant paid the extra amount, and the order was shipped. On May 3, 2006, Steven Rick Miller, Vice President of Miller Funeral Home, sent a letter to defendant requesting cancellation of the order and demanding return of the deposit which he incorrectly said was $10,274. Floors On Up answered, pointing out that the contract had not been completed until April 19, 2006, and that it could not cancel the order while the flooring was in route. Cleo Miller responded to this in correspondence dated May 9, 2006.

On May 10, 2006, Floors On Up received 64 of the 68 boxes of the Karndean Knight Planks that were ordered; these were delivered to Miller Funeral Home on the same day. At that time, Frith and the store’s flooring |4installer met with Steven Miller to plan the installation of the flooring. They were told that work could only be done on weekends. The flooring was left on Miller Funeral Home’s property.

On May 12, 2006, Floors On Up received the remaining four boxes; however, their installer was not allowed to start work. Miller Funeral Home filed a lawsuit against Floors On Up on May 26, 2006, alleging that defendant had misrepresented a delivery date and failed to deliver the flooring “within five days of signing the contract or within a reasonable time thereafter.” Floors On Up filed an answer and a reconventional demand for $4,090.70, the amount for all delivered products minus the tendered deposits and labor costs.

The contract at issue does not stipulate a delivery date or period of days for delivery. However, the final deposit receipt contains the handwritten notation “10 working days” in a blank section under the heading “Special Instructions.” Given this history, the trial court did not err in allowing parol evidence as to the intention of the parties. Fleet Fuel, Inc. v. Mynex, Inc., 40,683 (La.App.2d Cir.03/08/06), 924 So.2d 480, writ denied, 06-0762 (La.06/23/06), 930 So.2d 977.

Where factual findings are pertinent to the interpretation of a contract, those factual findings are subject to the manifest error standard of review. Mount Mariah Baptist Church, Inc. v. Pannell's Associated Electric, Inc., 36,361 (La. App.2d Cir.12/20/02), 835 So.2d 880, writ denied, 03-0555 (La.05/02/03), 842 So.2d 1101. Under the manifest error standard, the issue is whether the trial court’s findings are reasonable. Lewis v. State, Through Dept. Of Transp. and Development, 94-2370 (La.04/21/95), 654 So.2d 311; Algabal, Inc. v. Central Oil and Supply Corp., 41,656 (La.App.2d Cir.12/13/06), 945 So.2d 905.

The trial court, in its reasons for judgment, found that the testimony of the parties and witnesses led the court to conclude that Floors On Up agreed to provide Miller Funeral Home with the flooring at a certain time. We cannot, however, find a reasonable foundation for the trial court’s conclusions.

In their testimony, the Millers repeatedly altered their “belief’ in the date of the formation of the contract. Cleo Miller testified that she expected delivery within seven days of March 14, 2006, despite the admitted fact that on March 14 she signed no document and tendered no deposit as was clearly required by the proposal. Further, Mrs. Miller did not complain of a late delivery until the end of April, over a month after she left Floors On Up for the last time.

Joseph Miller testified that he knew nothing of the negotiations when he signed Floor On Up’s proposal on April 19, 2006, and admits that he did not read the proposal, and that the document he signed could have been blank. Mr. Miller stated that his only function was to tender the deposit. As to the notation “10 working days” written on the deposit receipt, Mr. Miller did not recognize it or know who wrote it.

| fiMrs. Miller asserted that the period was five days, then five business days, and then five to seven business days, but never ten working days as purported by the notation on the deposit receipt.

Bobby Williamson, owner of Floors On Up, testified that his business never guaranteed a certain delivery date, which was not refuted, and Don Frith testified that he did not guarantee a certain delivery date, only that such deliveries usually happened between five and ten days of ordering. Frith told Mrs. Miller this on March 14, 2006, when he had located a supplier of the Karndean Knight Planks. Mrs. Miller left on that date without accepting defendant’s offer. Over a month later, Mr. Miller came in to accept the offer. At this time, Frith had to look anew for a supplier.

Reconventional Demand

The record shows that Floors On Up performed its duty reasonably and in good faith. Over a month after last negotiating with Mrs. Miller, Floors On Up, upon receiving the required deposit from Mr. Miller, checked with suppliers and upon locating the Karndean Knight Plank flooring, placed the order within four business days. Upon learning from the manufacturer that the shipment would be delayed, Floors On Up paid the additional $300 to expedite the shipment.

Only 94% of the shipment (64 of 68 boxes) arrived on May 10, 2006, but Floors On Up informed Miller Funeral Home that it could begin installation without delay. We note that plaintiff would only allow the ^installation work on weekends. We also note that the record reveals that the final four boxes arrived at defendant’s store on May 12, 2006. Counting only “working days” this was close to the ten days noted on the receipt.

The contract is the law among the parties. Scott Construction Equipment Co. v. Trinity Oilfield Const. Co., Inc., 42,181 (La.App.2d Cir.06/20/07), 960 So.2d 1170; White v. Crook, 426 So.2d 334 (La.App. 2d Cir.1983). It is clear from the record that defendant performed its duty in good faith, that defendant delivered the flooring to Miller’s Funeral Home in a timely manner for an agreed upon price, and that Miller Funeral Home breached its obligation in refusing to allow defendant to install the flooring. Accordingly, we reverse the trial court’s judgment rescinding the contract between the parties and ordering Floors On Up to pick up the Karndean Knight Planks from Miller Funeral Home.

Further, after it became apparent to Floors On Up that Miller Funeral Home would not allow the installation of the flooring, defendant mailed to plaintiff an invoice in the amount of $4,090.70, which subtracted all labor and gave full credit for all deposits paid. Accordingly, we grant judgment in favor of defendant on its re-conventional demand in the amount of $4,090.70.

Conclusion

REVERSED.

LIT IS ORDERED, ADJUDGED, AND DECREED that the demands of plaintiff, Miller Funeral Home, be rejected and dismissed.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Floors On Up, Inc., and against Miller Funeral Home in the amount of $4,090.70 with legal interest from date of demand. All costs are assessed to Miller Funeral Home.

      . In deposition testimony, however, Mrs. Miller stated that Frith told her that a delivery usually takes five to ten working days, but did not understand this as a guarantee from Frith.


text:
    Gloria SMALL, Plaintiff-Appellant v. CADDO PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 43,024-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 2008.
    Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche, by Brian D. Landry, Shreveport, for Appellant.
    Cook, Yancey, King & Galloway, by Michael D. Lowe, S. Price Barker, Shreveport, for Appellee.
    Before BROWN, GASKINS, and CARAWAY, JJ.
   BROWN, Chief Judge.

pin 2003, Gloria Small, a tenured school bus driver for the Caddo Parish School Board (“School Board”), attended a “bumping” session to fill vacant routes and chose the Southern Hills Elementary School bus route (“Southern Route”) by right of seniority. After driving this route for three years, Small was moved from the Southern Route to the Summerfield Elementary School Route prior to the start of the 2006-2007 school year by the superintendent of schools. Small objected to this change and sought redress through the school board grievance procedures claiming retaliation. Small was represented by counsel throughout this grievance process, and at the close of an evidentiary hearing, Small dismissed her retaliation claim and asserted that the superintendent was without authority to change her bus route, citing La. R.S. 17:493.1. After the School Board rejected Small’s grievance, she filed suit in district court seeking to be returned to the Southern Route via issuance of a writ of mandamus or by injunctive relief against the School Board. The trial court found in favor of the School Board and denied Small’s request for a writ of mandamus and alternative request for injunc-tive relief. We affirm.

Facts and Procedural History

Ollie Tyler, the Caddo Parish Superintendent of Schools, moved Small off the Southern Route prior to the start of the 2006-2007 school year. Tyler ordered the transfer due to a number of on-the-job incidents involving Small as reported by Otis Jones, Director of Transportation. In the spring of 2006, Small left her bus and confronted her daughter’s teacher and substitute teacher on several occasions in a threatening and disruptive | amanner. Small’s daughter was enrolled in the third grade at Southern Hills Elementary School. The confrontations include three separate incidents: (1) Small approached her daughter’s teacher, Mary Gaspard, in the school’s parking lot, in a manner that the teacher described as “rude and confrontational”; (2) Small left her bus to confront her daughter’s substitute teacher, with Small telling the assistant principal that Small “will take care of seeing that [the substitute] doesn’t work anywhere”; and (3) Small confronted Gaspard again in a threatening manner concerning her daughter’s grades and in doing so, failed to continue her route to pick up waiting children.

Jones found these actions by Small to be in violation of School Board policies. Rather than instituting termination or other disciplinary actions, Superintendent Tyler approved the reassignment of Small to the Summerfield Elementary School Route which was close to and comparable to the Southern Route. The Summerfield Route was not more onerous and was in all respects equal to the Southern Route. There were no reductions of salary, benefits, seniority, or status.

Small instituted a grievance procedure against the School Board. In her grievance complaint she charged that the change was in retaliation for “speaking out against Administration’s unfair treatment of my daughter at Southern Hills Elementary last school year.” The matter was heard at a Level I hearing on August 29, 2006, with Otis Jones; a Level II hearing on September 12, 2006, with David Barr; a Level III hearing (which was a full eviden-tiary hearing) on October 11, 2006, with Dr. Mary Nash Robinson, | ¡Assistant Superintendent and Director of Human Resources; and, finally, a Level IV hearing with the School Board on March 20, 2007.

At the conclusion of the Level III hearing, Small, who we again note was represented throughout by counsel, dismissed her retaliation claim and asserted that Superintendent Tyler was without authority to change her bus route.

All administrative relief was denied. On May 17, 2007, Small then filed a petition for writ of mandamus, or in the alternative, a request for injunctive relief in district court seeking to be returned to the Southern Route. The Board filed an exception of no cause of action and an opposition to the request for mandamus.

A judgment was rendered denying the School Board’s exception of no cause of action and thereafter, on July 20, 2007, denying the request for writ of mandamus and injunctive relief. Small appealed. The School Board did not appeal the denial of its exception of no cause of action.

Discussion

In its written opinion, the trial court states that Small “believes she ‘owns’ this (Southern Route) unless she decides to quit or retire or unless she is discharged (for cause and following a tenure hearing) from her employment as a bus driver.” Specifically, Small argues that “removing her from her route selected by seniority ... amounts to discipline without notice or hearing in violation of (La. R.S. 17:493).” Small relies on La. R.S. 17:493.1 A(l)(a) which provides:

LWhenever a school bus operator is needed to drive a new route or a route vacated by a previous operator, the school bus operator who is tenured and has acquired the greatest seniority shall be offered the opportunity to and may change from driving his route to the vacant route before another operator is selected. (Emphasis added).

Louisiana Revised Statute 17:493.1 does not strip a school board of its ability to manage the school bus routes within its jurisdiction. It simply sets a methodology based on seniority for filling a new or vacated route. The School Board appropriately vested Superintendent Tyler with the discretion and authority to approve administrative changes in regard to its school bus routes “when it is in the best interest of the students served.” This standard necessitates the exercise of discretion to determine what is and what is not in the best interest of the students. If a public officer is vested with any amount of discretion, mandamus will not lie. Vogt v. Board of Commissioners of the Orleans Levee District, 01-0089 (La.App. 4th Cir.03/27/02), 814 So.2d 648, writ granted, 02-1388 (La.09/20/02), 825 So.2d 1153, writ denied, 02-1312 (La.09/20/02), 825 So.2d 1169; Landry v. City of Erath, 628 So.2d 1178 (La.App. 3d Cir.1993), writ denied, 94-0275 (La.03/25/94), 635 So.2d 235.

The requirements of La. R.S. 17:493.1 were fully complied with in this case, and Small was given the Southern Route based upon her choice and seniority. The question presented in this case is whether Small was removed or disciplined requiring a tenure proceeding pursuant to La. R.S. 17:493.

Louisiana Revised Statute 17:493 provides in part:

LA. A permanent school bus operator shall not be removed from his position except upon written and signed charges of willful neglect of duty, or incompetence, or immorality, ..., and then only if found guilty after a hearing by the school board of the parish or city in which the school bus operator is employed ....
C. If a permanent school bus operator is found guilty by a school board, after due and legal hearing as provided herein ... and ordered removed from office, or disciplined by the board, the superintendent with approval of the board shall furnish to the school bus operator a written statement of recommendation of removal or discipline....

Superintendent Tyler testified that her action in moving Small to another route was specifically in lieu of removal or discipline. The move to another route was to avoid discipline, which could have included dismissal. The only difference between the Southern Route and the Summerfield Route was that on the new route Small did not drive to her daughter’s school where her confrontations with her daughter’s teachers had been disruptive, threatening, and embarrassing. The tenure statutes involve either termination or demotion. Neither occurred in this case. As long as there is no element of retaliation, discrimination, harassment, demotion or lower professional standing, a transfer is not prohibited.

In this case Small’s recourse was through the grievance process, which we note that Small, through her attorney, specifically invoked.

Conclusion

For the reasons set forth above, the trial court’s denial of Gloria Small’s request for writ of mandamus and injunctive relief against the Caddo Parish School Board is AFFIRMED. Costs are assessed to Gloria Small.

      . There is no explanation given as to why this process would take more than seven months to complete.

      . All agree that the grievance process is not such a hearing.


author: LOLLEY, J.

text:
    Margaret Howard TILLEY, et al., Plaintiffs-Appellants v. UNOPENED SUCCESSION OF Walter J. HOWARD, Defendants-Appellees.
    No. 43,013-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 2008.
    Rehearing Denied March 13, 2008.

      Culpepper & Carroll by Bobby L. Cul-pepper, Jonesboro, for Appellants Margaret H. Tilley, et al.
    Hal R. Henderson, Arcadia, Hargrove, Smelley, Strickland & Langley by Joseph L. Hargrove, Jr., Shreveport, for Appel-lees William Hamiter, Jr. John T. Hamiter.
    Gary D. Nunn, for Appellees Unopened Succession of Walter J. Howard, et al.
    Before STEWART, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

l1The plaintiffs in this case, Margaret Howard Tilley, Sandra Howard Morton, Jackie Gerardi, Harry C. Groves, Patricia Howard Hill and Hal and Vivian Henderson (hereinafter, plaintiffs or appellants), appeal a judgment by the Second Judicial District Court, Parish of Bienville, State of Louisiana, dismissing their claims against William Hamiter, Jr., John T. Hamiter, and the Unopened Succession of Walter J. Howard (hereinafter, the defendants or appellees). For the following reasons, we reverse the judgment of the trial court.

Facts

This matter is a suit for declaratory judgment filed by the plaintiffs to be declaimed the sole owners of all of the property described as the E/2 of SW/4, Section 17, Township 16 North, Range 4 West, Bienville Parish, Louisiana (the “property”). In their petition, the plaintiffs claim to be the sole owners of the property by virtue of ten and/or thirty years’ acquisitive prescription. The defendants, on the other hand, contend that they are co-owners of a 1/4 interest in the property.

The parties in this litigation are all descendants of Henry and Sophronia Howard. Henry and Sophronia had two sons: Walter and Charlie. The present-day litigants stem from those two roots — the plaintiffs from Charlie and the defendants from Walter. The property was originally 12owned by Henry and Sophronia. In 1902, Henry died. His widow then owned a 1/2 interest in the property, and the sons were co-owners of a 1/2 interest in the property. On November 17, 1908, Walter executed a deed (the “1908 deed”) in which he sold to his brother, Charlie, all of the interest in the property that he owned at the time (i.e., a 1/4 interest). He also purported to sell to Charlie the interest in the property he would have upon his mother’s death (i.e., the 1/4 interest he stood to inherit upon Sophronia’s death). Specifically, the 1908 deed stated (verbatim):

The said Walter J. Howard, declares that he has this day and by these presents do grant, bargain sell, convey and deliver unto his brother, the said C.G. Howard, all his interest in and to the above described property, and all the interest he would have in case of his mothers death renouncing and relinquishing all his rights, title and interest in and to said property, by reason of his heirship to said property. The said C.G. Howard accepting said sale of said interest without in any way disturbing the usufruct enjoyed by his mother.

Sophronia did not die until 1914, and there is no evidence in the record regarding her succession.

It is the 1/4 interest Walter stood to inherit from his mother that is now in dispute in this litigation. The plaintiffs, Charlie’s heirs, argue that the 1908 deed placed Walter and his heirs (the defendants) on notice that Charlie’s and/or his heirs’ possession of the property was adverse and not co-owners. At the trial of the matter, the plaintiffs provided evidence of various acts of possession through the years in order to prove their ownership of the property through acquisitive prescription. The defendants maintain that the 1908 deed did not serve to place Walter on notice of Charlie’s adverse possession, because it was an absolute nullity-Walter lacould not sell an interest in his mother’s future succession. Further, the defendants argued that the plaintiffs failed to prove overt acts of adverse possession for the requisite period of time. After hearing all the evidence, the trial court determined that the plaintiffs did not demonstrate overt and unambiguous acts for a period of time sufficient to put the defendants on notice that they intended to possess the property for themselves. Ultimately, the trial court dismissed plaintiffs’ claims and this appeal ensued.

DlSCÜSSION

After a brief trial of the matter, the trial court concluded that the plaintiffs failed to prove they had possessed the property adversely for a thirty-year period; however, we believe that this determination was manifestly erroneous, because the record shows that starting in 1908 and up to at least 1970, Charlie and his heirs exercised overt, unambiguous and uninterrupted acts of possession on the property.

The general rule of acquisitive prescription is provided in La. C.C. art. 3486, which states, “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.” The party alleging acquisitive prescription must establish that its possession has been continuous, uninterrupted, peaceable, public, and unequivocal. La. C.C. art. 3476. Possession is transferable by universal title or by particular title. La. C.C. art. 3441. Thus, there is no interruption of possession when a possessor dies. Finally, and of significance to the facts in this case, one who proves that he had possession at different times is presumed to have possessed during the 1 ¿intermediate period. La. C.C. art. 3443.

However, as a general and well-established jurisprudential rule, an owner in indivisión cannot acquire by prescription the rights of his co-owners in the property held in common. Possession by one co-owner is generally considered as being exercised on behalf of all co-owners. Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369 (1949); Hill v. Dees, 188 La. 708, 178 So. 250 (1937); Dew v. Hammett, 150 La. 1094, 91 So. 523 (1922); Simon v. Richard, 42 La. Ann. 842, 8 So. 629 (1890); Litton v. Litton, 36 La. Ann. 348 (1884); Liner v. Lewis, 34,746 (La.App. 2d Cir.06/22/01), 792 So.2d 822, writ denied, 2001-2547 (La.12/07/01), 803 So.2d 972; Headrick v. Lee, 471 So.2d 904 (La.App. 2d Cir.1985).

An exception to the general co-owner rule is allowed. Louisiana C.C. art. 3439 states, in pertinent part, that: “A co-owner, or his universal successor, commences to possess for himself when he demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co-owner.” See Franks Petroleum, Inc. v. Babineaux, 446 So.2d 862 (La.App. 2d Cir.1984); Givens v. Givens, 273 So.2d 863 (La.App. 2d Cir.1973), writ refused, 275 So.2d 868 (La.1973); Lake Charles Harbor and Terminal District v. Erwin Heirs, Inc., 1996-28, 1995-1514 (La.App. 3d Cir.05/08/96), 673 So.2d 1351. However, where a co-owner goes into and continues possession under a recorded instrument apparently conveying |fititle, even though the purported conveyance may be invalid, the recorded instrument together with the acts of possession constitute notice to other co-owners. The possession is then regarded as hostile to the claims of the other co-owners, rebutting any presumption that possession is for the benefit of all co-owners. Succession of Seals, 243 La. 1056, 150 So.2d 13 (1963); Franks Petroleum, Inc., supra; Givens, supra.

It is undisputed that Walter and Charlie commenced their ownership of the property as co-owners; thus, in order for Charlie and/or his heirs to have adversely possessed against Walter and/or his heirs as to the 1/4 interest in dispute, he would have had to give notice to Walter of his intent to adversely possess the property. Although the invalid 1908 deed from Walter to Charlie was insufficient to transfer title to the 1/4 interest in dispute, the jurisprudence is clear that it may serve as notice to Walter of Charlie’s (and his heirs’) intent to adversely possess the 1/4 interest in the property. The fact that Charlie originally went into possession under an invalid conveyance is of no importance under the rules relating to thirty-years’ prescription. In fact, thirty years’ acquisitive prescription specifically contemplates and applies to the situation where there is no valid deed translative of title and “good faith” on the part of the possessor is not required. However, the 1908 deed, together with additional overt acts of possession, could serve to rebut the presumption that possession was for the benefit of all the co-owners. Once Charlie and his heirs proved they commenced possession under a recorded instrument, the 1908 deed, it was incumbent upon the plaintiffs to prove that other “acts of possession” |fioccurred, which acts had to be “overt and unambiguous” as required by art. 3439.

Here, the trial court found in its reasons for judgment, that the earliest acts of possession did not occur until the 1950s, when Charlie’s sons, Ocie and Selby Howard, leased the property to H.G. Lowe for grazing cattle. Lowe’s rental payment consisted of the payment of the ad valorem taxes on the property. However, we note that the trial court overlooked (and committed manifest error in doing so) two important pieces of evidence indicating Charlie’s possession as owner of the property much earlier than the 1950s-(l) the tutorship proceeding of Charlie’s sons, and (2) the administration of Charlie’s succession in early 1917.

In the tutorship proceeding which occurred upon Charlie’s death, his widow petitioned the court to be named tutor and Walter to be named undertutor. In connection with the tutorship, an inventory of Charlie’s property was performed and the property was listed therein and filed with the court. It was valued at $800.00. There was no indication that Charlie’s interest in the property was shared. A short time after the tutorship proceeding was filed, Walter petitioned the court to commence the administration of Charlie’s succession, and in that petition, Walter noted “that the inventory and appraisement taken and made [in the tutorship proceeding] ... be adopted and made the inventory for the administration.” Clearly, following the 1908 deed, Charlie had possessed the property as 17owner — which possession was acknowledged by Walter in the legal court documents in 1917. Furthermore, at trial Wilber Rogers, Ocie and Selby Howard’s younger half-brother, recalled visiting the property as a child. He testified that his mother had lived in a house on the property that was later abandoned. It is evident that Charlie possessed the property for himself and his heirs, and not as co-owner, as a result of the 1908 deed, and Walter was obviously on notice of his adverse possession of the property as evidenced by the legal proceedings in which Walter was a clear participant.

Other than testimony noting occasional visits to the property and the continued payments of ad valorem taxes by Charlie’s heirs, there is no proof of an overt and unambiguous act of possession until the 1950s, when the property was leased to H.G. Lowe for the grazing of his cows. As stated, Lowe paid the property taxes as rental for the property. There was also testimony by Patricia Hill, which was confirmed by Margaret Tilley, that in the 1960s Patricia took her family regularly to the property to camp, fish, and hunt. Patricia also testified that she and her two sisters sold the timber on the property to Leon Crawley in 1969, and she provided an unsigned copy of the timber deed she kept in her records. In response, the defendants failed to provide any evidence of possession that might have served to interrupt the overt and unambiguous acts of possession by Charlie’s heirs during the period of time between the 1908 deed and the sale of timber to Crawley in 1969 — in fact, the defendants are unable to point to any acts of possession before the 1970s, when various heirs of Walter’s executed a | ¿mineral lease, that the defendants maintain interrupted the possession of the plaintiffs and their ancestors in title. Considering art. 3448, we may presume that Charlie and his heirs continued their possession of the property between 1917 until the 1950s and into the 1960s — the period of time for which the plaintiffs proved their adverse possession. See Rushing v. Smedley, 142 So. 330 (La.App. 2d Cir. 1932).

Considering the record before us, it is apparent that the plaintiffs proved actual, overt, unambiguous and uninterrupted possession of the property for more than thirty years, as well as notice of the hostile and adverse nature of Charlie’s possession by virtue of the 1908 deed. Together with the absence of any acts of possession by the defendants or their ancestors in title that might have interrupted the possession during that period, the plaintiffs prevailed in proving their sole ownership of the property through thirty years’ acquisitive prescription. The trial court was manifestly erroneous in concluding otherwise. We note that this case may be distinguished from Headrick, supra, in which it was determined that the possessors failed to demonstrate an intent to possess for themselves by overt and unambiguous acts sufficient to give notice to their co-owners. However, in Headrick, there was no instrument that purported to convey title between the co-owners to buttress the subsequent acts of possession exercised by the possessors, as in this case.

Conclusion

For the foregoing reasons, the judgment of the trial court dismissing the plaintiffs claims is hereby reversed and the plaintiffs, Margaret Howard RTilley, Sandra Howard Morton, Jackie Gerardi, Harry C. Groves, Patricia Howard Hill and Hal R. Henderson, are declared to be the sole owners of the property in dispute as prayed for in their Petition for Declaratory Judgment. All costs of this appeal are assessed to the defendants.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, CARAWAY and LOLLEY, JJ.

Rehearing denied.

      . The heirs to the Unopened Succession of Walter J. Howard are: Earl Nunn, Othel Nunn, Clovis Anderson, Charles Lee Nunn, Vonice Stroud, Shirley Payton, Mary Elizabeth Davis, Jack Norred, Arnold Calvin Howard, Joy Howard Mead, Virginia Digilormo, Jerald David Kennedy, Marlene Howard Dark, Donna Howard Catlin, Randall Howard, Joel Kevin Howard, Robbie Howard, Billy Joe Adcock, Nellie Ray Waldsworth, Jenetta Faye Stevenson, Myrtle Howard Gilbert, Floyd Desay Howard, Preston Howard, Karen Renee Causey, Michael Anthony Howard, William Hamiter and John Hamiter. We note that William Hamiter and John Hamiter retained separate counsel from the Unopened Succession of Howard, although their interests herein are aligned.

      . We note that in this case, the plaintiffs could not acquire the property by ten years’ acquisitive prescription, which requires good faith and just title. See La. C.C. art. 3475. We agree with the defendants that the 1908 deed was an absolute nullity insofar as it attempted to transfer Walter's future interest in the property, because it purported, on its face, to renounce Walter’s succession rights (through the conveyance of the property). Therefore, the 1908 deed cannot be considered the requisite "just title” to allow acquisitive prescription in ten years.

      . The inventory in the tutorship proceeding refers to only one immovable — the property— along with livestock, various farm implements, and household goods belonging to Charlie.

      . Apparently, Charlie Howard’s widow remarried after his death, and Wilber Rogers is her son from that marriage,


author: PEATROSS, J.

text:
    Cheryl Lynn Charrier STEWART and Burl Travis Stewart, Plaintiffs-Appellees v. Gregory HARE, et al., and Louisiana Farm Bureau Casualty Insurance Company, Defendant-Appellant.
    No. 42,972-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 2008.
    Cotton, Bolton, Hoychick, & Doughty, L.L.P., by David Paul Doughty, Rayville, for Appellant, Louisiana Farm Bureau Casualty Insurance Co.

      Hennen Heck, LLP, by Dennis W. Hen-nen, Monroe, for Appellees.
    Before BROWN, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| defendant, Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”), appeals the judgment of the trial court finding that Plaintiff, Cheryl Lynn Charrier Stewart, was covered on December 16, 2003, by uninsured motorist insurance in a policy issued by Farm Bureau. The sole issue before the court is whether the rejection of uninsured motorist coverage by Mrs. Stewart’s husband, Burl Stewart, also a Plaintiff, was valid under La. R.S. 22:1406(D)(l)(a)(ii) as it was amended by Act 1476 of 1997 and Act 732 of 1999. The trial court held that the rejection was not valid and, therefore, that there was UM coverage under the Farm Bureau policy. Farm Bureau appeals. For the reasons stated herein, we affirm.

FACTS

On December 16, 2003, Mrs. Stewart was a passenger in a motor vehicle that was involved in an accident. By stipulation, the parties agreed that she was not at fault in causing the accident and that her injuries exceeded the limits of the liability policies involved. Plaintiffs have settled with all other parties.

Farm Bureau had issued a policy to Plaintiffs covering a vehicle that was not involved in the accident. On November 18,1998, Mr. Stewart executed a UM waiver form for this policy. The waiver was on a “Commissioner-prescribed” form, meaning a form assigned by the Office of | ?the Louisiana Commissioner of Insurance. Mr. Stewart admitted that he intended to reject UM coverage and that he never paid for UM coverage. This policy was then renewed on September 29, 1999, but no new rejection form was executed.

The case sub judice turns on the application of La. R.S. 22:1406(D)(l)(a)(ii) as it was amended by Act 1476 of 1997 and Act 732 of 1999. When Mr. Stewart executed the UM rejection form in September 1998, the revised statute in effect was as amended by Act 1476 of 1997. Thus, the statute included the provision as added by Act 1476, as follows:

Any form executed prior to the effective date of this Act shall be valid only until the policy renewal date; thereafter, the rejection, selection of lower limits, or selection of economic-only coverage shall be on a form prescribed by the commissioner as provided in this Subsection. (Emphasis added.)

The effective date of Act 1476 was September 6, 1998. Plaintiffs executed their UM waiver after that date (September 6, 1998) and on a “Commissioner-prescribed” form as required by the statute. The parties do not dispute that this was an effective waiver at the time it was executed.

La. R.S. 22:1406(D)(l)(a)(ii) was again amended by Act 732 of 1999. Act 732 added language to the effect that a UM rejection form was valid for the life of the policy and did not have to be executed at each policy renewal. Act 732 also repeated the exact language quoted above, although not new to the statute. It included the phrase “prior to the effective date of this Act.” The effective date of Act 732 was August 15, 1999. In preparing the printer’s copy of the act, the Louisiana Law Institute substituted the phrase |s“prior to the effective date of this Act” with the date September 6,1998, the effective date of Act 1476 of 1997.

The trial court reasoned that Act 732 of 1999 was the law that must be applied in this matter. It further rejected the argument of Farm Bureau that, “the effective date of the act” was intended to be September 6,1998, as substituted by the Louisiana Law Institute. It reasoned that to use September 6, 1998, as the effective date would be to give Act 732 retroactive effect which was not the intent of the Act. Instead, the trial court ruled that the effective date of Act 732 was August 15, 1999, and, as such, the law required Farm Bureau to obtain another UM rejection form from Plaintiff at the first renewal of their policy after August 15, 1999. The completion of a UM rejection form by Mr. Stewart in November 1998 was not, therefore, effective in waiving UM coverage beyond the first renewal after the effective date of Act 732 in September 1999. The trial court ruled that UM coverage was, therefore, in effect on the date of the accident and Farm Bureau was liable for the face amount of the liability policy, which was $25,000. This appeal ensued.

DISCUSSION

The starting point for the interpretation of any statute is the language of the statute itself. When the statute is clear and unambiguous and its application does not lead to absurd consequences, the statute must be applied as written, and no further interpretation may be made in search of legislative intent. La. C.C. art. 9; Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131. In addition, when a statute is clear and unambiguous, and|4its application does not lead to absurd consequences, it is to be applied as written, and there is no justification for considering comments to its enactment as persuasive sources or interpretive aids. See Ramirez v. Fair Grounds Corp., 575 So.2d 811 (La.1991).

In the case sub judice, as set out above, Act 732 contained the language “after the effective date of this act” as the date after which a new waiver must be signed at the first policy renewal. (Emphasis added.) The effective date of Act 732 was August 15,1999. We find that the trial court, therefore, correctly concluded that the statute clearly and unambiguously provides that new rejection forms must be executed after its effective date of August 15, 1999. We agree with Plaintiffs that Act 732 specifically provided that all otherwise valid UM rejection forms would be valid only until the first policy renewal following the effective date of Act 732, and then new UM rejection forms were required to be executed. Since Farm Bureau did not have Plaintiffs execute a new rejection form, they have not validly waived UM coverage and UM coverage was in effect at the time of the accident. The clear and express language of the Act controls.

Farm Bureau cites several cases in support of its argument that September 6, 1998, is the correct date to be followed in the statute. A close reading of those cases, however, reveals that the courts have not addressed the narrow issue before us today, i.e., the correct effective date to be employed in application of 22:1406 as amended by Act 732. For example, in Richardson v. Lott, 03-0189 (La.App. 1st Cir.11/7/03), 868 So.2d 64, unit denied, 03-3324 (La.2/13/04), 867 So.2d 707, and appeal after remand, 04-2770 (La.App. 1st Cir.2/10/06), 928 So.2d 567, writ denied, 06-0596 (La.5/5/06), 927 So.2d 327, two rejection forms were examined by the court, one of which was executed on October 20, 1998, and another executed on April 10, 1997. The former was held invalid for failure to meet the requirements of Act 1476. In the second appeal, the April rejection form was found to be valid because the first policy renewal date (January 2000) fell after the effective dates of either Act 1476 or 732 and had not been reached as of the date of the accident, November 24, 1998. The applicable effective date was not at issue. An accident date of November 24, 1998, predates Act 732; as such, the applicable statute in Richardson was La. R.S. 22:1406, as amended by Act 1476. Act 732 was not at issue in Richardson. Likewise, this specific issue of statutory construction of Act 732 was not at issue in Gautreaux v. Dufrene, 04-970 (La.App. 5th Cir.1/11/05), 894 So.2d 385 or Esteve v. U.S. Agencies Cas. Ins. Co., Inc., 01-1009 (La.App. 1st Cir.5/10/02), 818 So.2d 998, which are both cited by Farm Bureau.

Significantly, however, in Richardson, supra, the court expressly noted the principles of the statutory construction at work in the case sub judice, stating that the meaning of a law must “first be sought in the language employed in the statute.” The Richardson court further explained that, when the wording of any of Louisiana’s revised statutes is clear and unambiguous, “the letter of it shall not be disregarded under the pretext of pursuing its spirit.” Richardson, supra, citing La. R.S. 1:4. As previously stated, while we understand the position of Farm Bureau, we are constrained to follow the clear wording of the act as enacted, and we affirm the judgment of the trial court.

| «CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed to Defendant, Louisiana Farm Bureau Casualty Insurance Company.

AFFIRMED.

      . La. R.S. 22:1406 was subsequently repealed by Acts 2007, No. 459, § 3, eff. Jan. 1, 2008; prior to repeal, subsection D was redesignat-ed as R.S. 22:680 by Acts 2003, No. 456, § 3.