text:
    Jesse HARDY, Jr., Bridgette Hardy, Carolyn Ann Hardy, Elaine Hardy, Ellis Hardy, Evelyn Hardy Zanders, Willie E. Zanders, Jr., Edna Mae Hardy, Stella Mae Hardy, John Hardy, Damion Merritt, Shontal Hardy, Carella Riley and Kent D. Riley v. A. WILBERT’S SONS, L.L.C., State of Louisiana Through the Department of Health and Hospitals and the Dow Chemical Corporation.
    No. 2006 CA 1093.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.

      Victor J. Woods, Jr., Baton Rouge, Counsel for Plaintiffs/Appellants Jesse Hardy, Jr., Bridgette Hardy, Carolyn Ann Hardy, Elaine Hardy, Ellis Hardy, Evelyn Hardy Zanders, Willie E. Zanders, Jr., Edna Mae Hardy, Stella Mae Hardy, John Hardy, Damion Merritt, Shontal Hardy, Carella Riley and Kent D. Riley.
    James P. Dore, Amy D. Berrett, R. Benn Vincent, Baton Rouge, Counsel for Defendani/Appellee A. Wilbert’s Sons, L.L.C.
    John Michael Parker, David M. Bien-venu, Jr., John Stewart Tharp, Baton Rouge, F. Barry Marionneaux, F. Charles Marionneaux, Plaquemine, Counsel for Defendant/Appellee The Dow Chemical Company.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

laThis appeal challenges the dismissal of a lawsuit on the ground of abandonment. We affirm.

BACKGROUND

On April 1, 2002, Jesse Hardy, Jr., and other residents of Myrtle Grove Trailer Park (Park) filed this lawsuit seeking damages against A. Wilbert’s Sons, L.L.C. (Wilbert’s), the State of Louisiana through the Department of Health and Hospitals, and The Dow Chemical Corporation (Dow). The lawsuit, filed in the 18th Judicial District Court (JDC) for the Parish of Iber-ville, was allotted to Division C. In the petition, plaintiffs alleged that Dow released certain chemicals that contaminated the drinking water supplied to the Park by its operator, Wilbert’s.

On July 1, 2002, plaintiffs requested that the defendants be served. More than three years after the filing of the service request, on August 11, 2005, Dow filed a motion to dismiss the lawsuit pursuant to La.Code Civ. P. art. 1672(C) because it had not been served during the pendency of the action. It also filed a motion to dismiss on the basis of abandonment pursuant to La.Code Civ. P. art. 561. Dow asserted that no step had been taken in the prosecution of the action for over a three-year period, after July 1, 2002. Wilbert’s also filed a motion to dismiss on the grounds of abandonment.

On August 17, 2005, the trial court issued an order requiring plaintiffs to show cause why the motion to dismiss should not be granted. On August 23, 2005, the trial court granted the ex parte motion to dismiss on the grounds of abandonment. Thereafter, on October 4, 2005, plaintiffs filed a motion to set aside the order of abandonment, asserting that discovery occurred within three years prior to the order of dismissal being granted. They also relied on a “Case Management Order” signed by a judge in another division of the 18th JDC on LOctober 4, 2002, which they insisted constituted a “step” interrupting the running of the three-year abandonment period. This order, filed into the Iberville Parish Clerk’s office on October 7, 2002, lists 19 lawsuits filed in connection with claims for injuries arising from or related to the alleged water contamination. The lawsuit filed by plaintiffs is listed in the caption of the order as being “consolidated with” the other lawsuits. Plaintiffs argued that because the case management order constituted a step in the, prosecution of the litigation, the suit could not be deemed abandoned until three years after the case management order was signed by the trial judge, October 4, 2005. Thus, plaintiffs posited, the signing of the order of dismissal on the grounds of abandonment by the trial court on September 7, 2005, was premature.

At the hearing on the motion to set aside the order of abandonment, plaintiffs urged that the case management order signed on October 4, 2002, interrupted the running of the three-year abandonment period. They further asserted that discovery was made pursuant to that order, noting that an information questionnaire was attached to the order. The record reflects that on October 18, 2005, more than three years after the case management order was signed and filed with the clerk’s office, and after the filing of the motion to dismiss, plaintiffs filed a notice of the filing of the questionnaires for certain plaintiffs, as well as the questionnaires themselves, into the record.

Following the conclusion of the hearing, the trial court rendered judgment denying the motion to set aside the abandonment. The court stressed that the relied-upon case management order was not filed into the record in the instant lawsuit until October 4, 2005, when it was attached to plaintiffs’ motion to set aside the abandonment. The court further noted that the case management order | ¡¡specifically stated that it did not act as a consolidation of the actions filed by the various Myrtle Grove claimants.

This appeal, taken by plaintiffs, followed.

DISCUSSION

Under La.Code Civ. P. art. 561, an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. This Article has been construed as imposing three requirements on a plaintiff. First, plaintiffs must take some “step” toward the prosecution of their lawsuit. A “step” is the taking of formal action intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding, and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period by either party; sufficient action by either plaintiff or defendant will be deemed a step. Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010, pp. 5-6 (La.5/15/01), 785 So.2d 779, 784. In Clark, the court stressed that there are only two circumstances where abandonment can be defeated by matters not appearing of record or not involving formal discovery. The first is based on contra non valentem, which applies where circumstances beyond a plaintiffs control prevent any action, and the other is a vraiver of the right to assert abandonment by a defendant who has taken actions inconsistent with the intent to treat the case as abandoned. Clark, 2000-3010 at p. 7, 785 So.2d at 784-85.

It is undisputed that the last action taken by a party appearing of record was the service request filed by plaintiff on July 1, 2002. Thus, the sole determination to be made by this court is whether the signing of the case | ^management order on October 4, 2002, interrupted the running of the three-year time limitation.

Plaintiffs contend that the case management order constituted a step interrupting the running of the abandonment period, because it was taken in furtherance of hastening the matter to trial. They stress that they were named in the caption of the case management order, which referred to all cases involving similar factual situations as being “consolidated.” They further contend that defendants’ motions to dismiss, filed prior to the expiration of three years from the date of the signing of the case management order, were premature and constitute steps in the prosecution of the litigation. Finally, plaintiffs submit that actual service on the defendants at the end of July of 2005 constituted a step in the prosecution interrupting prescription.

We must disagree. We find that the signing of the case management order by the trial judge in another division did not interrupt the running of the time period for abandonment as to the instant lawsuit. Moreover, none of the exceptions that would defeat abandonment for matters not appearing of record are applicable in this case. Lastly, and most importantly, plaintiffs did not demonstrate that the relied-upon action was taken by a party to the instant lawsuit. Therefore, it cannot serve to interrupt the running of the applicable period. See La.Code Civ. P. art. 561; see also Furr v. Pearce & LeBkmc, Inc., 2006-564 (La.App. 5 Cir. 12/27/06), 948 So.2d 279 (holding that the filing of a motion to dismiss the case by the clerk of court did not interrupt the running of the three-year prescriptive period for abandonment because the action was taken by the clerk of court, a non-party). We further find that the motion to dismiss was not premature.

|7It is undisputed that no step in the prosecution of this litigation appearing of record was taken by either plaintiffs or defendants after July 1, 2002, the date on which plaintiffs requested service on the defendants. On July 1, 2005, with the passing of three years without a step having been taken, the lawsuit was deemed abandoned by the operation of law. La. Code Civ. P. art. 561. Therefore, the trial court correctly dismissed the lawsuit on the grounds of abandonment.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiffs.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . We note that the record before us contained reasons for judgment and a notice of judgment, indicating that a final judgment had been signed and sent to the parties, but no signed judgment was contained in the record. While this appeal was pending, we ordered and received a signed final judgment by the trial court. This final judgment now cures any record deficiencies that may have existed when the appeal was lodged. See Overmier v. Traylor, 475 So.2d 1094 (La.1985).

      . Even if the information questionnaire, relied upon by plaintiffs to have interrupted the abandonment period, could have qualified as discovery, there is no evidence in the record that said questionnaire was served during the three-year abandonment period. See La.Code Civ. P. art. 561(B).

      . We find Seagrave v. Dean, 98-1295 (La.App. 1 Cir. 7/6/99), 739 So.2d 923, writ denied, 99-2856 (La.12/17/99), 751 So.2d 879, to be distinguishable. In Seagrave, plaintiff's attorney wrote a letter requesting a status conference prior to the abandonment having accrued. Subsequently, a status conference was held, in which defendant’s counsel appeared and participated in the status conference and signed a case management schedule.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    STATE of Louisiana v. Christopher Sheldon ARNOLD.
    No. 2007 KA 0362.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.

      Joseph Waitz, District Attorney, Juan Pickett, Ellen Daigle Doskey, Assistant District Attorneys, Houma, Counsel for Appellee State of Louisiana.
    Prentice White, Baton Rouge, Counsel for DefendanVAppellant Christopher Sheldon Arnold.
    Before: GAIDRY, McDONALD, and McClendon, jj.
   McClendon, j.

[¡.The defendant, Christopher Sheldon Arnold, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. The defendant pled not guilty. Following a jury trial, the defendant was found guilty as charged. The defendant was sentenced- to forty (40) years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals designating two counseled and two pro se assignments of error. We affirm the conviction and remand.

FACTS

On June 27, 2003, Darryl Price and another perpetrator, identified at tria] by Price and other witnesses as the defendant, committed an armed robbery at the Bank One University Branch in Terre-bonne Parish. They took over $35,000 from the bank.

According to the testimony of Price and Roger Parker, Jr., Price, Parker, William Smith, and Alicia, a friend of Parker, drove to Louisiana from California several days before the robbery. In California, Price, Parker, and William Tribble had discussed robbing a bank in Louisiana. A day or so after arriving in Louisiana, Price and Parker picked up Tribble and the defendant from the New Orleans Airport. They rented two rooms at the Deauville Motel in Thibodaux and formulated a plan to rob the bank. Present at this meeting were Price, Tribble, Parker, Milton Livas (Parker’s cousin from Louisiana), and the defendant. In preparation for the robbery, they bought a car, phones, and walkie-talkies. The guns to be used were obtained from Tribble and Livas.

|sOn the day of the robbery, Price and the defendant parked in the bank parking lot. Parker, Tribble, and Livas sat in the newly-bought car across the street from the bank. Gladys Harris, a friend of Price, was waiting in a third car at an arranged location. Price entered the bank and stood in line. Ten to twenty seconds later, the defendant entered the bank, pulled out his gun, announced it was a holdup, and ordered everyone to get down on the floor. Price jumped the counter, pulled out his gun, and told one of the female employees to open the safe. She opened the safe, but it contained only coins. At this point, another female employee approached the defendant and told him to take the money “in the teller.” The defendant went to three different teller spots and had an employee put money from each spot into a pillowcase. When the defendant told Price that their time was up, Price and the defendant exited the bank and drove away in their car. Moments later, a red dye pack exploded in the pillowcase full of money. Price continued to drive. Several blocks later, however, he lost control of the car and crashed into a ditch. Price and the defendant ran in opposite directions. According to Price, the defendant had the money with him.

Brian Davis, an eyewitness to the accident, testified at trial that, prior to the car going into a ditch, he saw “red stuff’ fly out of the passenger window. After the car crashed, Davis described the person who got out of the driver’s seat as a “black guy.” He described the person who got out of the passenger seat as a “Mexican guy.” He further testified that the “black guy” was running with a white bag in his hand, and that the other man had nothing.

Moments later, Tribble picked up the defendant. Unable to find Price, they returned to the motel room. Price, who had run to an enclosed shed-like area of a nearby house, removed the outer layer of his clothing and | ¿exposed another layer of clothes underneath. After hiding for a while, Price emerged and was apprehended by six police officers. Price was arrested and Mirandized. He then gave a recorded statement to Detective Malcolm Wolfe. According to Price, his testimony given at trial was essentially the same as the statement he gave to Detective Wolfe. In his statement, Price told Detective Wolfe about all those involved in planning the armed robbery and about the rented motel rooms. Price also stated that he and the defendant went inside the bank with guns. Based on Price’s statement, Detective Wolfe was able to apprehend some of those involved with the armed robbery, including the defendant. However, Parker, Tribble, and Harris drove back to California before they could be apprehended. Parker was arrested about thirty days later in California. Parker identified the defendant as a perpetrator of the armed robbery.

Three eyewitnesses to the robbery at the bank testified at trial. Tommy Picou, a customer, positively identified the defendant as one of the two perpetrators of the armed robbery. According to Picou, as he was walking out of the bank with his family, the defendant walked in, pointed a gun at Picou, and told him and his family to get back into the bank and get on the floor. As the defendant was walking in, Picou stated that, as the defendant was walking in, it looked as if the defendant was putting on a hat and covering his face with a bandanna. On cross-examination, Picou testified that, although he was asked by a police officer to try to identify any suspects shortly after the robbery, he could not.

Curt Domangue, the bank manager, testified that the person who was pointing a gun at Picou had a cap on and a bandanna covering his face. Domangue stated that the gunman had a light tan and described him as “almost Hispanic” or Indian. On cross-examination, Domangue stated that |fiwhen he gave a recorded statement to the police, he did not mention that the perpetrator was Hispanic or Indian. When asked if he could see the perpetrator’s face, Domangue testified, “Not with the bandanna over his nose and mouth.”

Julie Olin, the assistant manager at the bank, positively identified the defendant as one of the perpetrators of the armed robbery. She testified that she and the defendant were looking at each other when the defendant entered the bank. According to Olin, the defendant then pulled his sweatshirt up over his face and screamed, “Don’t look at my face!” Olin described the defendant as “white complected — like real light.”

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues that the evidence was insufficient to support the armed robbery conviction. Specifically, the defendant contends that the state failed to prove his identity as a perpetrator of the armed robbery.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; LSA-Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. See LSA-C.Cr. P. art. 821(B). The Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial | ^evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patomo, 2001-2585, pp. 4-5 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144. Furthermore, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Hughes, 2005-0992, pp. 5-6 (La.11/29/06), 943 So.2d 1047, 1051.

In Louisiana, an accomplice is qualified to testify against a co-perpetrator even if the state offers him inducements to testify. The inducements would merely affect the witness’s credibility. Additionally, a conviction may be sustained on the uncorroborated testimony of a purported accomplice, although the jury should be instructed to treat the testimony with great caution. When the accomplice’s testimony is materially corroborated by other evidence, such language is not required. An accomplice’s testimony is materially corroborated “if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation.” State v. Castleberry, 98-1388, p. 13 (La.4/13/99), 758 So.2d 749, 761, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999) (quoting State v. Schaffner, 398 So.2d 1032, 1035 (La.1981)); Hughes, 2005-0992 at p. 6, 943 So.2d at 1051.

Louisiana Revised Statutes 14:64(A) provides:

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the | immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Armed robbery is a general intent crime. In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Payne, 540 So.2d 520, 523-524 (La.App. 1 Cir.), writ denied, 546 So.2d 169 (La.1989).

Parties to crimes are classified as principals and accessories after the fact. LSA-R.S. 14:23. Principals are “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime .... ” LSA-R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An “individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state.” State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428 (per curiam) (quoting State v. Holmes, 388 So.2d 722, 726 (La.1980)). “The state may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. Under this theory, the defendant need not have actually performed the taking to be found guilty” of a robbery. State v. Smith, 513 So.2d 438, 444-445 (La.App. 2 Cir.1987).

In the case at hand, several witnesses provided positive identification of the defendant as one of the perpetrators of the armed robbery. Julie Olin testified that when the defendant walked into the bank, “we were looking eye to eye at each other.” The defendant then took his gun out and pulled his sweatshirt up over his face. Olin positively identified the defendant in court and testified that when the defendant first came in the bank, “I could |JD him exactly because he didn’t have a hat on, and his face wasn’t covered up.” According to Olin, the defendant’s face was not covered until he had walked further into the bank.

Darryl Price, who had already pled guilty to the armed robbery at the Bank One, testified that he had not yet been sentenced and that no promises were made to him that he would get a particular sentence if he testified at trial. Price testified that the first time he met the defendant was when Price, Parker, and William Smith (Parker’s cousin) picked up the defendant from the New Orleans Airport. Price, Tribble, Parker, and the defendant went to the motel room, where they and Livas made plans for the robbery. The plan was for Price to stand in line at the bank, followed by the defendant entering the bank about ten seconds later and announcing the holdup. On the day of the robbery, Price drove, and the defendant was in the front passenger seat. Price parked in the bank parking lot, and went into the bank first. Shortly afterward, the defendant entered the bank, and said, “Everybody down, it’s a hold-up.” Price jumped the counter, pulled out his gun, and began putting money in a pillowcase. The defendant paced around and kept Price informed about how much time he had left before they had to leave. They exited the bank and got in their car. Price drove with the defendant seated on the passenger side. Price put his gun in the back seat, and the defendant put his gun inside the pillowcase with the money. Price positively identified the defendant in court as the person who came into the bank with Price and was part of the robbery.

Roger Parker, Jr., who at the time of the trial was also charged with the armed robbery, testified that the first time he met the defendant was when Parker and Price picked the defendant up from the airport. Parker, Livas, Price, Tribble, and defendant went to the motel room and made plans 19for the robbery. On the day of the robbery, Parker sat with Tribble in a car parked across the street from the bank. Parker saw Price enter the bank and then saw the defendant enter the bank about twenty seconds later. Tribble had a phone and the defendant had a phone, so that they could communicate with each other. When the robbery was complete, Parker saw Price and the defendant exit the bank, get into their vehicle, and drive out of the parking lot. Price was driving, and the defendant was in the passenger seat. Tribble, who was driving the car that had been parked across the street, began to follow Price and the defendant, but momentarily lost them when he was held up at a traffic light. When Tribble reached the point where Price was supposed to turn, they saw Price’s car in a ditch. The car was empty, so they began looking for Price and the defendant. They found the defendant running and picked him up. The defendant was screaming that he could not see because the money “blew up.” Unable to find Price, they went back to the motel room.

The defendant contends that the testimony of Price and Parker is not reliable because, as co-conspirators, their motivation for identifying the defendant as a perpetrator was to receive leniency from the state. Price and Parker admitted to their roles in the armed robbery. At trial, they also named several other participants in the armed robbery, as well as those involved in the planning of the armed robbery. There is nothing in the record that suggests that Price or Parker would receive reduced sentences if they testified against the defendant. In fact, Price specifically testified at trial that the state made no promises to him based on his agreement to testify.

The testimony of Price and Parker, insofar as the identity of the defendant was concerned, was confirmed by other evidence introduced at 11ntrial. For example, Julie Olin, the assistant manager at Bank One, made an in-court positive identification of the defendant as one of the two perpetrators involved in the bank robbery. She testified that she and the defendant looked directly at each other before the defendant covered up his face. Also, Allen LeBlanc, a Terrebonne Parish Sheriffs Office detective who investigated the armed robbery, testified that he obtained a search warrant to search the Deauville Motel, where most of the participants in the armed robbery had met to discuss their plans. Among the things found pursuant to Detective LeBlanc’s search was a Southwest Airlines ticket stub with the name “Christopher slash A-r-n-o” on it, referencing a June 25 flight from Phoenix, Arizona to New Orleans; a University of Phoenix ID card with the name of Christopher Arnold on it; and a Southwest luggage tag with Christopher Arnold’s name, address, and phone number on it.

It is clear from the finding of guilt that the jury concluded that the testimony of Price, Parker, and Olin was credible and reliable enough to establish the defendant’s guilt. In finding the defendant guilty, it is clear the jury rejected the defense’s theory of misidentification.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261, pp. 5-6 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a h/‘thirteenth juror” in assessing what weight to give evidence in criminal cases. State v. Mitchell, 99-3342, p. 8 (La.10/17/00), 772 So.2d 78, 83.

The defendant also contends that the identification of him through a photographic lineup was unreliable because it was unduly suggestive. The reliability of any photographic lineup in the instant matter is irrelevant. When Price and Parker identified the defendant in a photographic lineup, the defendant had already been apprehended. Moreover, Price’s and Parker’s in-court identification of the defendant as one of the perpetrators was not dependent on the prior photographic lineup. They could identify the defendant because they knew him, albeit briefly. Price and Parker testified that they had spent two days with the defendant planning the armed robbery. They rode in the same car with him, conversed with him, and stayed at a motel with him. Furthermore, Olin’s in-court identification of the defendant as a perpetrator was based on a firsthand eyewitness account of the events as they transpired, not a photographic lineup. In fact, according to the testimony of Detective LeBlane, no photographic lineup was shown to any of the eyewitnesses at the bank.

After a thorough review of the record, we find that the evidence negates any reasonable probability of misidentification and supports the jury’s verdict. We are convinced that viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of armed robbery.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues that he was not given credit for time served. He further argues that the trial court failed | Ti,to advise him of the two-year prescriptive period for filing for postconviction relief.

The minutes of the sentencing transcript indicate that the defendant was given credit for time served. However, the actual sentencing transcript reflects that he was not given credit for time served or advised on filing for postconviction relief.

As to credit for time served, such an allowance of credit is mandatory. See LSA-C.Cr. P. art. 880. However, the amendment of Article 880 by 1997 La. Acts No. 788, § 1, effective August 15, 1997, rendered the giving of credit for time served automatic, without the necessity or formality of the trial court having to so state. See State v. Jarvis, 98-0522, pp. 6-7 (La.App. 1 Cir. 12/28/98), 727 So.2d 605, 609.

As the issue of filing for postcon-viction relief has been raised herein, it is apparent that the defendant has notice of the limitation period and has an attorney who. is in the position to provide him with such notice. Although we have done so in the past, we decline to remand for the trial court to provide such notice. Instead, out of an abundance of caution and in the interest of judicial economy, we refer the defendant to LSA-C.Cr.P. art. 930.8(A), which generally provides that “[n]o application for postconviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of [LSA-C.Cr.P. arts.] 914 or 922 .... ” See State v. Godbolt, 2006-0609, pp. 7-8 (La.App. 1 Cir. 11/3/06), 950 So.2d 727, 732.

This assignment of error is without merit.

PRO SE ASSIGNMENTS OF ERROR

|13In his two interrelated pro se assignments of error, the defendant argues that the trial court imposed an excessive sentence, and that there is no justification to support the great disparity in the sentences of the co-defendants. For the following reasons, we do not reach the merits of these assignments of error.

Defense counsel filed a timely motion to reconsider sentence. The trial court ordered the state to show cause on April 20, 2005, why the defendant’s motion should not be granted. On the day of the hearing (April 20), neither the defendant nor his counsel was present. On motion of the state, the trial court ordered that the matter be continued without date.

Nothing in the record indicates a ruling on the motion to reconsider sentence. Although it was defendant’s responsibility to obtain a ruling on the motion and to cause the appellate record to be supplemented with it, in its current procedural posture, any action by this court on the defendant’s appeal of the length of the sentence would be premature. At any time, the trial court could grant the defendant the relief he seeks on reconsideration of the sentence.

Therefore, we affirm the defendant’s conviction, but remand the matter to the trial court for supplementation of the record with the ruling on the defendant’s motion to reconsider sentence. If there has been no disposition of the motion, the trial court should rule on it within thirty days of the date- of this opinion. If the trial court grants the motion to reconsider and resentences the defendant, the defendant may appeal the new sentence. 114If the motion is denied, or already has been ruled on, the defendant must move to re-lodge this appeal within sixty days of the date of the ruling on the motion to reconsider sentence or the date of this opinion, whichever is later. See State v. Maloney, 625 So.2d 748, 751 (La.App. 1 Cir.1993).

CONVICTION AFFIRMED; REMANDED WITH ORDER.

      . Also charged in the bill of information were William Henry Smith, Darryl Price, Milton Lee Livas, Gladys Megale Harris, and Roger Parker, Jr. The only person on trial in the instant matter was the defendant.

      . In his brief, the defendant states that there is no dispute that a robbery took place at the Bank One or that over $35,000 was taken during the robbery. The defendant maintains, however, that he was not a party to the robbery.

      . The defendant was sentenced on January 18, 2005. The copy of the motion to reconsider sentence, which includes the signed order setting a show cause hearing, was filed February 11, 2005. See LSA-C.Cr.P. art. 881.1(A)(1).

      . If the defendant is re-sentenced, we note that the basis for the sentence should be included pursuant to the provisions of LSA-C.Cr.P. art. 894.1 C.


author: PARRO, J.

text:
    GEORGE M. MURRELL PLANTING & MANUFACTURING COMPANY v. Raymond DENNIS and Irene Dennis.
    No. 2006 CA 1341.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2007.

      John L. Delahaye, Jack T. Marionneaux, Borron & Delahaye, Plaquemine, LA, for Plaintiff-Appellee, George M. Murrell Planting & Manufacturing Co.
    Allen J. Myles, Tedrick K. Knightshead, Myles & Myles Plaquemine, LA, for Defendants-Appellants, Raymond Dennis and Irene Dennis.
    Before PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

| gRaymond and Irene Dennis appeal a judgment in this petitory action declaring that George M. Murrell Planting & Manufacturing Company (Murrell) is the owner of certain immovable property claimed by both parties. Based on our review of the facts and law, we amend the judgment, affirm the judgment as amended, and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

On January 14, 2002, Murrell filed a petition for recognition as owner of certain immovable property located in Iberville Parish. The petition described the property as:

A lot of land containing two superficial arpents bounded on the West by land of Peter Egerton, North by Jos. Henry and East by land formerly of P.O. Hebert, together with all improvements.

Murrell’s petition further stated that ownership of the above-described property was acquired from George Ross Murrell by an act of sale dated May 15, 1913, which was recorded in Book 72, Entry 42 of the conveyance records of Iberville Parish. Mur-rell acknowledged that it was not in possession of the disputed tract, and stated that Raymond and Irene Dennis (the Den-nises) were unlawfully claiming ownership of the property and had recorded a document purporting to evidence that ownership in Book 500, Entry 137 of the conveyance records of Iberville Parish. Murrell sought judgment recognizing its ownership of the disputed tract and ordering the Dennises to surrender possession of that property to it. In an amending and supplemental petition, Murrell described the disputed tract in more detail, stating that it may also be described as:

That certain tract or parcel of land lying, being and situated in the Parish of Iberville and being the easterly portion of Tract D-2, which tract is shown on a map of survey by Patín Engineers & Surveyors, Inc. dated 08/23/98 and entitled “Plat Showing The Subdivision of a 3.09 Acre Tract Belonging to Raymond & Irene Dennis Into Tracts D-l & D-2” a copy of which map being hereto attached and hereof made a part.
Said easterly portion of Tract D-2 measures 246.00 feet on its easterly line by a depth of 300 feet on its northerly and southerly lines and measures 245.5 feet on its westerly line and is bounded front or southerly by Cpi. Herman Brown Road, northerly by George Murrell, et al, easterly by St. Paul Baptist Church and westerly by the remaining portion of Tract D-2. |aSaid tract of land is also depicted on the attached sketch prepared by Carl F. Grant, Registered Land Survey dated October 8, 1999 and entitled “Preliminary Sketch Showing Property Claimed By Murrell & By Dennis Made From Abstract Information Supplied By John Delahaye & Referenced Survey Map” a copy of which sketch is hereto attached and hereof made a part and being that tract labeled “Claimed by Murrell & Dennis 2.0 Arp.”

In a second amending and supplemental petition, Murrell asked for payment of the fair rental value of the disputed tract.

The Dennises denied the allegations of Murrell’s petitions and claimed they were owners of the disputed tract by virtue of an acquisition from the McKelry estate and had been in peaceful possession of the property since the date of acquisition. Although they did not expand their pleadings, they testified at the trial that they had possessed the disputed tract before they actually bought it, and that their ancestors in title, the McKelrys, had previously possessed it for many years.

After a trial, the court concluded that Murrell had proved it was the owner, through record title, of the disputed tract and was entitled to $6000 in rentals that had been received by the Dennises for a trailer located on that property. The judgment also assessed all court costs, including experts’ fees, to the Dennises. In this appeal, the Dennises contend the trial court erred in its conclusion concerning ownership of the disputed tract.

APPLICABLE LAW

In Louisiana, the petitory action is available for the recovery of immovable property. A.N. Yiannopoulos, Property § 268, at 540, in 2 Louisiana Civil Law Treatise (4th ed.2001). The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment 14recognizing the plaintiffs ownership. LSA-C.C.P. art. 3651; Lafourche Realty Co., Inc. v. Duard Eymard Co., Inc., 93-1278 (LaApp. 1st Cir.6/24/94), 638 So.2d 1138, 1139, writ denied, 94-1991 (La.11/11/94), 644 So.2d 390. To obtain a judgment recognizing his ownership of immovable property, the plaintiff in a petito-ry action must: (1) prove that he acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession of the property; or (2) prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. LSA-C.C.P. art. 3653. Therefore, the first issue that must be determined in a petito-ry action is the question of current possession. Mt. Everett African Methodist Episcopal Church v. Carter, 96-2591 (La.App. 1st Cir.12/29/97), 705 So.2d 1179, 1181. The defendant’s possession, or lack of it, determines the burden of proof imposed on the plaintiff. Joffrion v. Scioneaux, 506 So.2d 512, 513-14 (La.App. 1st Cir.1986), writ denied, 505 So.2d 1132 (La.1987). The possession required to put the more onerous burden on the plaintiff is the same possession required to initiate the posses-sory action or to establish acquisitive prescription. Griffin v. Daigle, 99-1942 (La. App. 1st Cir.9/22/00), 769 So.2d 720, 725, writ denied, 00-3406 (La.2/2/01) 784 So.2d 648; see LSA-C.C.P. art. 3660. The defendant is in possession when he and his ancestors in title have had corporeal possession for at least one year or civil possession for the same period of time preceded by corporeal possession. See LSA-C.C.P. arts. 3658 and 3660; LSA-C.C. art. 3476; Id.

Ownership of immovable property may be acquired by the prescription of ten years by one who acquires the property in good faith under a just title and possesses it for ten years. See LSA-C.C. arts. 3473 and 3475. For acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is the owner of the thing he possesses. LSA-C.C. art. 3480.

Ownership of immovable property may also be acquired by the prescription of thirty years without the need of just title or possession in good faith. LSA-C.C. art. 3486. In a petitory action, when one party relies on title and the other on acquisitive prescription, the party relying on title will prevail unless the adversary establishes his ^ownership by acquisitive prescription. Pace v. Towns, 33,071 (La.App. 2nd Cir.4/5/00), 756 So.2d 680, 682. Stated another way, ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. Under the general codal provisions on acquisitive prescription, a possessor lacking good faith and/or just title may acquire prescriptive title to land by corporeally possessing a tract for thirty years with the intent to possess as owner. Such possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public, and unequivocal, and confers title only to such immovable property as is actually corporeally possessed. See LSA-C.C. arts. 3424, 3426, 3476, 3486, 3487, and 3488; Falcone v. Springview Country Club, Inc., 96-0794, 0795, and 0796 (La.App. 1st Cir.3/27/97), 691 So.2d 314, 316; Brown v. Wood, 451 So.2d 569 (La.App. 2nd Cir.), writ denied, 452 So.2d 1176 (La.1984). Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. LSA-C.C. art. 3425.

For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed. LSA-C.C. art. 3487. Actual possession must be either inch-by-inch possession or possession within enclosures. An enclosure is any natural or artificial boundary. LSA-CC. art. 3426, comment (d), Revision Comments-1982, citing A.N. Yiannopoulos, Property §§ 212-214, in 2 Louisiana Civil Law Treatise (2d ed.1980). The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Secret Cove, L.L.C. v. Thomas, 02-2498 (La.App. 1st Cir.11/7/03), 862 So.2d 1010, 1015, writ denied, 04-0447 (La.4/2/04), 869 So.2d 889.

One is presumed to intend to possess as owner unless he began to possess in the name of and for another. LSA-C.C. art. 3427. The intent to possess as owner may be inferred from all of the surrounding facts and circumstances. Secret Cove, 862 So.2d at 1015.

| possession can be transferred by universal title or by particular title. LSA-C.C. art. 3441. When possession is so transferred, the possession of the trans-feror is tacked to that of the transferee if there has been no interruption of possession. LSA-C.C. art. 3442. Under these provisions, privity of contract or estate is an essential prerequisite to tacking of possession. Secret Cove, 862 So.2d at 1015; Brown, 451 So.2d at 573. Therefore, under the general tacking provisions of Articles 3441 and 3442, tacking is only allowed with respect to property that is included and described in the juridical link between the possessor’s ancestor in title and the possessor himself. Brown at 573-74. Alternatively, under Louisiana Civil Code article 794, dealing with boundary actions, a title holder may acquire more land than his title calls for by possessing property beyond his title for thirty years without interruption and within visible bounds. The difference is that under Article 794, one may utilize tacking to prescribe beyond title on adjacent property to the extent of visible boundaries, whereas the general prescriptive articles allow tacking in order to prescribe to the extent of title. Id.\ Secret Cove, 862 So.2d at 1015-16.

Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong. Secret Cove, 862 So.2d at 1015. Where findings are based on determinations regarding the credibility of witnesses, the trier of fact’s findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Gewalt v. Stevens, 98-2666 (La.App. 1st Cir.9/24/99), 757 So.2d 705, 707, writ denied, 99-3063 (La.1/7/00), 752 So.2d 865.

DISCUSSION OF FACTS AND APPLICATION OF LAW

Because Murrell admitted in pleadings that it was not in possession of the disputed property, but that the property was possessed by the Dennises, Murrell had the burden of establishing ownership by acquisition from a previous owner or by acquisitive prescription. To meet that burden of proof, Murrell presented the testimony of Drew Christopher Gaudet, a professional abstractor, who had prepared an abstract of ptitle for Murrell. The abstract was admitted into evidence, along with the Grant sketch, which Gaudet said was prepared for him. Gaudet testified that the abstract of title agreed with the configuration of the relevant properties in the Grant sketch, which showed a two-arpent parcel of property “claimed by Murrell & Dennis,” bordered on the east by property owned by St. Paul Baptist Church and on the west by two tracts owned by the Dennises. According to Gaudet, the abstract of title that he prepared shows that the record owner of the two-arpent disputed tract is Murrell, which acquired it in 1913 and did not transfer or sell it after that date. The property acquired by Murrell at that time was described as:

A lot of land containing two superficial arpents bounded on the West by land of Peter Egerton, North by Joseph Henry, and East by land formerly of P.O. Hebert together with improvements.

Gaudet testified that he had traced Mur-rell’s unbroken chain of title to the disputed tract from 1797 to the present.

Gaudet had also traced the title to the Dennises’ property, which originated with a November 1920 partition among the heirs of Egerton of a three-arpent parcel directly west of the disputed tract. In the Egerton partition, a one-and-one-half-ar-pent parcel was transferred to Agnes Jackson McKelry; that parcel was bounded on the north by Henderson Banks and on the east by land of Mary Ann Billieu. The land of Mary Ann Billieu referred to in that partition is the disputed tract, which Gaudet identified as currently owned by Murrell. Gaudet stated that the Dennises had acquired the onejand-one-half-arpent8 parcel from the estate of Joseph McKelry and Agnes Jackson McKelry in 1997. The property description in that cash sale to the Dennises was:

A tract of land being more particularly described in that Act of Petition [sic] recorded in C.B. 47, Entry 932, official records of Iberville Parish, Louisiana containing one and one-half arpents, more or less, being located in Section 38, T-10-S, R-13-E, Town of Bayou Goula, Iberville Parish, Louisiana; also, described as being bounded now or formerly on the North by lands of George Murrell, et al, on the East by St. Paul Baptist Church, on the South or front by Cpl. Herman Brown Road, formerly Hebert Road, and on the West by property of George LeBlane, Jr., et al.

Gaudet testified that when the Dennises had their survey done (the Patín survey), the survey included the disputed tract, which Gaudet identified as the Murrell property, up to the St. Paul Baptist Church.

D. Denis Murrell (Mr. Murrell), the president of Murrell, also testified concerning the corporation’s ownership of the disputed tract. He stated that the property designated on the Grant sketch as “Claimed by Murrell & Dennis 2.0 Arp.” is owned by Murrell. Murrell had allowed someone to locate a trailer there many years earlier, and for a number of years, had collected rent from Mr. Michael Little (Mr. Little), the occupant of that trailer. Mr. Murrell testified that he became aware of an adverse claim concerning the disputed tract when he received a letter from an attorney, demanding that Mr. Little be reimbursed $2100 that Murrell had been “illegally collecting” from him. The letter included a sketch of the disputed tract where the trailer was located. That sketch also indicated that the easternmost portion of the disputed tract was being used as a parking lot by the St. Paul Baptist Church, Mr. Murrell confirmed that his company had allowed the church to use part of the property for a parking lot for “probably ten or more” years. He further stated that Murrell had let people pick pecans on the disputed |9tract; they would give Murrell half of the pecans they picked as consideration for their use of the property. Mr. Murrell said he had been aware of Murrell’s ownership of the disputed tract ever since he got out of the military service in 1955.

On cross-examination, Mr. Murrell admitted that he did not know if Murrell was paying the property taxes on the disputed tract, because the company owns so much property that it just pays what is assessed. He could not say whether taxes were paid by Murrell on any one, particular piece of property. Mr. Murrell stated that he would not claim any property that he or the company did not own.

Cletus Langlois, a registered professional land surveyor, testified that he was the surveyor who created the Patín survey for the Dennises. Langlois said that the documents provided to him by the Dennises were very vague, and he told them he could not “actually put those documents on the ground without a full abstract being done.” He said he was not given an abstract, but some time later, the Dennises asked him to simply show on the survey the boundaries of the property they were possessing. Therefore, the property lines shown on the Patín survey merely established the extent of the Dennises’ claimed possession and had nothing to do with actual title to the property. Langlois pointed out that his notes written on the upper left corner of the Patín survey clearly stated:

The description given for the tract of land transferred to Raymond Dennis & Irene Dennis by cash sale on September 10, 1997 does not give any dimensions for the “one and one-half arpents” transferred. The property lines shown are claimed possession lines as delineated by Raymond Dennis. No title warranty is implied or given.

Langlois further explained that the amount of property being claimed by the Dennises was about three acres, or about five arpents, considerably more than the “one and one-half arpents” actually shown in the cash sale. Referring to the Grant sketch, Langlois stated that the arpents shown on the two tracts to the west of the disputed tract, which were designated as owned by Dennis, totaled approximately one and one-half arpents, |inwhile the disputed tract, shown on the Grant sketch as claimed by Murrell and Dennis, was a two-arpent tract. The court then asked:

So, they have taken the one and a half plus the two arpents from the Murrell and put it inside their description; is that correct?

Langlois responded in the affirmative. The court then commented:

It appears looking at the record what I’ve seen so far, they purchased an ar-pent and a half of ground, and if you look at the description ... it says, bound on the east by the church. There’s your problem right there. I can tell you where it is. So now what we have is them possessing in good faith under col- or of title, but they’ve got to do it for ten years. And, there’s your problem you’re dealing with.

Wallace Hargrave, a civil engineer and land surveyor, testified that he had been to the property and had studied the Patín survey prepared by Langlois. He explained that a “linear arpent” differs from a “superficial arpent,” which is the way all the terminology in the abstract of this property was described. Basically, a “superficial arpent” is the surface area of property, the length and width of which are equal and consist of one linear ar-pent. Hargrave said the property sold to the Dennises was not deep enough to allow two superficial arpents. So they had to make it one and one-half superficial ar-pents. Hargrave stated that he also had prepared an abstract of title for the disputed tract and had traced the title back to 1860, when the disputed tract was deeded from Governor Hebert to several individual owners. He said “you trace the present ownership today of that two arpents to the Murrells. That’s my conclusion of it.” Looking at the Grant sketch, Hargrave confirmed the accuracy, “plus or minus a foot,” of the location at which the sketch showed the property line between the land claimed by Murrell and the Dennises (the disputed tract) and the Dennis property to its west.

Raymond Dennis identified the 1997 act of cash sale in which he and his wife In acquired the disputed property, along with the property immediately to the west of the disputed property. He said they had actually possessed the property before acquiring it from the estate by paying taxes from about 1989 or 1990, while they tried to get a succession opened regarding the property. Dennis said he was not aware of any previous owner of the disputed property prior to the McKelrys owning it, but in the next sentence stated that the McKelrys were heirs of the Billieus. Dennis said he employed Patín Engineers to survey the property, and he identified the Patín survey as the completed document. He read the statement on the survey stating that the “property lines shown are claimed possession lines as delineated by Raymond Dennis.” However, Dennis said he simply gave Langlois the property description prepared by his attorneys and asked him to “survey the piece of property that we have described on the map.” He denied pointing out to Langlois on the ground the area that he wanted surveyed. When shown the dates on the cash sale (September 1997) and the Patín survey (March 1998), Dennis said that the survey was prepared after the cash sale, using the property description in the cash sale. His understanding of the Patín survey was that the whole area shown as “Raymond and Irene Dennis, 3.09 acres” belonged to him and his wife. Dennis also said he had hired an abstractor to provide additional information about the boundary lines and aid the surveyor, if necessary. However, although he paid the abstractor’s invoice, he never saw the completed abstract and assumed it had been provided to his attorney. Dennis said he had received a copy of the Grant sketch from Murrell’s attorney, and he understood from that sketch that some of the property he thought was his was also being claimed by Murrell.

Dennis said his son lived in the house on a portion of the property that was not the disputed tract. He also said there were trailers on the property, but none of them were on the disputed tract. Dennis said he knew the McKelrys had owned quite a bit of property, but he did not know what size his purchase included; he only knew the boundaries. He did not know the area of an arpent as compared to an acre. When|iashown the cash sale description as encompassing one and one-half arpents, more or less, Dennis said he did not know what that meant; “It could be more. It could be less. It could be 50. It could be ten.” Dennis said he knew there was a lot of MeKelry property, and knew enough about it to know it was more than an arpent and a half, based on the property descriptions in the MeKelry succession documents. He also said that he did not tell Langlois to just come out and mark the corners and draw a plat according to his instructions. Dennis stated he did not understand the notes written on the Patín survey concerning the property lines being the “claimed possession lines” as delineated by him. He claimed the MeKelry succession was opened by his son because he had “some [distant] family members that’s in the succession.”

Dennis said his understanding was that by paying the taxes on the property even before he purchased it, he was “in control of it” or in possession of it. He did not know whether the taxes he paid before 1997 were in the name of or on behalf of the McKelrys or in his own name. He was shown a quit-claim and conveyance from the tax assessor showing that in 1992, the property was redeemed from a tax sale by “Est. Agnes Jackson McKellery c/o Raymond Dennis, Jr.” Dennis then said he was paying the taxes on behalf of Mrs. McKel-ry before he bought the property. In the next sentence, he said he did not know whether he was paying in her name, stating again, “I was in possession of it in so far as I was paying the taxes on it.” Reviewing the Grant sketch, Dennis said there was one trailer on the disputed property. It belonged to Mr. Little, who was paying him $75 per month in rent. Dennis said he had been collecting that rent for “about a couple of years.” He admitted that ownership by title had not passed to him until 1997, which was less than ten years earlier, but he said his understanding is that once he “had paid the taxes on it for x-amount of years ... I could claim ownership of it.” At this point the court asked Dennis to clarify, stating:

Let me see if I understand what your understanding is. So if I go down to [the assessor] today and say ... tell me how much the taxes are on Mr. Dennis and I’m going to pay his property tax for the next five years, I can go and take your property away from you? You pay it and I pay it, we both pay it, and I come and take your property because I paid the taxes. Is that your understanding of how the law works?

|iaDennis responded, “Well, yes.” When asked by Murrell’s attorney whether he understood that according to the bill of sale, he had not owned the property for ten years, Dennis said:

Not with the ownership since '97, no. But to my knowledge, when I paid taxes on it, this year would be like 16 or 17 years I think that is long enough for somebody somewhere down the line to understand that somebody has some ownership here. And that’s the understanding that I had.

Dennis said that during the 34 years he had lived in Bayou Goula, he never had any idea that a portion of the property was owned by Murrell and thought all of it had been owned by the McKelrys before he and his wife bought it. He said he had always known that it was the McKelrys’ property, because the McKelrys took care of the land, cut grass and trees, etc., until the Dennises took possession of it and did that kind of work on the land. However, Dennis did not personally know and could not name anyone from the McKelry family who might have lived or worked on the disputed tract.

Mrs. Dennis prefaced her testimony with the declaration that all the dealings with the land were done by professional, licensed people. She reiterated this statement throughout her testimony. Mrs. Dennis agreed that she and her husband had started paying taxes on the land 16 or 17 years earlier and also did other things on the land, such as clearing it, leveling it, and putting trailers on it before hiring the surveyor, abstractor, and attorney-all licensed professional people-to finalize the purchase. Her understanding was that from the time they started paying taxes, they were holding out to the world that they owned the property, and just had to complete the “process” by obtaining title to it. When the Patín survey was complete, Mrs. Dennis understood that the property described on it was owned by her and her husband. She had never heard that Murrell owned any property on Hebert Street. The following colloquy between Mrs. Dennis and the court then occurred:

Q. Let me ask you a rhetorical question: who owns that piece of property from the [west] of ya’ll to the highway?
A. What piece?
Q. In other words, they’ve got the church and we are going to the west—
|UA. You talking about the field?
Q. Church, then the property y’all are both claiming y’all own, and the property that your son’s house is on, then some other property, and then there is a field going to the highway. Who owns that spot between the highway and there?
A. Not titled to anyone, Judge, Your Honor.
Q. Okay. I thought I understood you to say that and I wanted to be clear. Every piece of property in the State of Louisiana is titled to somebody, either [an] organization, some legal entity, some individual, it is titled to somebody.

Mrs. Dennis reiterated her husband’s understanding of the law, stating in response to a question concerning what she thought paying taxes on somebody else’s property would do for her:

I paid the tax on it because that somebody else did not pay tax on it. So what it do[es] for me is gives me the chance to keep paying the tax so that I can own the property.

At one point in cross-examination, rather than state the date of the cash sale of the property to them, Mrs. Dennis said, “I take the Fifth Amendment on that because we have went over that over and over.” Eventually, she opined that the phrase, “one and one-half arpents, more or less” meant more, because “the survey man said more.”

Mrs. Dennis said that for all of her adult life, the McKelrys had owned the land involved in this case, including the disputed tract. She said she knew them personally, and knew that they owned it and possessed it. Although they lived in New Orleans, they had people in the community clean the land and take care of it. She never recalled a time when Murrell owned any of the land. It had been possessed by the McKelrys “from next to the church” for at least thirty years. Mrs. Dennis later acknowledged that she did not know Joseph and Agnes Jackson McKelry personally, since both of them had died long before she was born, but knew about them from her grandparents and knew some of their relatives. One name she was familiar with was Althea Coleman, who had at one time picked pecans on the property, but she could not |1Bsay what Ms. Coleman’s relationship was to the McKelry family — possibly a first or second cousin.

After reviewing all the evidence in this case, it is clear from the abstract of title that Murrell acquired ownership by title to the disputed tract in 1913, and established its unbroken chain of title to that property from 1797 to the date of the trial in June 2005. Mr. Murrell also testified that he, as president of the company, gave permission to Mr. Little to locate his trailer on the property and collected rent from him for a period of years. About ten years before the trial date, he also allowed the St. Paul Baptist Church to begin using the easternmost portion of the disputed tract as a parking lot. Therefore, Murrell established its ownership and illustrated its past acts of possession of the disputed tract. The only way the Dennises could have satisfied their claim to ownership of that property was by acquisitive prescription, either by ten years of possession with title and good faith or by thirty years of corporeal possession with the intent to possess as owner. They did not obtain any semblance of title to the disputed tract until 1997. Therefore, the ten-year acquisitive prescription available to those who hold title in good faith for that length of time is not applicable.

The only other way they could have acquired ownership of the property and supercede Murrell’s title is by continuous, uninterrupted, peaceable, public, and unequivocal corporeal possession of the disputed tract for a thirty-year period. Based on their testimony, the Dennises did not begin to pay taxes on any of the property until the late 1980s. Although their testimony concerning their work on the land was not as date-specific, it also appears they did not begin clearing the land, mowing, it, cutting trees, etc., until about the same time. Therefore, their corporeal possession of the property fell far short of the requisite thirty years. Nor could they “tack” onto the possession of their ancestors in title, the McKelrys, because then-testimony was insufficient to establish that the McKelrys actually possessed the disputed tract, which was beyond their title. Joseph and Agnes McKelry were both deceased by 1922, so their corporeal possession of their own property and/or the disputed tract ceased by that time. Neither of the Dennises could establish from personal knowledge that | ^specific persons related to Joseph and Agnes McKelry ever performed acts on the disputed tract that one could presume they were doing as owners. Simply picking up pecans on adjoining land belonging to someone else does not establish the intent to possess that land as owner. The Dennises’ beliefs that the McKelrys possessed all of the property, including the disputed tract, were based on general “knowledge” in the community and on stories passed down to them by their grandparents. As such, although the Dennises testified concerning their beliefs, these did not constitute facts sufficient to establish their thirty-year acquisitive prescription of the disputed tract.

For these reasons, we find there is a reasonable factual basis in the record for the factual finding of the trial court that Murrell owns the disputed tract, and our review of the record does not establish that the finding is manifestly erroneous. However, we note that a judgment affecting title to immovable property must describe the immovable property affected with particularity. LSA-C.C.P. art. 1919. The judgment of the trial court in this case did not describe the immovable property, but merely attached a copy of the Grant sketch. While that document depicts the property, it does not describe it in words. Since the record contains an accurate description of the disputed tract, we will amend the judgment to include this description.

CONCLUSION

For the above reasons, the judgment of February 8, 2006, is hereby amended to show that Murrell is the owner, through record title, of that tract of land described as:

A lot of land containing two superficial arpents bounded on the West by land of Peter Egerton, North by Joseph Henry and East by land formerly of P.O. Hebert, together with all improvements.
Said property is more particularly described as:
That certain tract or parcel of land lying, being and situated in the Parish of Iberville and being the easterly portion of Tract D-2, which tract is shown on a map of survey by Patín Engineers & Surveyors, Inc. dated 03/23/98 and entitled “Plat Showing The Subdivision of a 3.09 Acre Tract Belonging to Raymond & Irene Dennis Into Tracts D-l & D-2” a copy of which map being hereto attached and hereof made a part.
Said easterly portion of Tract D-2 measures 246.00 feet on its easterly line by a depth of 300 feet on its northerly and southerly lines and measures 245.5 feet on its westerly line and is bounded front or southerly by Cpl. |17Herman Brown Road, northerly by George Murrell, et ah, easterly by St. Paul Baptist Church and westerly by the remaining portion of Tract D-2.
Said tract of land is also depicted on the attached sketch prepared by Carl F. Grant, Registered Land Surveyor dated October 8, 1999 and entitled “Preliminary Sketch Showing Property Claimed By Murrell & By Dennis Made From Abstract Information Supplied By John Delahaye & Referenced Survey Map” a copy of which sketch is hereto attached and hereof made a part and being that tract labeled “Claimed by Murrell & Dennis 2.0 Arp.”

In all other respects, the judgment is affirmed. This matter is hereby remanded to the trial court with instructions to reform its judgment in accordance with this opinion. All costs of this appeal are assessed to Raymond and Irene Dennis.

AMENDED AND AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS.

GUIDRY, J. concurs.

      . In this opinion, we may refer to the property at issue as “the disputed tract.”

      . The document described in the first paragraph will be referred to in this opinion as "the Patin survey.” The document described in the third paragraph will be referred to in this opinion as "the Grant sketch.”

      . Throughout the record, various spellings are used for the names of the parties and previous owners of the relevant properties. We have chosen the spellings that appear most historically correct, based on the title documents. Although the cash sale to Mr. and Mrs. Dennis was made from "The Estate of Joseph McKellery and Agnes Jackson McKellery,” the 1920 partition document by which the one- and-one-half arpent tract was acquired by them is signed by Joseph McKelry and Agnes McKelry.

      .A copy of the Grant sketch was attached to the judgment.

      . He also said that Mary Ann Lee Billieu was a former owner of the disputed tract sold to Murrell in 1913.

      . Gaudet explained that the earliest documents were in French, and he had to translate them to get the complete abstract of title. Although the Dennises’ attorneys argued in briefs to this court that Gaudet admitted he could not translate French, this statement was inaccurate. The record shows that the question from the Dennises’ attorney was "Did [you] say [you] had to research through French records and translate?” Gaudet replied, "That’s correct.” The attorney then reiterated, "Translate?” And Gaudet again said, "That's correct.” He never said he was unable to make such a translation.

      . Gaudet also said all of the parcels were originally owned by former Governor Paul Hebert, who subdivided the parcels into smaller tracts.

      . Although Murrell had already acquired the Billieu property by the time of the Egerton partition, the Egerton property was described in terms of the earlier adjoining landowners, apparently because it is customary to maintain the exact same description in a transfer of immovable property in order to ensure the accuracy of the transfer. Therefore, the earlier property description was continued in the partition, rather than being updated to reflect the actual ownership (Murrell) as of 1920.

      .Our examination of the cash sale also shows that immediately following the property description are the following disclaimers:
      The parties hereto agree to hold said Notary harmless, as boundaries and dimensions were supplied to Notary by Vendor and Vendee herein.
      No title examination was requested or performed and all parties hold Notary herein harmless for any defects in the title to this property.
      We note also that the administrator of "The Estate of Joseph McKellery and Agnes Jackson McKellery” was Raymond Dennis, Jr., the Dennises' son, who represented the estate as the vendor of the property.

      . Langlois' testimony on the mathematical underpinnings of this estimate was, by his own admission, "backwards” when he first explained the computations.

      . We note that this testimony is obviously inconsistent with his earlier statement, since Langlois now estimated the properties claimed by the Dennises as three and one-half arpents, rather than the five arpents he had previously estimated. Either way, the area of the claimed property exceeded the described area in the property sale from the McKelry estate to the Dennises.

      . According to Webster’s Third New International Dictionary 120 (1968), an arpent is "any of various old French units of land area; esp: a unit still used in certain French sections of Canada and the U.S. equal to about 0.85 of an acre.” By this definition, one and one-half superficial arpents would be 1.275 acres.

      . We note that the Patín survey states that it was prepared "to show the subdivision of a 3.09 acre tract owned by Raymond and Irene Dennis into two tracts designated as Tract D-1 and Tract D-2.”


author: PER CURIAM.

text:
    Mark N. MATTHEWS v. The MILITARY DEPARTMENT for the STATE of Louisiana.
    No. 2007 CW 1337.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 24, 2007.
    Rehearing Denied Oct. 31, 2007.
    Scott G. Vincent, Assistant Attorney General, for AppellanVDefendant, Military Department for the State of Louisiana.
    J. Arthur Smith, III, Baton Rouge, for Appellee/Plaintiff, Mark N. Matthews.
    Before GAIDRY, McDONALD and McClendon, jj.
   PER CURIAM.

UWRIT GRANTED IN PART; WRIT DENIED IN PART. The trial court’s judgment dated June 13, 2007, denying the Exception of Lack of Subject Matter Jurisdiction and No Cause or Right of Action, or in the Alternative, Motion for Summary Judgment filed on behalf of the Military Department for the State of Louisiana is reversed to the extent that the trial court denied the exception/motion relative to the claim asserted under the Family Medical Leave Act and the whistleblowing claim concerning the State’s acquisition of the Gillis Long Hansen Disease Center. Plaintiff cannot proceed with his action under the self-care provision pursuant to 29 U.S.C. § 2612(a)(1)(D) of the Family Medical Leave Act insofar as Congress in adopting subsection (a)(1)(D) of the Act did not validly abrogate Louisiana’s Eleventh Amendment sovereign immunity. See Brockman v. Wyoming Dept. of Family Servs., 342 F.3d 1159 (10th Cir.2003), cert. denied, 540 U.S. 1219, 124 S.Ct. 1509, 158 L.Ed.2d 155 (2004). We also find that plaintiff is afforded no protection under La. R.S. 23:967 or 30:2027 for his reports relative to the State’s potential liability for acquisition of the Gillis Long Hansen Disease Center insofar as the reports were required as part of his normal duties. See Sasse v. U.S. Dept. of Labor, 409 F.3d 773 (6th Cir.2005). Also, plaintiffs allegations relative to the Gillis Long Hansen Disease Center indicate that plaintiff was merely expressing his concerns about the State’s potential liability in acquiring same, which concerns do not amount to whistleblowing. Moreover, plaintiff does not allege that he attempted to disclose or threatened to disclose State activity relative to the acquisition of the Gillis Long Hansen Disease Center that he reasonably believed to be in violation of an environmental law, rule, or regulation. See La. R.S. 30:2027(A)(1). UAccordingly, we grant the exception of no cause of action filed by the Military Department for the State of Louisiana and dismiss plaintiffs claims asserted under the Family Medical Leave Act and the whistle-blowing claim in regard to the State’s acquisition of the Gillis Long Hansen Disease Center. The writ is denied insofar as it seeks dismissal of plaintiffs whistleblower claims relative to the State’s mishandling of hurricane funds.


author: MARION F. EDWARDS, Judge.

text:
    Michael PALM and John Palm, Jr. v. ENCOMPASS INSURANCE COMPANY OF AMERICA and Albert Easterling, Jr.
    No. 07-CA-164.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 16, 2007.

      Hilary G. Gaudin, Elizabeth M. Gaudin, Gaudin & Gaudin, Gretna, Louisiana, for Plaintiffs/Appellants.
    Lucia G. Hawks, Law Office of Harold G. Toscano, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

pin this automobile accident case, plaintiffs/appellants appeal from the trial court’s judgment that held each party 50 percent liable for the collision that forms the basis of the suit. For the reasons that follow, we affirm.

On June 24, 2005, plaintiffs/appellants, Michael Palm (“Palm”) and John Palm, Jr., filed suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against defendants/appellants, Albert Easterling, Jr. (“Easterling”) and his insurer, Encompass Insurance Company, alleging injuries resulting from an automobile collision between Palm and Easterling that occurred on May 24, 2005.

Following a bench trial on September 11, 2006, the trial court found both Palm and Easterling 50 percent liable for the accident and further awarded Palm $1064 in medical specials, $883 in property damages, and $2500 in general damages, for a total of $3897.

Palm timely filed the present appeal.

|SA review of the record shows the parties stipulated that, prior to the September 11, 2006 trial, the amount of damages claimed by Palm was below the jurisdictional limit required for trial by jury. The parties further stipulated that the amount of medical bills incurred by Palm was $2128.

Easterling testified at trial. Easterling stated that, on May 24, 2005, he was involved in an automobile accident with Palm on the corner of Waltham and West Me-tairie in Jefferson Parish. Easterling stated that he was traveling southbound and attempted to cross West Metairie in order to make a left-hand turn into the eastbound lanes of West Metairie. Easterling agreed that the accident took place in the northbound lane of Waltham while he was attempting a left-hand turn.

On direct examination, Easterling testified that, as he entered the neutral ground between the lanes of West Metairie, he slowed down and put his turn signal on. He saw Palm’s vehicle approach the stop sign but did not recall if Palm’s vehicle actually stopped for the stop sign. East-erling said that he was halfway into his turn onto West Metairie when the collision occurred.

Palm testified next. Palm stated that he was traveling north on Waltham, which is a residential street with two-way traffic. He said that he stopped at the stop sign on Waltham for a few seconds, waited for an opportunity to cross the road, and then, when he proceeded to cross, he saw East-erling’s vehicle and applied his brakes pri- or to impact.

Palm testified that he was injured as a result of the accident and received treatment from Dr. Tucker, a chiropractor. Palm’s first visit to Dr. Tucker was about two weeks after the accident.

Palm said that he continued to work as a nurse after the accident but needed assistance in performing some of his duties. He also indicated that his weight lifting and flag football activities were curtailed because of his injuries.

|4Puring cross-examination, Palm indicated that the traffic on West Metairie at the time of the accident was medium to heavy. He said that he first saw Easter-ling’s vehicle when he approached the stop sign and that Easterling was also at a stop sign. Palm said that when he saw Easter-ling’s vehicle for the second time, it was approximately eight to ten feet away just prior to impact.

On appeal, Palm’s sole assignment of error is that the trial court failed to apply two legal presumptions that would have required a finding of 100 percent fault on the part of the defendant/appellant.

As he did at trial, Palm again asserts that, pursuant to LSA-R.S. 32:122, Easter-ling did not meet his burden to demonstrate that he was free from fault as a motorist making a left turn at an intersection. LSA-R.S. 32:122 provides that “[t]he driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard.”

Palm further argues that Easterling failed at trial to overcome the presumption of negligence that attached as a motorist who executed a left-hand turn and crossed the center line at the time of impact.

Conversely, Easterling asserts that he established at trial that Palm violated LSA-R.S. 32:123, which, in relevant part, states:

B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.

|REasterIing characterizes the trial testimony in support of his argument as follows:

Both drivers initially had the stop sign and both testified to stopping for the stop sign. However, Mr. Easterling was in the neutral ground area first; meanwhile Mr. Palm would still have been at the stop sign. Mr. Easterling no longer had the stop sign while in the neutral ground, but, at that point, Mr. Palm would have had the stop sign. Therefore, Mr. Palm had the duty to stop and not enter West Metairie at the time Mr. Easterling was in the neutral ground preparing to turn with his signal on.... As soon as there was an opening in West Metairie traffic, Mr. Palm rushed to the neutral ground without checking for the Easterling van.

Easterling further cites to the case of Decker v. Employers Liability Assurance Corp., in which the court noted:

We are fully aware of the jurisprudence to the effect that a motorist driving in a right of way street, in possession of knowledge that the intersecting street is controlled by a stop sign, has a right to assume that any driver approaching that intersection from the less favored street will observe the law and bring his vehicle to a complete stop before entering the intersection. Such motorist may indulge in this assumption until he sees, or should see that the other vehicle has or will not observe his obligation to stop.

Easterling concludes that the trial court was reasonable in assessing 50 percent fault against Palm in light of what it likely found was Palm’s failure to see what he should have seen and his failure to stay at the stop sign until it was safe to enter the intersection.

The assigning of percentages of fault is a factual determination and as such is subject to the manifest error standard of review. Fault may be reallocated by the appellate court only after it has found manifest error, and may be lowered or raised | Bonly to the highest or lowest point, which is reasonably within the trial court’s discretion.

The trial court had the opportunity to consider both Palm and Easterling’s theories of liability and negligence in this case and, further, heard the testimony of both Palm and Easterling regarding how the accident occurred.

As noted by the Louisiana Supreme Court in Stobart v. State through Dep’t of Transp. and Dev.

Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.... Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

After our review of the record, we cannot say that the trial court was manifestly erroneous in its determination of fault between the parties based upon the evidence and testimony presented.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. Each party is to bear its own costs on appeal.

AFFIRMED.

      . 247 So.2d 232, 234-35 (La.App. 4 Cir. 1971), writ refused, 258 La. 915, 248 So.2d 586 (1971) (footnote omitted).

      . Peck v. Wal-Mart Stores, Inc., 96-645 (La.App. 3 Cir. 11/6/96), 682 So.2d 974.

      . Rauch v. Schiavi, 00-160 (La.App. 5 Cir. 10/19/00), 772 So.2d 749, writs denied, 2000-3464, 2000-3472 (La.2/16/01), 786 So.2d 102.

      . 617 So.2d 880, 882-83 (La.1993) (some citations omitted).