author: AMY, Judge.

text:
    Joseph GRAHAM v. Catherine BERNHEIMER.
    No. 08-1132.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Tony C. Tillman, Leesville, LA, for Defendant/Appellee, Catherine Bernheimer.
    Scott Westerchil, Attorney at Law, Leesville, LA, for Plaintiff/Appellant, Joseph Graham.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL and JAMES T. GENOVESE, Judges.
   AMY, Judge.

11 This matter involves a dispute over property that lies between two adjacent tracts of land. A fence divides the two tracts; however, a survey reveals that the fence’s location encroaches upon the defendant’s land. Insofar as the plaintiff and his ancestors in title allegedly have possessed the land up to the fence for over thirty years, the plaintiff claimed ownership of the disputed property. The trial court ruled in favor of the defendant. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

This matter concerns two contiguous tracts of land. The plaintiff, Joseph Graham, owns the northern property (“the Graham property”), and the defendant, Catherine Bernheimer, owns the southern property (“the Trull property”). The plaintiffs parents, Ben and Docie Graham, purchased the forty-acre tract of land on June 19, 1941. The defendant acquired the Trull property from her brother, Car-rol Oscar Trull, on June 4, 1981. The trial court found that a fence was built between the Graham property and the Trull property some time prior to 1956. The location of this fence resulted in an encroachment on the northern line of the Trull property. The 93 encroaching feet on the west end of the property and the 23 encroaching feet on the east end constitute the property in dispute.

According to the plaintiffs testimony, his parents farmed and gardened on the Graham property up to the fence for as far back as he can remember. The record indicates that Docie Graham, the plaintiffs mother, died on June 5, 1974, and that Ben Graham, the plaintiffs father, died on December 22, 1974. The judgment of possession reveals that the Graham property was inherited by the surviving Graham children: namely, Joseph Graham, Bessie E. Graham Tisdale, Betty L. Graham | .¿Mitchell, George L. Graham, and Jesse E. Teel, who died in 1986. The plaintiff testified that he personally ran cows and stacked hay up to the fence for fifteen years. He stated that he stopped running cows about ten or fifteen years ago but continued to stack hay.

The plaintiffs brother-in-law, Malcolm Mitchell, Sr., testified that he and his wife lived in a trailer home on the Graham property next to the fence for three or four years beginning in 1960 and that he built a shop approximately ten or fifteen feet from the fence. He stated that he did not remember ever being told to get off the property.

The defendant’s brother, Carroll Trull, leased his property to Leland Murray in the early 1970s. Murray’s daughter and the plaintiff testified that while Murray was leasing the Trail property, a new fence was built in the same place that the old fence was located. The record shows that in 1976, a survey was conducted and a boundary line was established pursuant to the property owners’ deeds; the plaintiff testified, though, that the Graham family never recognized the survey line as the boundary between the two tracts of land. According to Joseph Graham’s testimony, some time in the late 1970s, Leland Murray leased some timber from him. The trial court found that Mr. Murray only cut timber up to the boundary set in the survey, not all the way to the fence.

The record shows that Charles Wise surveyed the property again in 1993. Pursuant to the boundaries set in the 1993 survey, the defendant leased her land, including the property in dispute, to the plaintiff for one dollar annually. Two leases were executed in January 1994 and January 1997, respectively. The lease agreements established that the lease would “continue from year to year unless either party [gave] ^ninety (90) days written notice of their intention to terminate [the] lease.” The record does not contain any evidence of notice by either party. The plaintiff acknowledged that he leased the land from the defendant.

The record reveals that the defendant sold timber on her property in 2004; as a result, part of the fence was removed and the timber was cleared on the north side of the fence. The plaintiff instituted this suit on November 30, 2005. On September 26, 2006, the succession of Ben and Docie Graham was concluded and the judgment of possession was entered in favor of the five Graham children. On December 23, 2006, the land was divided pursuant to a voluntary partition deed, wherein the plaintiff was granted ownership of the portion of the Graham property that includes the land in dispute.

After a trial, the trial court ruled in favor of the defendant; it found that the plaintiff did not possess the property in his own right for thirty years, in light of the fact that prescription was interrupted when he leased the property from the defendant and thereby acknowledged the defendant’s ownership. Concerning the plaintiffs ability to tack the inherited possession onto his own possession, the trial court found that the interest of his deceased brother had never been reconciled. Accordingly, it concluded that because plaintiff was not authorized to tack his ancestor’s possession, he could not prove ownership via thirty-year acquisitive prescription. Seeking to introduce the deed of his deceased brother’s property interest, the plaintiff filed a Motion for New Trial, which was subsequently denied. The plaintiff appeals, asserting the following assignments of error:

1) [T]he trial court erred in ruling that the appellant, Joseph Graham could not tack the possession of his ancestors in title, and therein granting judgment in favor of the defendant and appellee, Catherine Bernheimer.
|42) In the event that this Honorable Court does not find merit in appellant’s assignment of error number one, appellant contends that the trial court erred in denying the appellant’s Motion for New Trial, and not allowing appellant to file the deed of Jesse E. Teel, appellant’s brother, which would have cured the trial court’s concerns about tacking possession of ancestors in title, referenced in assignment of error number one.

Discussion

Standard of Review and Burden of Proof

The issues in this case primarily center around acquisitive prescription. This court set forth the applicable standard of review in Lowery v. Herbert, 04-1399, p. 2 (La.App. 3 Cir. 7/20/05), 909 So.2d 648, 650: “Whether a party has adversely possessed property for purposes of thirty years acquisitive prescription is a factual determination which will not be disturbed in the absence of manifest error.”

“Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.” La.Civ.Code art. 3446. “Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” La.Civ.Code art. 3486. “For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed.” La.Civ.Code art. 3487. “Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” La.Civ.Code art. 3464.

“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles.” La.Civ.Code art. 794. “If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than them title called for, the boundary shall be fixed along these bounds.” Id.

| sIn Fontenot v. Duplechain, 02-323, p. 4 (La.App. 3 Cir. 10/2/02), 827 So.2d 563, 565, (quoting Crowell Land & Mineral Corp. v. Funderburk, 96-1123, pp. 3-4 (La.App. 3 Cir. 3/5/97), 692 So.2d 535, 537, writ not considered, 97-901 (La.5/9/97), 693 So.2d 776) this court stated:

The party asserting acquisitive prescription bears the burden of proving all of the essential facts to support it. Phillips v. Fisher, 93-928 (La.App. 3 Cir. 3/2/94), 634 So.2d 1305, writ denied, 94-0813 (La.5/6/94); 637 So.2d 1056. The adverse possessor must prove that he intended to possess the property as owner. Id. “A possessor will only be considered as possessing that part of property over which he exercises actual, adverse, corporeal possession which is continuous, uninterrupted, peaceable, public, unequivocal, and within visible bounds.” Id. at p. 3; 634 So.2d at 1307; La.Civ. Code art. 3476.

Ass ignment of Error Number One

The plaintiff put forth evidence and testimony regarding the fact that the Graham ancestors in title never acknowledged the boundary set by the survey and the deeds as the actual dividing line between the two tracts of land. Accordingly, we will address the issue of whether the plaintiff and/or his family acquired the disputed land via acquisitive prescription. Insofar as the plaintiff does not appeal the trial court’s determination that the plaintiff did not prove thirty-year acquisitive prescription in his own right, we will only evaluate his claim concerning prescription via tacking.

In light of the plaintiffs claim and for the purposes of thirty-year acquisitive prescription, prescription began to run once the fence was built. See Allen v. Belgard, 05-1284 (La.App. 3 Cir. 4/5/06), 925 So.2d 1275, wherein the court set forth the legal principle that requires a person claiming ownership without title to show adverse possession by enclosure. The trial court found that the fence was built some time prior to 1956. Testimony establishes that the plaintiffs parents possessed the Graham property up to the fence, insofar as they gardened and farmed on the land. | sThe plaintiffs ownership, then, turns on the issue of tacking his own possession to that of his parents.

A universal successor continues the possession of the deceased. La.Civ.Code art. 936. Because the plaintiff was one of six heirs, the trial court, in its written reasons for judgment, correctly posed the following question: “whether the partition deed executed by four of the five Graham heirs would have conferred upon plaintiff the other heirs’ rights of accrued possession inherited by them from their parents[?]” In answer to this question, the trial court cited to Noel v. Jumonville Pipe and Machinery Company, Inc., 245 La. 324, 158 So.2d 179, in which the supreme court determined that one hem who had obtained the land contiguous to the disputed tract via a sale by the other seven heirs was entitled to continue his father’s possession for purposes of acquisitive prescription. The trial court distinguished the instant case from Noel, 158 So.2d 179, insofar as the “interest of Jesse E. Teel, heir to this property, has never been reconciled. The affidavit of death and heirship shows that he died in 1986 and is silent as to whether any heirs survived him. Without some specific authorization by the heirs or estate of Jesse E. Teel, plaintiff is not entitled to tack his ancestors’ possession to that of his own.”

Co-owners are precarious possessors as to each other. Hooper v. Hooper, 06-825 (La.App. 3 Cir. 11/2/06), 941 So.2d 726, writ denied, 06-2823 (La.1/26/07), 948 So.2d 177. “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.” La.Civ.Code art. 3439. Recordation of an act of partition has been held to be sufficient notice. See Dupuis v. Broadhurst, 213 So.2d 528 (La.App. 3 Cir.1968). Consequently, the plaintiff gave sufficient notice to the 1 ysiblings who joined in the voluntary partition. However, no evidence exists in the record indicating that Jesse E. Teel’s estate and/or descendants were given such notice. Without that information, the plaintiff was still a precarious possessor as to his deceased brother’s estate; thus, Joseph Graham could not claim ownership for himself via tacking. Accordingly, the plaintiffs first assignment of error is without merit.

Assignment of Error Number Two

In his second assignment of error, the plaintiff asserts that the trial court erred in denying his Motion for New Trial, which would have allowed him to introduce the deed of his deceased brother. La.Code Civ.P. art.1972 provides:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has been done.

Further, La.Code Civ.P. art 1973 provides, “A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” In Joseph v. Broussard Rice Mill, Inc., 00-628 (La.10/30/00), 772 So.2d 94, the supreme court recognized the trial court’s great discretion in deciding whether a Motion for a New Trial should be granted, and it stated that the applicable standard of review requires the appellate court to evaluate whether the trial court abused that discretion.

| ¡Applying La.Code Civ.P art.1972 and La.Code Civ.P. art.1973, we find that the trial court did not abuse its discretion in denying the plaintiffs Motion for New Trial, in light of the fact that the deed of Jesse E. Teel was available to the plaintiff during the course of the trial. See Henderson v. Sellers, 03-747, p. 8 (La.App. 3 Cir. 12/17/03), 861 So.2d 923, 929, wherein this court held that “[t]he trial court did not abuse its discretion by refusing to grant a new trial for the purpose of introducing evidence that was available at the time of the trial.” Accordingly, the plaintiffs second assignment of error lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to the appellant, Joseph Graham.

AFFIRMED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Greg Thomas LAFLEUR v. James Orville BLUE, et al.
    No. CA 08-1147.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Stanford B. Gauthier, II, Jonathan D. Mayeux, Kristi Husher Oubre, Nicole La-Borde Romero, Lafayette, LA, for Plaintiff/Appellant, Greg Thomas Lafleur.
    Barry J. Heinen, Lafayette, LA, for Defendant/Appellee, Michael J. Breaux & Associates, Inc.
    Jeffrey Ackermann, Durio, MeGoffin, Stagg & Ackermann, Lafayette, LA, for Defendants/Appellees, James Orville Blue, Earline Bourque Blue.
    John Stafford Irion, Jr., Lafayette, LA, for Defendants/Appellees, John Raymond Johnson Managing Investments, Inc.
    Lawrence Charles Billeaud, Lafayette, LA, for Defendant/Appellee, Craig Spikes.
    Jeremy A. Hebert, Richard L. Becker, Marcus L. Fontenot, Becker & Associates, Lafayette, LA, for Defendant/Appellee, Lafayette Consolidated Government.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

11 Greg Thomas Lafleur appeals a trial court judgment which granted an exception of prescription in favor of the Lafayette Consolidated Government (LCG). Mr. Lafleur filed suit against the LCG for negligently approving a plat when the FEMA map clearly indicates that Lot 3 was situated in a floodway.

FACTS

On September 30, 1997, John Raymond Johnson and his wife purchased land located in Lafayette Parish. Subsequently, Mr. Johnson incorporated Managing Investments, Inc. (Mil) in order to develop and market the land as a residential subdivision. At the end of 1997, Mil engaged Craig Spikes to survey the land for the purpose of subdividing the land into four lots. Mr. Spikes prepared a plat which he dated January 20, 1998. The plat indicated that the property was located in flood zone AE. The plat was approved by the Lafayette Planning and Zoning Commission and was filed in the clerk’s office on January 26,1998.

In 2000, James and Earline Blue bought Lot 3 of the development. On October 24, 2003, the Plaintiff, Greg Thomas Lafleur, bought Lot 3 from the Blues. At the hearing, Mr. Lafleur testified that he bought Lot 3 to eventually build a house on.

Approximately six months after Mr. La-fleur purchased the lot, he applied for and received a permit to place culverts in the ditches on the two sides of his property. In September 2006, he decided to sell the property. In checking on the possibility of building a house on the property, potential buyers made inquiries about the property and discovered that part of the lot was in a floodway. The buyer decided not to buy the lot.

Mr. Lafleur then did an investigation on his own. He found out that about half of the property is located in a floodway, and, in order for him to obtain a residential 12building permit, he would have to obtain a no-rise certificate from an engineer. This is a certificate from a licensed engineer certifying that construction on the property located in the floodway would not obstruct the flow of waters through the floodway. Mr. Lafleur testified that he was told a survey for a no-rise certificate could cost $20,000.

On May 7, 2007, Mr. Lafleur filed suit against the Blues, the LCG, and Michael J. Breaux & Associates, Inc., the company that LaFleur hired to conduct a stakeout of the lot corners and complete an elevation certificate. In addition to claiming a redhibitory defect, he alleged that the LCG negligently approved the plat as there is no floodway indicated on the plat. On March 10, 2008, the Blues filed a third-party demand against Mil and Mr. Johnson. In turn, on April 21, 2008, Mil and Mr. Johnson filed a third-party demand against Mr. Spikes and the LCG.

Both the LCG and Mr. Spikes filed exceptions. A hearing on the exceptions was held on May 27, 2008. The trial court overruled the exceptions of no cause of action filed by both the LCG and Mr. Spikes. The trial court then granted an exception of prescription filed by the LCG and also granted an exception of no right of action raised by Mr. Spikes. Judgment was signed on May 27, 2008, and Mr. Lafleur appealed the judgment.

DISCUSSION

Mr. Lafleur claims the trial court erred in granting the LCG’s exception of prescription. He argues that he filed a timely suit from the time he knew that his property was located in a floodway.

“Delictual actions are subject to a libera-tive prescription of one year.” La.Civ.Code art. 3492. The one-year prescriptive period for damage to immovable property begins to run “from the day the owner of the immovable acquired, or should 13have acquired, knowledge of the damage.” La.Civ.Code art. 3493.

Ordinarily, the burden of proof is on the party pleading prescription. Petry v. Hebert, 06-1447 (La.App. 3 Cir. 5/2/07), 957 So.2d 286. However, when the plaintiffs petition has clearly prescribed on its face, the burden then shifts to the plaintiff to prove that prescription has been suspended or interrupted. Id.

The suit was filed nine years after the plat was approved by the LCG and three- and-one-half years after Mr. Lafleur purchased the property. Mr. Lafleur argues that his claim has not prescribed because he did not find out that Lot 3 was situated in a floodway until September 7, 2007, when he was informed that Lot 3 was in a floodway by potential buyers. He claims that the trial court ignored the LCG’s duty to indicate a floodway on the plat. He argues that the doctrine of contra non valentum suspended the running of prescription because he had no knowledge that part of his land was situated in a floodway until he was informed of this fact by the potential buyers of the property.

There are four jurisprudentially-created circumstances that halt the running of prescription under the doctrine of contra non valentum:

1. When there is some legal cause that has prevented the courts from taking cognizance of or acting on the plaintiffs actions;
2. Where there is some condition of the contract or connected to the proceedings which prevented the creditor from acting;
3. When the defendant has prevented the plaintiff from bringing suit; and
4. When the plaintiff does not know nor reasonably know, even though his ignorance is not induced by the defendant.

Carter v. Haygood, 04-646 (La.1/19/05), 892 So.2d 1261, 1268; Stevens v. Bruce, 04-133 (La.App. 3 Cir. 6/2/04), 878 So.2d 734. In the present case Mr. Lafleur has alleged 14a claim that falls under the fourth category, which has become known as the “discovery rule.”

A plaintiff need not have actual knowledge of the conditions which might entitle him to bring suit, but only “constructive notice.” As a general rule, prescription begins to run from the time there is notice enough to call for inquiry about a claim, not from the time when the inquiry reveals facts or evidence sufficient to prove the claim. However, a plaintiff will be deemed to know what he could have learned by reasonable diligence, and contra non valentum will not apply to except the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect.

Terrel v. Perkins, 96-2629, pp. 5-6 (La.App. 1 Cir. 11/7/97), 704 So.2d 35, 39 (citations omitted).

Louisiana Revised Statutes 33:5051 provides for the procedures in platting land. Section B specifically sets forth the items that the plat shall contain. There is no requirement that the plat contain any information about a floodway. Louisiana Revised Statutes 33:113 provides for the approval of the plat by the planning commission and does not contain any requirement that a floodway be listed on the plat.

Mr. Lafleur has cited no authority that the LCG was required to indicate on the plat that a portion of Lot 3 was in a floodway. A review of the arguments at the hearing indicates that there was no requirement at the time the plat was recorded that the fact that land is located in a floodway be included on the plat.

Furthermore, the plat does indicate that the property is located in flood zone AE. This information should have alerted Mr. Lafleur, and he should have researched the issue a little more. With some investigation before they bought the land, the potential buyers of his property were able to find out that the property was located in a floodway. Mr. Lafleur could have done likewise.

We agree with the trial court that Mr. Lafleur’s action against the LCG has | ¡^prescribed. No authority is cited that the LCG was required to indicate that a portion of Lot 3 was in a floodway. Mr. Lafleur was on notice that the property was in a flood zone. Further investigation by Mr. Lafleur would have revealed that it was in a floodway when he bought the property. Therefore, the trial court was correct in granting LCG’s exception of prescription.

We also note that a brief was filed on behalf of Mr. Spikes arguing that his dismissal on an exception of no right of action was proper and raising the issue that the trial court committed manifest error in denying his exception of no cause of action. We first note that neither Mr. Lafleur, nor anyone else, has appealed the decision of the trial court to granting the exception of no right of action in favor of Mr. Spikes, so that judgment is final. Also, Mr. Spikes did not file an appeal nor answer Mr. Lafleur’s appeal, so he cannot seek relief in the appellate court. La.Code Civ.P. art. 2133. Therefore, it is not necessary for us to address the issues raised by Mr. Spikes.

For the reasons set forth in this opinion, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Greg Thomas Lafleur.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Tina SMOOT, Individually and on Behalf of Her Minor Children, Malcolm Smoot and Coretta Smoot, and Elizabeth Bennett and Aaron Bennett v. Ken HERNANDEZ, et al.
    No. 2008-1121.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Brian M. Caubarreaux, Derrick G. Earles, Emily G. Meche, Brian Caubar-reaux and Associates, Marksville, LA, for Plaintifl/Appellee, Tina Smoot.
    Harry J. Philips, Jr., Cynthia M. Ame-dee, Taylor Porter Brooks & Phillips L.L.P., Baton Rouge, LA, for Defendants/Appellants, Ken Hernandez and Employers Mutual Casualty Company.
    Jeffery Ingram, Alexandria, LA, for Defendant/Appellee, State Farm Fire & Casualty Company.
    Court composed of MARC. T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 In this personal injury case, Defendants appeal the trial court’s grant of Plaintiffs Motion for Judgment Notwithstanding the Verdict and Alternatively Motion for New Trial and/or Additur (JNOV) and its subsequent award of general damages and future medical expenses. Plaintiff attempted to answer the appeal, seeking modification of the general damage award. Defendants moved to strike Plaintiffs answer to appeal. For the following reasons, we affirm the trial court’s grant of the JNOV, affirm the trial court’s award of general damages, affirm the trial court’s award of future medical expenses, and strike Plaintiffs answer to appeal.

FACTS

On November 1, 2006, in Bunkie, Louisiana, Plaintiff, Tina Smoot, was involved in an automobile accident with Defendant, Ken Hernandez, who was in the course and scope of his employment with Tommy Williams Plumbing at the time of the accident. Ms. Smoot, individually, and on behalf of her minor children, Malcolm Smoot and Coretta Smoot, Elizabeth Bennett, and Aaron Bennett, instituted the present action against Mr. Hernandez, Employers Mutual Casualty Company, the liability insurer of Tommy Williams Plumbing (hereinafter collectively referred to as Mr. Hernandez), and State Farm Fire and Casualty Company, Ms. Smoot’s own uninsured/underinsured insurer. State Farm Mutual Automobile Insurance was also later added as a defendant in its capacity as the liability insurer of Mr. Hernandez.

Following a stipulation as to the liability of Mr. Hernandez, the claims of Ms. Smoot proceeded to trial by jury on April 2-3, 2008. The jury returned a verdict in | ¿favor of Ms. Smoot in the amount of $101,228.70 for past medical expenses only. The jury did not award any amount for general damages or future medical expenses. The trial court signed a judgment in accordance with the jury verdict on April 11, 2008.

On April 18, 2008, Ms. Smoot filed a Motion for Judgment Notwithstanding the Verdict and Alternatively Motion for New Trial and/or Additur. Following a hearing on May 9, 2008, the trial court granted the JNOV, affirmed the jury award of $101,228.70 representing past medical expenses, awarded $10,000.00 in future medical expenses, and awarded $250,000.00 in general damages, for a total award of $361,228.00 in favor of Ms. Smoot. The trial court signed a judgment in accordance therewith on January 16, 2008, and Mr. Hernandez appealed. Ms. Smoot attempted to answer the appeal, and Mr. Hernandez filed a motion to strike same. The motion to strike was referred to the merits.

ISSUES

Mr. Hernandez raises the following issues for our review:

1. Whether the trial court erred as a matter of law in granting a motion for judgment notwithstanding the verdict in favor of Plaintiff-Appel-lee[,] Tina Smoot.
2. If the JNOV was otherwise proper as a matter of law, whether the trial court abused its discretion in awarding an excessive amount for general damages and future medicals to Plaintiff-Appellee[,] Tina Smoot.[]
CLAW AND DISCUSSION
The mechanism by which a judgment notwithstanding the verdict may be granted is provided by La.Code Civ.P. art. 1811.[] In ^describing the circumstances under which a JNOY is appropriate, the Louisiana Supreme Court has explained that the procedure is to be used only when the facts and circumstances favor one party so overwhelmingly that reasonable men could not arrive at a contrary verdict. Anderson v. New Orleans Public Service, 583 So.2d 829 [ (La.1991) ]. It is inappropriately used in cases in which the evidence merely preponderates in favor of the moving party. Id. Also, we are mindful that the motion must not be granted if there is evidence in opposition that is of such quality and weight that it would permit “reasonable and fairmind-ed men in the exercise of impartial [judgment]” to reach different conclusions. Id. at 882. Finally, the court cautioned that, in weighing whether a JNOV is appropriate, the court should not weigh witness credibility and should resolve all reasonable inferences/factual questions in favor of the non-moving party. Id. See also Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00); 774 So.2d 84.
On review, an appellate court employs a two-part inquiry when considering whether a JNOV is appropriate. Davis, 00-445; 777 So.2d 84. First, applying the same criteria as the trial court, the appellate court must determine if the trial court erred in granting the motion. Id. Next, if the appellate court determines that the standard was correctly applied to the jury verdict at the trial level, the appellate court must then review the JNOV granted using the manifest error standard of review. Id.

Bowie v. Young, 01-715, p. 12 (La.App. 3 Cir. 3/20/02), 813 So.2d 562, 570-71, writ denied, 02-1079 (La.6/21/02), 819 So.2d 335.

GRANT OF JNOV

Mr. Hernandez contends that the trial court committed legal error in granting the JNOV. For the following reasons, we find that the trial court’s grant of the JNOV entered on general damages and future medical expenses was warranted. We, therefore, affirm the trial court’s grant of the JNOV in favor of Ms. Smoot.

As this court stated in Murchison v. Lyndon Property Insurance Co., 04-933, p. 3 (La.App. 3 Cir. 12/30/04), 896 So.2d 214, 217-18, writ denied, 05-274 (La.5/13/05), 902 So.2d 1016:

Louisiana Code of Civil Procedure Article 1811 controls the use of a judgment notwithstanding the verdict (JNOV). Although the Article does not specify the grounds on which a trial judge may grant a JNOV, |ñthe supreme court in Joseph v. Broussard Rice Mill, 00-628 (La.10/30/00), 772 So.2d 94, sets forth the criteria in determining when a JNOV is proper. A JNOV is proper when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. Id.

As explained by our supreme court, “[t]he motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover.” Trunk v. Med. Ctr. of Louisiana at New Orleans, 04-181, p. 4 (La.10/19/04), 885 So.2d 534, 537 (quoting Joseph, 772 So.2d at 99).

General Damages

In the case at bar, the jury awarded Ms. Smoot special damages in the amount of $101,228.70, constituting past medical expenses which she incurred as result of the subject accident. However, the jury did not render an award of general damages. Mr. Hernandez asserts on appeal that the jury’s failure to award Ms. Smoot any amount of general damages was “not abusively low or unreasonable.” Rather, he contends that the jury’s verdict was the result of the evidence presented at trial demonstrating that:

(1) Smoot had a long, pre-existing history of back and leg pain unrelated to the accident at issue; (2) the medical experts disagreed as to whether the lumbar fusion that Smoot elected to have was even medically necessary; (3) the jury’s award of zero general damages and future medicals was factually correct; (4) Smoot’s credibility was seriously challenged and found to be deficient; and (5) Smoot failed to mitigate her damages by being non-compliant with her treating physician’s recommended course of treatment.

Ms. Smoot argues that “Louisiana jurisprudence has long held that where there is a factual finding that a plaintiff was injured and incurred medical expenses as a result of another’s fault, the failure to award general damages is legal error unless special damages have been incurred without attendant physical pain and suffering.” | r,Specifically referring to a JNOV, Ms. Smoot contends that “[a] judgment notwithstanding the verdict is also warranted where a jury finds that a plaintiff has sustained new injuries or aggravation of a preexisting condition and awards past and future medical expenses, but award[s] no general damages.” Mindful of the standards set forth above relative to a JNOV, we have thoroughly reviewed the record of these proceedings.

On the evening of the accident at issue, Ms. Smoot presented to the emergency room at the Bunkie General Hospital. The following day, November 2, 2006, she saw her family physician, Dr. Newell Gau-thier. Ms. Smoot underwent conservative treatment with Dr. Gauthier. However, due to continuing complaints, Dr. Gauthier ordered an MRI which revealed disc herni-ations at L4-5 and L5-S1. Dr. Gauthier then referred Ms. Smoot to Dr. Louis Blanda, an orthopedic surgeon, who then became Ms. Smoot’s primary caretaker for any accident related injuries.

Ms. Smoot first saw Dr. Blanda April 10, 2007. After physical therapy, steroid injections, and additional testing, including nerve conduction studies and a cervical MRI which revealed disc herniations at C4-5 and C6-7, Dr. Blanda ultimately performed a two-level lumbar disc fusion on Ms. Smoot in February of 2008. Dr. Blan-da’s observations during surgery confirmed the lumbar disc herniations which had been revealed by the diagnostic testing.

What is indisputable from the record is that Ms. Smoot had a two-level disc herniation for which she underwent a lumbar fusion. The jury obviously accepted this fact and awarded her the past medical expenses which she incurred through the date of trial. However, the jury declined to award any amount of general damages. Mr. Hernandez asserts that the jury did not award any general damages because they were |7of the opinion that the accident at issue did not cause her injury. In support of his position, Mr. Hernandez notes that the medical records and testimony of Dr. Gauthier reveal that Ms. Smoot had been involved in two prior automobile accidents. Moreover, Mr. Hernandez asserts that this evidence establishes that Ms. Smoot suffered from back pain, leg pain, and foot pain prior to the accident. Given her preexisting condition, and what he contends was a failure to follow recommended treatment, Mr. Hernandez concludes that the jury was correct in not awarding Ms. Smoot any amount of general damages. We disagree.

On the issue of causation, Dr. Gauthier testified that more probably than not Ms. Smoot sustained a neck and back injury as a result of this particular automobile accident. Dr. Gauthier had treated Ms. Smoot for approximately thirty-five years and was well-acquainted with her medical history. Despite her complaints prior to the subject accident, which Dr. Gauthier acknowledged, he was of the opinion that they were not the same as those Ms. Smoot exhibited after the subject accident.

Consistent with Dr. Gauthier’s medical opinion relative to causation was the medical opinion of Dr. Blanda. Dr. Blanda was also very clear on the issue of causation, testifying as follows:

Q. Doctor based on this history and the review of the records of Dr. Gauthier, do you feel more probable than not that this these [sic] injuries that Ms. Smoot had after the accident and the result[ant] surgery are related to the automobile accident of November of 06?
A. I do. I think she may have some degenerative changes which is part of the aging process and wear and tear but I think the, the disc problems developed after this accident.

The expert medical opinions of Dr. Gau-thier and Dr. Blanda on the causal relationship of Ms. Smoot’s herniated discs were not refuted by Dr. Todd Drury, an orthopedic surgeon chosen by Mr. Hernandez to perform an independent medical 18examination on Ms. Smoot on December 3, 2007. In Dr. Drury’s opinion, Ms. Smoot’s medical history confirmed similar symptoms which predated the subject accident. Dr. Drury also testified that even with the diagnostic testing, there was no way to determine with certainty when the disc herniations occurred. Dr. Drury testified as to several reasons why he would not have recommended surgery for Ms. Smoot and discussed in some detail the additional conservative treatment options which were available to her. However, the testimony of Dr. Drury did not provide the jury with an expert medical opinion that the automobile accident of November of 2006 was not the cause of Ms. Smoot’s injuries.

According to Dr. Blanda’s testimony, the surgery was successful in relieving Ms. Smoot’s pain and numbness, and she was progressing well. He did testify, however, that she would periodically have flare-ups. Dr. Blanda was going to continue to treat Ms. Smoot for approximately one year to monitor her progress. He testified that she was on prescription medication and “probably will be so for a while.” Dr. Blanda also foresaw the need for additional medication, testing, and treatment in the future.

We find no merit to Mr. Hernandez’s contention that the trial court erred in its granting of the JNOV in favor of Ms. Smoot on the element of general damages. The jury was presented with evidence that Ms. Smoot suffered neck and back pain following the accident for which she first saw Dr. Gauthier. Due to her continuing complaints and the results of the diagnostic testing, Ms. Smoot was then treated by Dr. Blanda. The evidence established that Ms. Smoot sustained herniated discs which were caused by the subject accident. This is true despite any pre-existing complaints which she had. Additionally, as a direct result of the herniated discs, Ms. Smoot | sunderwent a two-level lumbar disc fusion. Dr. Blanda testified that there were objective findings of injury and complaints of pain which were consistent with his operative findings of herniated discs and nerve root compression. Dr. Blanda further testified that Ms. Smoot was to expect future exacerbations requiring treatment. Having thoroughly reviewed the record, we find that the facts and inferences point so strongly and overwhelmingly in favor of Ms. Smoot that reasonable persons could not conclude that she did not sustain at least an aggravation of a pre-existing injury with resulting pain and suffering thereby entitling her to a general damage award.

Future Medical Expenses

The trial court’s grant of the JNOV included an award of future medical expenses. Although the jury declined to award Ms. Smoot any amount of this element of damages, the trial court rendered an award of $10,000.00 in future medical expenses. Mr. Hernandez contends on appeal that the trial court erred in granting the JNOV on this element of damages.

A review of the record establishes that reasonable persons could not reach the conclusion that Ms. Smoot will not incur any future medical expenses. It was the testimony of Dr. Blanda that he would continue to follow her progress for approximately one year. Additionally, he stated that future exacerbations were to be expected. As such, Ms. Smoot would require additional medication, physical therapy, or other forms of treatment, which will result in Ms. Smoot’s incurring future medical expenses not unreasonably feed by the trial court at $10,000.00. For these reasons, we affirm the trial court’s grant of the JNOV relative to future medical expenses.

QUANTUM

In the alternative, Mr. Hernandez argues that should this court affirm the trial |incourt’s grant of the JNOV, that the trial court erred in awarding Ms. Smoot $250,000.00 in general damages and $10,000.00 in future medical expenses. We disagree.

General Damages

Having determined that the trial court was correct in granting the JNOV, we must consider whether the $250,000.00 general damage award was an abuse of its discretion.

Damages awarded after a motion for JNOV is granted are subject to the following guidelines:
Once a trial court has concluded that JNOV is warranted because reasonable men could not differ on the fact that the award was either abusively high or abusively low, it must then determine what is the proper amount of damages to be awarded. In making this determination, the judge is not constrained as the courts of appeal are to raising (or lowering) the award to the lowest (or highest) point which is reasonably within the discretion afforded the court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).
The appellate court, in determining whether the trial court erred in granting the JNOV as to quantum, once again uses the criteria set forth in [Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986)], i.e., could reasonable men in the exercise of impartial judgment differ as to the fact that the jury award was either abusively high or abusively low. If the answer is in the affirmative, then the trial court erred in granting the JNOV, and the jury’s damage award should be reinstated. On the other hand, if the answer is in the negative, then the trial court properly granted the JNOV, and its damage award based on its independent assessment of the damages is the judgment of the trial court which is reviewed on appeal under the constraints of Coco [v. Winston Industries, Inc., 341 So.2d 332 (La.1976) ].
Anderson, 583 So.2d at 833-34.

Bowie, 813 So.2d at 572-73.

| u The medical evidence established that Ms. Smoot underwent a successful two-level lumbar fusion. The trial court opined that “general damage[ ] awards on these type of injuries with surgery, [are] all over the board.” According to the trial court, the awards which he reviewed ranged from $125,000.00 to $400,000.00. Ultimately, after considering the particular facts in this case, the trial court awarded $250,000.00 in general damages. Based upon our review of the record as discussed in detail above, we cannot say that the amount of general damages awarded by the trial court was an abuse of its vast discretion.

Future Medical Expenses

Mr. Hernandez contends that the trial court’s award of $10,000.00 in future medical expenses was excessive. We, therefore, review the trial court’s award of future medical expenses pursuant to its grant of the JNOV using the manifest error standard of review. Boxie v. Lemoine, 07-905 (La.App. 3 Cir. 7/16/08), 988 So.2d 309, writs denied, 08-2014, 08-2019 (La.11/10/08), 996 So.2d 1071, (citing Davis, 774 So.2d 84).

The amount of future medicals which Ms. Smoot may expect to incur was the subject of Dr. Blanda’s testimony. As explained above, Dr. Blanda testified as to the necessity for his continued treatment of Ms. Smoot. Additionally, it was his testimony that additional medication, therapy, and testing were to be expected in the future. Based upon this evidence, we find no manifest error in the trial court’s award of $10,000.00 in future medical expenses.

MOTION TO STRIKE ANSWER TO APPEAL

In response to the Answer to Appeal and Opposition to Original Brief filed with this court by Ms. Smoot, Mr. Hernandez filed a motion to strike the answer to appeal. |12In support of his motion to strike, Mr. Hernandez asserts that Ms. Smoot’s filing of an Answer to Appeal in the trial court was deficient due to the trial court’s lack of jurisdiction. Additionally, he contends that the Answer to Appeal and Opposition to Original Brief which was filed with this court fails to comply with the requirements of La.Code Civ.P. art. 2133. We agree and grant Mr. Hernandez’s motion to strike Ms. Smoot’s answer to appeal.

The record reflects that the trial court granted Mr. Hernandez’s appeal on July 16, 2008, and the suspensive appeal bond was filed contemporaneously therewith. At that time, in accordance with La.Code Civ.P. art. 2088, the trial court became divested |inof jurisdiction over all matters on appeal. An Answer to Appeal was subsequently filed by Ms. Smoot in the trial court, i.e., the Twelfth Judicial District Court, on September 16, 2008. Although this filing was within fifteen days of the lodging of the record, the trial court no longer had jurisdiction. Thus, the Answer to Appeal filed on behalf of Ms. Smoot in the Twelfth Judicial District Court, although timely, was improvidently filed in the wrong tribunal. Therefore, the Answer to Appeal filed by Ms. Smoot in the trial court is not properly before this court.

Additionally, the Answer to Appeal and Opposition to Original Brief which was filed with this court on October 23, 2008 is deficient for two other reasons. First, as previously stated by this court, “[a] brief submitted by the appellee does not satisfy the requirement of [La.Code Civ.P. art. 2133.] (citation omitted).” Broussard v. Leger, 624 So.2d 1304, 1307 (La.App. 3 Cir.1993), writ denied, 93-2762 (La.1/7/94), 631 So.2d 452 (quoting Sears, Roebuck & Co. v. Appel, 598 So.2d 582, 584 (La.App. 4 Cir.1992)). Although Ms. Smoot’s Answer to Appeal and Opposition to Original Brief J^states that Ms. Smoot was entitled to a modification of the general damage award, it was erroneously set forth in the brief and not a pleading. As such, it is insufficient to satisfy the requirements of an answer to appeal. Secondly, the Answer to Appeal and Opposition to Original Brief is deficient for its failure to satisfy the time requirements of La.Code Civ.P. art. 2133. This court has previously held that it will not consider an answer to appeal that is filed more than fifteen days after the return date or date of lodging, whichever is later. Martin v. G. & A Limited, I, 604 So.2d 1014 (La.App. 3 Cir.), writs denied, 607 So.2d 557 (La.1992). For the foregoing reasons, we find that Ms. Smoot’s answer to appeal seeking a modification of the general damages awarded by the trial court pursuant to the JNOV is not properly before this court and will not be considered.

DECREE

For the foregoing reasons, the trial court’s grant of the JNOV in favor of Tina Smoot is affirmed. The trial court’s award of $250,000.00 in general damages is affirmed. The trial court’s award of $10,000.00 in future medical expenses is also affirmed. Additionally, the Motion to Strike Appellee Tina Smoot’s Answer to Appeal is granted. Costs of this appeal are assessed to Ken Hernandez and Employers Mutual Casualty Company.

AFFIRMED.

MOTION TO STRIKE ANSWER TO APPEAL GRANTED.

      . State Farm Fire and Casualty Company was erroneously identified in the original petition as State Farm Mutual Automobile Insurance Company.

      . Aaron Bennett was dismissed as a plaintiff pursuant to a Motion and Order For Partial Dismissal which was signed by the trial court in March of 2007. With the exception of Ms. Smoot, the claims of the remaining plaintiffs were settled, and a judgment dismissing said claims was signed by the trial court on June 18, 2008. On June 23, 2008, the trial court signed an order of voluntary partial dismissal dismissing State Farm Fire and Casualty Company from the instant litigation.

      . Mathematically, this figure should actually be $361,228.70; however, the judgment reflects the miscalculated figure of $361,228.00 which will be referred to as such in this opinion.

      . We note that, as set forth below, the abuse of discretion standard of review is not the appropriate standard for our review of the award of future medical expenses.

      . Louisiana Code of Civil Procedure Article 1811 provides as follows:
      A. (1) Not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment under Article 1913, a party may move for a judgment notwithstanding the verdict. If a verdict was not returned, a party may move for a judgment notwithstanding the verdict not later than seven days, exclusive of legal holidays, after the jury was discharged.
      (2) A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.
      B. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or render a judgment notwithstanding the verdict. If no verdict was returned, the court may render a judgment or order a new trial.
      C. (1) If the motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.
      (2) If the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise.
      (3) If the motion for a new trial has been conditionally denied and the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
      D. The party whose verdict has been set aside on a motion for a judgment notwithstanding the verdict may move for a new trial pursuant to Articles 1972 and 1973. The motion for a new trial shall be filed no later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of the signing of the judgment notwithstanding the verdict under Article 1913. The motion shall be served pursuant to Articles 1976 and 1314.
      E. If the motion for a judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for a judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this Article precludes the court from determining that the appellee is entitled to a new trial or from directing the trial court to determine whether a new trial shall be granted.
      F. The motion for a judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both issues.

      . Louisiana Code of Civil Procedure Article 2133 provides as follows:
      A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee's action.
      B. A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.

      . Louisiana Code of Civil Procedure Article 2088 provides as follows:
      The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
      (1) Allow the taking of a deposition, as provided in Article 1433;
      (2) Extend the return day of the appeal, as provided in Article 2125;
      (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
      (4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
      (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
      (6) Grant an appeal to another party;
      (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
      (8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;

        (9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
      (10) Set and tax costs and expert witness fees.


author: PETERS, J.

text:
    Marlene E. RICHARDSON v. Clifton GARCIE.
    No. 2008-1209.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      William D. Dyess, Dyess Law Firm, L.L.C., Many, LA, for Plaintiff/Appellant, Marlene E. Richardson.
    John W. Pickett, Attorney at Law, Many, LA, for Defendant/Appellee, Clifton Garcie.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JIMMIE C. PETERS and MICHAEL G. SULLIVAN, Judges.
   PETERS, J.

1 Nhis matter is before the court on the issue of whether a summary judgment dismissing the possessory action brought by the plaintiff, Marlene E. Richardson, against the defendant, Clifton Garcie, was properly granted by the trial court. For the following reasons, we conclude that genuine issues of material fact remain unresolved, reverse the trial court’s grant of summary judgment, and remand the matter for further proceedings.

DISCUSSION OF THE RECORD

This is a possessory action brought by Marlene E. Richardson wherein she seeks to be recognized as the owner by acquisitive prescription of 1.609 acres of immovable property in Section 4, Township 7 North, Range 13 West, in Sabine Parish, Louisiana. Named as defendant is Clifton Garcie, the record owner of immovable property which includes the acreage at issue.

Ms. Richardson owns a 10.87 acre tract of immovable property in the said Section, Township, and Range which she purchased in April of 1984 from Melvin Ezernack. The 10.87 acres is a part of a sixty-acre tract which was the subject of a partition by the then co-owners in August of 1960. In that partition, Mr. Garcie acquired ownership of approximately thirty acres described in the partition deed as the Southeast Quarter of the Northwest Quarter of the Northwest Quarter and the East Half of the Southwest Quarter of the Northwest Quarter of Section 4, Township 7 North, Range 13 West. In the same transaction, Elvira Garcie Hebert acquired the acreage now owned by Ms. Richardson, described as the East Half of the Southwest | ¿Quarter of the Northwest Quarter of the Northwest Quarter and the East Half of the Northwest Quarter of the Southwest Quarter of the Northwest Quarter of the said Section, Township, and Range. At some point thereafter, Mr. Ezernack acquired Ms. Hebert’s property and, as previously stated, transferred it to Ms. Richardson in April of 1984. Ms. Richardson’s property is bounded on the east by Mr. Garcie’s property. A fence inside Mr. Garcie’s property line which runs generally parallel to the property line sets off the 1.609 acres at issue in this litigation.

In her possessory action, Ms. Richardson asserted that the 1.609 acres has been possessed by her or her ancestors in title for a period in excess of thirty years and that she had possessed it in excess of one year prior to filing suit. In response, Mr. Garcie asserted that the fence was never meant to be a division line of the property and, therefore, acquisitive prescription never began to run against him. In granting the motion for summary judgment, the trial court agreed with Mr. Garcie.

OPINION

Ms. Richardson argues on appeal that the trial court erred in granting Mr. Garcie’s motion for summary judgment. In doing so, she asserts that unresolved genuine issues of material fact still exist. Specifically, she alleges that there are material issues of fact concerning the date of installation and the original purpose of the fence that Ms. Richardson claims marks the edge of the property that she has acquired by acquisitive prescription. We agree.

|nA summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). In discussing the law pertaining to summary judgment procedure our supreme court has stated the following:

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.
A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Louisiana Code of Civil Procedure art. 966(C)(2) provides:

(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, motion, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Hines v. Garrett, 04-806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original).

|4In the matter before us, Ms. Richardson will bear the burden of proof at trial. Therefore, Mr. Garcie need only establish that there is an absence of factual support for one or more elements essential to Ms. Richardson’s claim.

Ms. Richardson is attempting to claim ownership of immovable property based on acquisitive prescription of thirty years’ possession pursuant to La.Civ.Code art. 3486. That requires a showing of possession for thirty years “without the need of just title or possession in good faith.” La.Civ.Code art. 3486. Here, Ms. Richardson only took possession of the property when she bought it in 1984. Thus, she must “tack” the possession of her ancestors in title in order to establish possession for the requisite thirty years. La.Civ.Code. art. 3442. In order for Ms. Richardson to apply the principle of “tacking,” she must prove that she and her ancestors exercised possession of the disputed tract up to a visible boundary since the tract is not included within her title. McDaniel v. Roy O. Martin Lumber Co., Inc., 560 So.2d 676 (La.App. 3 Cir.1990). Ms. Richardson alleges that she and her ancestors in title have possessed the disputed land as their own, arguing that they considered the fence as the boundary of their property. See Trahan v. Frankland, 317 So.2d 298 (La.App. 3 Cir.1975).

In support of his motion for summary judgment, Mr. Garcie filed an affidavit executed by Ms. Hebert and filed his own affidavit. In her affidavit, Ms. Hebert asserted that the fence on Mr. Game’s property was constructed in the mid-1950’s, at a time when she owned the property now owned by Ms. Richardson, and that it “was never intended to represent a dividing or ownership line between the land owners.”

|fiIn his affidavit, Mr. Garcie said that he had lived on his thirty acres before it was partitioned and that he had “constructed a fence upon a portion of the 30 acres prior to the partition.” Mr. Garcie also asserted in his affidavit that the boundary between his land and Ms. Hebert’s “was never specifically measured and marked until surveyed by Benjamin K. Fontenot in August, 2001.”

Mr. Garcie also asserted in his affidavit that he had taken affirmative steps to maintain possession of the property. Specifically, Mr. Garcie said that:

In 2002, Marlene Richardson, the owner of the Richardson property, arranged for timber to be cut from this land. Upon these timber cutters attempting to cross the line now depicted by Fontenot as Richardson’s east land line, Affiant stopped and prevented any cutting or harvesting east of this line.
Affiant, prior to the timber cutting noted above requested that James Ezer-nak move his mobile home from these same lands. This request was made through Plaintiff and she promptly effected this removal.
Affiant directed that a letter be sent through retained counsel to Plaintiff on July 12, 2005 directing and requesting she remove certain movables from the land at issue. Plaintiff promptly effected this removal.

Standing alone, the evidence presented by Mr. Garcie establishes that, as between him and Ms. Hebert, the fence was not the recognized boundary between the properties at issue. However, it does not establish when Melvin Ezernack, Ms. Richardson’s ancestor in title, obtained the property nor does it establish the understanding between Mr. Garcie and Mr. Ez-ernack concerning the property. Depending on when Mr. Ezernack obtained the property, and depending on the relationship he and Mr. Garcie had as pertains to the fence, thirty years might exist wherein Ms. Richardson could claim adverse possession by tacking onto her ownership. In fact, to be successful in any event, Ms. Richardson must be able to tack on Mr. Ezernack’s adverse possession.

| ^Furthermore, the evidence presented by Mr. Garcie does not stand alone. In opposition to Mr. Garcie’s motion for summary judgment, Ms. Richardson introduced testimony given by Mr. Garcie on January 6, 2003, in an earlier proceeding concerning Ms. Richardson’s property boundary dispute with Louise Sepulvado Garcie. When questioned in that litigation concerning the history and intent of the fence at issue in this litigation, the following exchange took place:

Question. Now, when your dad — let me back up a little bit. When your dad had it before it was divided up, was that land — did that land have cross fences on it?
Mr. Garcie. No, it didn’t.
Question. It was all open?
Mr. Garcie. Uh huh.
Question. Now, after the division between you and Lucinda and Thelma and your other sister, did anybody put cross fences — was it cross fenced then?
Mr. Garcie. Well, the only cross fence that was put in there I put one, you know, plum across dividing my thirty on my side.
Mr. Garcie. Well, I got a fence that runs plum across splitting my thirty from this thirty over there. I put that fence down there. Like I say I must have put that fence down there about in '57.

This testimony appears to assert that Mr. Garcie recognized the fence as a boundary “dividing [his] thirty” acres.

In reviewing the grant of a summary judgment de novo, we must draw all reasonable inference in a light most favorable to Ms. Richardson. Hines, 876 So.2d 764. Given the fact that Mr. Garcie’s testimony in the prior proceeding conflicts with the evidence he presented in support of his motion for summary judgment, we find 17that there remains an unresolved genuine issue of material fact in this litigation and that the trial court erred in granting the summary judgment.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s grant of summary judgment dismissing the demands of the plaintiff, Marlene E. Richardson, against the defendant, Clifton Garete, and remand the matter to the trial court for further proceedings. We assess all costs of this appeal to Clifton Garcie.

REVERSED AND REMANDED.

      . The trial reference to Ms. Richardson’s date of acquisition is not found in the evidence presented, but only in Mr. Garcie's brief filed in support of his motion for summary judgment. The brief states that Ms. Richardson acquired the property from Mr. Ezernack by a conveyance recorded in Conveyance Book 389, Page 707 of the records of Sabine Parish, Louisiana, on April 11, 1984. Because the parties seem to accept this date as accurate, for the purpose of our evaluation, we will accept it as well.

      . The record does not establish when Ms. Hebert divested herself of ownership of the property she acquired in the partition.

      . An August 2001 survey prepared by Benjamin K. Fontenot, a registered professional land surveyor, a copy of which is in the record, shows the location of the fence in detail. It begins east of Mr. Garcie's western boundary, slightly north of the southern common corner of the litigants' property, and runs generally north at a slight eastward angle. The effect of the fence is to create a triangular, or pie-shaped, tract, containing 1.609 acres between the litigants' common boundary and the fence.