author: EZELL, Judge.

text:
    James Joseph KEYES, Jr. v. Allison THIBODEAUX, et al.
    No. CA 11-1333.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      John Robert Shea, John Shea & Associates, Lafayette, LA, for Plaintiff/Appellant, James Joseph Keyes, Jr.
    Eric T. Haik, New Iberia, LA, for Defendant/Appellee, Lighthouse Property Ins. Corp.
    Suzanne M. deMahy, Public Defenders Office, Sixteenth Judicial District Court, New Iberia, LA, for Defendant/Appellee, Allison Thibodeaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

11 James Keyes appeals the judgment of the trial court below granting summary judgment in favor of Allison Thibodeaux’s homeowners’ insurer, Lighthouse Property Insurance. For the following reasons, we reverse the decision of the trial court and remand this matter for further proceedings in accordance with our judgment.

Mr. Keyes was injured on April 30, 2010, when he fell off Ms. Thibodeaux’s roof. Mr. Keyes was cleaning and measuring the roof in preparation for painting when, unbeknownst to him, Ms. Thibodeaux sprayed a section of the metal roof with water. Mr. Keyes slipped on the wet roof and fell, seriously injuring himself. He filed the current suit, which was met with several defenses and the current motion for summary judgment filed by Lighthouse. Lighthouse claimed that any bodily injury to Mr. Keyes was not covered under the policy. The trial court agreed and granted Lighthouse’s motion for summary judgment. From that decision, Mr. Keyes appeals.

Mr. Keyes claims as his sole assignment of error that the trial court erred in granting summary judgment in favor of Lighthouse. We agree.

A motion for 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 the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The party seeking summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. La.Code Civ.P. art. 966(C). 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. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. Appellate review of summary judgments is de novo, utilizing the same criteria that guide the trial court. Guil-lory v. Interstate Gas Station, 94-1767 (La.3/80/95), 658 So.2d 1152.

Willis v. Cenla Timber, Inc., 08-1041, p. 2 (La.App. 3 Cir. 2/4/09), 3 So.3d 624, 626.

12“When affidavits and exhibits present a choice of reasonable inferences, such inferences must be viewed in the light most favorable to the party opposing the motion for summary judgment.” Brittain v. Family Care Servs., Inc., 34,787, p. 4 (LaApp. 2 Cir. 6/20/01), 801 So.2d 457, 460. Moreover, under La.Civ.Code art. 2056, any policy language susceptible of multiple interpretations must be construed against Lighthouse as the party who furnished its text.

Here, the critical policy language at issue states that bodily injury to an insured is precluded. The policy’s definition of an insured is the named insured and relatives who are “residents of [the insured’s] household.” Also noted in the definitions section of the policy is that the spouse of the named insured is treated as the named insured, “if a resident of the same household.”

Mr. Keyes and Ms. Thibodeaux married in August of 2008 but physically separated four months into the marriage. Because Mr. Keyes and Ms. Thibodeaux have not divorced, he clearly would be a relative under the policy if he lived in the same household as Ms. Thibodeaux. However, nothing in the record indicates he is a member of her household. In fact, the record directly indicates otherwise. Mr. Keyes testified that he lives in a home he owns with his grandmother and aunt. He stated that he lived in that house prior to marrying Ms. Thibodeaux and returned there after he was kicked out of her home fifteen months prior to the accident. While Mr. Keyes stated that he lived at Ms. Thibodeaux’s address “off and on,” he was referring to the six-year time period prior to the accident, not to any time following it. Nothing in the record indicates that he returned after vacating Ms. Thibo-deaux’s. Mr. Keyes was clearly not a resident of the Thibodeaux household and had not been for over a year prior to the accident. Therefore, coverage of his injury is not excluded under the policy’s language. The ruling of the trial court was incorrect and, accordingly, is reversed.

laFor the above reasons, the ruling of the trial court is reversed. This matter is remanded to the trial court for further proceedings in accordance with this ruling. Costs of this appeal are assessed against Lighthouse.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    In re ADOPTION OF E.F.F. by J.L.B.
    No. 11-1383.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Nicholas Pizzolatto, Jr., Department of Social Services, OCS, Lake Charles, LA, for Appellants, J.L.B., A.F.B.
    Brad Guillory, Loftin, Cain & LeBlanc, LLC, Lake Charles, LA, for Appellee, P.L.F.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

11 J.L.B., husband of A.F.B., petitioned the court to adopt E.F.F., the minor child of A.F.B. and her former husband, P.L.F. P.L.F. objected to the adoption and sought joint custody and visitation rights with his son. The trial court denied the petition for adoption, finding the evidence did not support the termination of P.L.F.’s parental rights. The trial court specifically found P.L.F.’s consent was necessary for the adoption under the circumstances of this case. We affirm.

A.F.B. and P.L.F. were married in 2004 and divorced in 2009. The evidence in the record reveals that P.L.F. had a drinking problem and became abusive toward his wife when he was drunk. Therefore, she divorced him and was granted sole custody of their child, who was then four years old. P.L.F. paid approximately one-third of his child support obligation. P.L.F. also exercised visitation rights until he was incarcerated for several months as a result of offenses committed against A.F.B. P.L.F. pled guilty to two counts of domestic abuse battery and three counts of violation of a restraining order. In 2010, A.F.B. married J.L.B., her third husband, who initiated this adoption proceeding one month after the wedding.

The evidence shows that P.L.F. was an active and engaged father from the time of E.F.F.’s birth until he was incarcerated. While he was undeniably abusive toward his wife, the evidence was unequivocal that he did not abuse or mistreat his son. In fact, A.F.B. and her mother testified that P.L.F. from the beginning changed diapers and handled feedings, then later took E.F.F. on outings such as fishing and camping trips or visits to the zoo. After the couple separated, P.L.F. exercised visitation, paid some child support, though not all that was ordered, and attempted to maintain a relationship with his son through phone calls and cards from prison. The testimony also revealed that P.L.F., at the time of trial, had quit drinking, attended Alcoholics Anonymous meetings, and took anger management ^classes. He was also making full child support payments and was trying to catch up on arrearages.

The trial court characterized this as a “tough” case but ultimately concluded that the facts did not warrant the termination of P.L.F.’s parental rights so that E.F.F. would be free for adoption by J.L.B. The court based its decision on several factors. First, the court noted that in this case, P.L.F.’s consent to the adoption would be necessary. Second, the court acknowledged the good character of J.L.B. but commented that his marriage to A.F.B. is less than a year old, as of the time of trial. Finally, the court emphasized that the fundamental parent/child relationship deserves protection, respect, and deference. Contrary to that principle, however, the social worker who testified in favor of adoption was unable to assess the father/son relationship at issue. She was initially contacted to evaluate E.F.F. for behavior issues; she was not asked to perform an adoption study and was not given an opportunity to interview P.L.F. or perform a psychological evaluation. The trial court attributed P.L.F.’s lack of contact with his son in the year prior to trial to his incarceration and the length of time it took to get the case to trial.

Ties between parent and child, being the closest and strongest within the human family, courts sever them with extreme reluctance. The natural rights flowing from this relationship form the basis for the legislative requirement in former statutes and jurisprudence that both parents must consent before a child can be adopted under the proceedings authorized by our law-making body. It was not until the passage of R.S. 9:422.1 by Act 501 of 1958 that the consent of both parents was dispensed with under the limited circumstances there set out; and it was not until Act 268 of 1960, amending R.S. 9:422.1, that this rule was extended to include grandparents. These statutes, being in derogation of the natural right of the parents to the child, and the right of the child to its parents, have consistently been strictly construed in the jurisprudence in favor of the parents. Green v. Paul, [212 La. 337, 31 So.2d 819 (1947) ]; In re Ackenhausen, [244 La. 730, 154 So.2d 380 (1963) ]; In re Lafitte, 247 La. 856, 174 So.2d 804 [ (La.1965) ]; and In re Hughes, [176 So.2d 158 (La.App. 4 Cir. 1965) ].
Roy v. Speer, 249 La. 1034, 192 So.2d 554, 556-557 (1966).

In German v. Galley, 98-197 (La.App. 3 Cir. 5/20/98), 712 So.2d 1034, writ denied, 98-2189 (La.11/13/98), 731 So.2d 259, this court reversed a judgment granting an adoption based on the non-consenting father’s significant support of the child, with significant support being defined as 20% to 30% of the child support obligation. The German court described the petitioner’s burden of proof in an adoption case as follows:

In interpreting La.Ch.Code art. 1245(D)(1), previously codified in La. R.S. 9:422.1, the Louisiana Supreme Court in Haynes v. Mangham, 375 So.2d 103 (La.1979) took a “common sense” interpretation of the statute in stating: “If a parent under court order to support a child has not made a significant support payment within a year pri- or to filing of the petition for adoption, that parent loses the right to prevent the adoption by withholding consent.” (Emphasis added).
... However, “significant support has been defined as being something only in the range of twenty to thirty percent of the alimentary obligation.” In re Adoption of Broussard, 469 So.2d 454, 456 (La.App. 3 Cir.), writ denied, 474 So.2d 1303 (La.1985), citing In re May, 441 So.2d 500 (La.App. 2 Cir.1983).
In addition to establishing the failure to provide support, petitioners also have the burden of showing:
“1) that the failure to pay child support must have been without just cause, In re Bas, Applying for Adoption, 424 So.2d 405 (La.App. 2nd Cir.1982), and 2) that the adoption must be in the best interest of the child, Adoption of Latiolais, 384 So.2d 377 (La.1980).”
Wyatt v. Dept. of Public Welfare, 442 So.2d 1369, 1373, citing In re MDA, Applying for Adoption, 427 So.2d 1334 (La.App. 2 Cir.1983).

Id.

In the present case, P.L.F. provided significant support for his son, and there has been no showing that the proposed adoption would be in the best interest of E.F.F., who the trial court found will benefit from having both P.L.F. and J.L.B. in his life. We agree.

|4For the foregoing reasons, the judgment of the trial court is affirmed, at Appellants’ cost.

AFFIRMED.


author: GASKINS, J.

text:
    John Robert JOHNSON, Jr., Plaintiff-Appellant v. T & J HAULING COMPANY, INC., Defendant-Appellee.
    No. 46,853-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.
    Rehearing Denied Feb. 23, 2012.

      John Robert Johnson, Jr., Pro Se.
    The Smith Law Office, L.L.C., by Esk-ridge E. Smith, Jr., Bossier City, LA, Linda Lea Smith, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   GASKINS, J.

|, John Robert Johnson, Jr., the claimant in this workers’ compensation case, appeals from a judgment dismissing his claims. He now asserts that the workers’ compensation judge (WCJ) “overlooked” portions of the medical evidence which supported his claim. The defendants — the employer, T & J Hauling Company, Inc., and the workers’ compensation insurer, Louisiana Construction and Industry Self-Insurer’s Fund — answered the appeal, arguing that the WCJ erred in not finding that the fraud provisions of La. R.S. 23:1208 were applicable due to false statements made by the claimant. We affirm the judgment of the WCJ.

FACTS

The claimant was one of the owners of T & J Hauling Company, Inc.; he also drove for the company. Shortly after noon on February 11, 2009, he was driving an 18-wheeler pulling a trailer when he was allegedly injured in a collision with a pickup truck in Texas. Although his vehicle went into a ditch, the claimant, who was wearing a seat belt, refused treatment at the scene and was not transported to the hospital. That evening, he went to the emergency room (ER); he was diagnosed with a strain injury and released to return to work.

The defendants initially paid the claimant indemnity and medical benefits. The claimant, who is a diabetic, has a long and complicated medical history. Some of his medical issues apparently arose from prior accidents, as well as other medical conditions. In December 2008, shortly before the instant auto accident, the claimant’s family doctor, Dr. John Chandler, diagnosed him with carpal tunnel syndrome. Dr. Chandler |2ordered a cervical MRI, which was done on January 22, 2009, and referred him to an orthopedic doctor, Dr. Eubulus Kerr, who first saw him in late January 2009. Dr. Kerr diagnosed the claimant as having cervical radiculopathy. The claimant also had significant peripheral neuropathy which Dr. Kerr attributed to his diabetes. Dr. Kerr recommended a cervical fusion. However, in June 2009, the defendants sent the claimant to see Dr. Robert Holladay, an orthopedic surgeon. He disagreed with the opinion of Dr. Kerr that the claimant needed a cervical fusion.

On January 6, 2010, Dr. Karl Bilder-back, an orthopedic surgeon, performed an independent medical examination (IME) on the claimant. After examining the claimant and reviewing his extensive medical history, the doctor saw no indication for lumbar or cervical surgery or any other invasive procedure, including injections. Dr. Bilderback found no clinical evidence of either cervical or lumbar radiculopathy. The medical history indicated that the claimant had substantial issues before the accident which did not significantly change after the accident. However, Dr. Bilder-back noted what he termed “significant evidence of symptom amplification” by the claimant. The doctor saw no reason to restrict the claimant’s work activity based upon the February 2009 accident. Following Dr. Bilderback’s report, the defendants discontinued the claimant’s benefits.

In January 2010, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC). He asserted that he was unable to work due to injuries to his head, shoulder and back; that he had been denied recommended medical treatment; and that the IME by Dr. |aBilderback was inadequate. He indicated that no wage benefits had been paid since January 26, 2010. The claimant filed a first amended disputed claim for compensation in July 2010. Here he asserted that he was entitled to indemnity benefits, all reasonable and necessary medical treatment, penalties and attorney fees. He claimed injury to his head, right shoulder, back and neck.

In January 2011, the claimant — who was then proceeding in proper person — filed a “motion for perjury by statement” against the defendants’ counsel. He apparently alleged that counsel made a false statement in a letter to the claimant pertaining to his MRIs.

In February 2011, the defendants filed an answer urging application of La. R.S. 28:1208 due to false statements made by the claimant for the purpose of obtaining benefits. The defendants asserted that the claimant’s deposition had been taken in January 2011 and that he had made numerous false statements. According to the defendants, the claimant essentially testified that he had only minor health issues before the accident and no previous major accidents and that all of his maladies were attributable to the instant accident. They claimed that this testimony contradicted his medical records in many respects.

The case was tried on March 15, 2011. The claimant’s medical records were admitted into evidence, as was Dr. Holladay’s deposition. The doctor testified that while there might have been some temporary exacerbation of some of the claimant’s preexisting conditions (specifically his neck, back and carpal tunnel), there were no permanent injuries as a Rresult of the instant accident. The claimant, who was representing himself, was sworn and, with some guidance from the WCJ, presented his own testimony. He was then cross-examined by the defendants’ counsel. Essentially, the claimant testified that all of his many current ailments were somehow related to the instant accident.

At the conclusion of the claimant’s testimony, the defendants made a motion to dismiss. The WCJ then found that the claimant had failed to carry his burden of proof to establish entitlement to any award. In assigning oral reasons for judgment, the WCJ specifically found that the claimant was not credible. Suit was dismissed at the claimant’s cost. The motion for perjury and/or contempt filed by the claimant was also dismissed at the claimant’s cost. Judgment was signed on March 17, 2011.

On March 24, 2011, the claimant filed a motion for new trial. He asserted that the WCJ made “some false ruling” against him on his motion for perjury. The WCJ denied the motion.

The claimant appeals. He contends that the WCJ “overlooked” certain of his medical records.

| ¿LAW

An employee is entitled to workers’ compensation benefits if he received personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An “accident” is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). In a workers’ compensation action, the plaintiff must establish the occurrence of a work-related accident by a preponderance of the evidence. Koenig v. Christus Schumpert Health System, 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037.

Proof by a preponderance of the evidence is sufficient where the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Lowe v. Skyjacker Suspensions, 45,058 (La.App.2d Cir.3/3/10), 32 So.3d 340; Player v. International Paper Company, 39,254 (La.App.2d Cir.1/28/05), 892 So.2d 781. The claimant must establish a causal link between the work-related accident and his injury. Player v. International Paper Company, supra. If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof. Player v. International Paper Company, supra; Millage v. Builder's Lumber Supply Company, 38,635 (La.App.2d Cir.7/2/04), 877 So.2d 1171, writ denied, 2004-1885 (La.10/29/04), 885 So.2d 594.

The worker’s testimony alone may be sufficient to satisfy this burden, provided that two elements are satisfied: (1) no other evidence discredits or easts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Authement v. Wal-Mart, 2002-2434 (La.App. 1st Cir.9/26/03), 857 So.2d 564; Davis v. Claiborne Electric Cooperative, Inc., 45,806 (La.App.2d Cir.12/15/10), 56 So.3d 321.

A preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689; Hatfield v. Amethyst Construction, Inc., 43,588 (La.App.2d Cir.12/3/08), 999 So.2d 133, writ denied, 2008-2996 (La.2/13/09), 999 So.2d 1150. The preexisting condition is presumed to have been aggravated by the accident if the employee proves: (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of a causal connection between 17the accident and the activation of the disabling condition. Peveto, supra; Green v. Thompson Home Health, 46,593 (La.App.2d Cir.9/21/11), 73 So.3d 490.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Dombrowski v. Patterson-UTI Drilling Company, 46,249 (La.App.2d Cir.4/13/11), 63 So.3d 308. The trier of fact’s determinations as to whether the worker’s testimony is credible and whether the worker discharged the burden of proof are factual determinations, not to bé disturbed upon review unless clearly wrong. Green v. Thompson Home Health, supra.

To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine that the record establishes that the finding is clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993); Dombrowski v. Patterson-UTI Drilling Company, supra. Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have |sweighed the evidence differently. Stobart v. State through Department of Transportation and Development, supra; Dombrowski v. Patterson-UTI Drilling Company, supra.

MEDICAL EVIDENCE

As previously noted, the claimant has a long and complicated medical history. In addition to the instant accident, he had been involved in other auto accidents in 1990 and 2006. These resulted in neck, shoulder and back issues. As early as 1995, the claimant’s VA medical records demonstrated that he had a “long history of low back pain.” Lumbar spine MRIs in 1995 and 1997 showed herniated discs.

The claimant was diagnosed with diabetes more than a decade ago. Since then, he has had several periods where this condition was out of control. He has diabetes-related peripheral neuropathy. In the years preceding the instant accident, he was hospitalized for kidney disease. About six weeks before the instant accident, his complaints of tingling and numbness in his fingers led to a diagnosis of carpal tunnel syndrome. Dr. Kerr sáw the claimant for the first time on January 27, 2009, weeks before the instant accident. He diagnosed the claimant as having cervical radiculopathy. An MRI of the claimant’s cervical spine done on January 22, 2009 showed some degenerative disc changes and spinal stenosis or narrowing.

|aIn October 2009, the claimant was arrested for nonsupport and placed in the back seat of a patrol car in handcuffs. He asserted that while being transported to jail, he suffered a shoulder injury as a result of falling over in the vehicle during a sharp turn. He later sued the Department of Social Services for this alleged injury.

The claimant subsequently developed blood clots in his legs which required the placement of an IVC filter in 2010. The claimant testified that he believed the clots were a result of the instant accident. However, no medical evidence supports this assertion. Dr. Holladay testified that when he examined the claimant in September 2009, he had no symptoms consistent with blood clots.

DISCUSSION

Under the facts presented in this case, in order to prove entitlement to workers’ compensation benefits, the claimant was required to prove by a preponderance of the evidence that he suffered a disabling injury. He was specifically obliged to prove that the accident aggravated his preexisting condition by showing that: (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of a causal connection between the accident and the activation of the disabling condition.

Our review of the medical evidence— including the records allegedly “overlooked” by the WGJ — reveals no manifest error in the WCJ’s |10conclusion that the claimant failed to carry his burden of proof. Taken as a whole, the evidence shows that the claimant had significant health issues prior to the instant accident. While the instant accident caused exacerbation of some of these conditions, it was the expert opinion of Dr. Holladay and Dr. Bilderback that this exacerbation was only temporary. According to these doctors, the claimant had the same symptoms after the instant accident as he did before it occurred.

We particularly note the deposition of Dr. Holladay, as he was the only physician whose testimony was presented at trial. Dr. Holladay saw the claimant twice in 2009, first in June, then in September. He also had the benefit of reviewing the claimant’s medical records. He opined that none of the claimant’s complaints were caused by the instant accident. Some, like the cervical spine issues, were temporarily exacerbated (i.e., some increased symptoms), but there was no objective evidence of aggravation (i.e., an objective change in an underlying preexisting condition that shows acceleration, progressively increasing changes relatable to a specific traumatic event). In September 2009, Dr. Holladay felt that the claimant was still having some residual problems from the exacerbation but not enough to keep him from returning to his job as a truck driver. While Dr. Holladay had some concerns about the numbness and tingling in the claimant’s hands, the claimant had those same symptoms before the instant accident. Finally, Dr. Holladay did not believe that the claimant suffered any permanent injury as a result of the instant accident.

|nIt appears that the claimant does not fully understand the meaning of certain things in his medical record. He seems to attach great importance to the changes in his modic endplate noted in a March 13, 2009, lumbar MRI. However, in his deposition, Dr. Holladay explained that such changes are degenerative. As such, by definition, they are gradual, taking place over time, as opposed to being the result of a sudden trauma.

Likewise, the claimant cites language in the report of his January 2009 cervical spine MRI that there was “no cord effacement” and contrasts it with a finding of “definite flattening of the cord” in a doctor’s report discussing the results of his February 2010 cervical spine MRI. The claimant apparently believes that this constitutes some sort of proof that headaches he allegedly suffered were caused by the instant accident. However, we note that in reaching this conclusion, the claimant ignores other portions of the same February 2010 doctor’s report which indicate that the headaches could be related to cervical degeneration or that his diabetic polyneuropathy could be playing a role in his symptom production.

The claimant also accuses the WCJ of overlooking evidence pertaining to abdominal pain. The record shows that the claimant made two complaints concerning his abdomen. One involved a boil which he testified first appeared on the left side, then disappeared, only to reappear a year later on the right side. His medical records indicate that in March 2009, he complained about a boil on his abdomen that occurred after something bit him after the instant accident when he was under his truck releasing the brakes so it could be pulled from the ditch. Medical personnel who | ^examined him shortly thereafter believed it was a spider bite and lanced the boil. He was treated by Dr. Chandler for a staph infection in connection with this boil. In his 2011 medical records, the claimant complained of abdominal pain which he related to the steering wheel hitting him in the stomach in the instant accident. He asserted that an umbilical hernia repaired in 2006 had reoccurred after the instant accident, and then moved from the right side to the left side in August 2009. However, Dr. Holladay testified that the claimant never indicated to him that he had suffered any abdominal trauma in 2009. Furthermore, the doctor testified that he would expect that the degree of abdominal trauma asserted by the claimant to have been treated in the ER or by a doctor who treated him after the accident and that an acute abdominal injury would not be without symptoms for almost two years. Also, Dr. Holladay said it would be “very unusual and very uncommon” for trauma swelling to go away and come back in a different place. Taking into consideration that the claimant was wearing a seat belt at the time of the collision and that he did not complain about any abdominal trauma when he saw him in June 2009, Dr. Holladay could not relate this complaint to the instant accident.

The claimant also asserted a head injury based upon a knot appearing on his head at least two weeks after the instant accident. However, the ER records make no mention of a head injury and his medical records document that the claimant told Dr. Chandler that he did not recall hitting his head. Yet he testified that he later recalled that he did hit his head. Brain CT scans were unremarkable.

| lsThe claimant testified that since the instant accident, his diabetes has been “out of control.” However, he conceded that no doctor has related those problems to the instant accident.

Our careful review of the record before us leads us to the inescapable conclusion that the WCJ’s decision was fully supported by the evidence. The claimant failed to prove by a preponderance of the evidence that he suffered a disabling injury due to the instant accident beyond a temporary exacerbation of the medical maladies he already had. Accordingly, we find no manifest error in the WCJ’s ruling.

MOTION FOR PERJURY

The claimant also complains about the WCJ’s denial of his “motion for perjury by statement” against the defendant’s counsel. The actual motion is virtually incomprehensible. However, to the extent that it appears that the claimant is asserting that counsel made a false statement to pressure the claimant to not pursue his ease, we find no manifest error in the WCJ’s denial of the motion. The claimant failed to prove that counsel committed any intentional act constituting perjury, in violation of La. R.S. 14:123, or insurance fraud, in violation of current La. R.S. 22:1924 (formerly La. R.S. 22:1243), the statute he cites in his brief to this court.

APPLICATION OF LA. R.S. 23:1208

In their answer to the appeal, the defendants contend that the WCJ erred in not finding that La. R.S. 23:1208, which pertains to false statements made to obtain workers’ compensation benefits, was applicable. Because the WCJ found that the claimant failed to prove entitlement to benefits, he 114apparently found it unnecessary to rule on the issue of whether the claimant made false statements to obtain benefits under La. R.S. 23:1208. We likewise find it unnecessary and conclude that the defendants raised the issue on appeal out of an abundance of caution. Accordingly, we pretermit this matter. See and compare LaFrance v. Weiser Security Service, Inc., 2001-1578 (La.App.4th Cir.3/27/02), 815 So.2d 339, writ denied, 2002-1169 (La.6/14/02), 818 So.2d 784; and Guest House of Slidell v. Wilson, 2001-2263 (La.App.1st Cir.10/2/02), 835 So.2d 656.

CONCLUSION

The judgment of the WCJ is affirmed. Costs of this appeal are assessed to the appellant, John Robert Johnson, Jr.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, DREW and SEXTON, JJ.

Rehearing denied.

      . In giving his oral ruling, the WCJ went to great lengths to explain his rationale to the claimant. On the issue of the claimant's credibility, the WCJ stated that he had watched the claimant change his testimony in court, that the claimant had "a quick answer for everything," and that the claimant's "play[ing] games with words” had made his testimony unbelievable. The WCJ went on to say that the claimant wanted him to believe him, but "I think you’ve overdone it to the point where I can't believe you.”
      The claimant’s testimony pertaining to his carpal tunnel is illustrative. At one point in his testimony, the claimant stated that his carpal tunnel — which was diagnosed in late December 2008 — was cured by the time the instant accident occurred six weeks later. Yet approximately 13 lines further down in the transcript, he denied saying he was cured.

      . The claimant's next appointments with Dr. Kerr were on March 17, 2009, and April 28, 2009. Interestingly, Dr. Kerr’s notes indicate that the claimant did not inform him of the instant accident on February 11, 2009, until the April appointment.

      . According to Dr. Holladay's testimony, another cervical MRI performed in December 2009 was essentially the same.


author: STEWART, J.

text:
    Everlee JACKSON, Plaintiff-Appellant v. Billy R. HERRING and Edith Herring, Defendants-Appellees.
    No. 46,870-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.
    Rehearing Denied Feb. 23, 2012.

      Ron C. Stamps, Shreveport, LA, for Appellant.
    Wilkinson, Carmody & Gilliam, Shreveport, LA, by Arthur R. Carmody, Jr., for Appellees.
    Before STEWART, CARAWAY and MOORE, JJ.
   STEWART, J.

^ The plaintiff, Everlee Jackson, appeals a judgment dismissing her suit captioned as a “Petitory Action with Request for Declaratory Relief’ against the defendants, Billy and Edith Herring (“the Herrings”), concerning a small piece of property near Grand Cane in DeSoto Parish. For the reasons explained in this opinion, we reverse the trial court’s judgment and remand for the trial court to fix the boundary in accordance with La. C.C. art. 794.

FACTS

Ms. Jackson’s petition filed on April 22, 2009, asserted that she is the owner of Lot 14, described as follows:

Lot 14, known as the Hobgood residence site,- being the same property as is described in Conveyance Book 4, page 462, records of Desoto Parish, Louisiana and two lots in Grand Cane, Louisiana, being lots No. 1 and 12 of Block 35 of the Town of Grand Cane, LA, as per map of plat thereof and being the same property as is described in Book 6, Page 147, Conveyance Records of Desoto Parish, Louisiana, together with all buildings and improvements thereon. (Being the same property sold by Sheriffs Sale Deed executed under date of August 22, 1984, unto Jessie Lee Ford, bearing Registry # 469,318 and filed in Book 562 at Page 425, Conveyance Records of De-soto Parish, La.)

Ms. Jackson asserted that Jessie Lee Ford sold Lot 14 to her by cash sale deed on July 24, 2007. In November 2008, the Herrings erected a fence that barred Ms. Jackson’s access to part of the property on which a house is located. Ms. Jackson requested that the court order a survey to ascertain the limits of her property, and she prayed for a judgment ordering the Herrings to remove the fence and providing “all other general and equitable relief.”

In an amended and supplemental petition filed after the Herrings’ answer, Ms. Jackson asserted that she has had uninterrupted possession of the property in dispute “in excess of ten years.”

|2In their answer, the Herrings denied the allegations of Ms. Jackson’s petition. They asserted they erected the fence entirely on their own property on the north side of La. Highway 3015 (“the highway”) and that Ms. Jackson’s property, Lot 14, is located entirely on the south side of the highway. The Herrings claimed that the property at issue is part of a 28-acre tract which they purchased in 1994 from Harry L. Calhoun and Sheila L. Smith Calhoun and which is described as follows:

A tract containing 28 acres, more or less, located in and adjacent to the Town of Grand Cane, Louisiana, described as follows: Commencing 6 chains North and 71 degrees West from the Northwest Corner of Lot 13(said Lot 13 being described in the transfer of W.F. Hob-good as recorded in Conveyance Book 2, Page 408), running thence North 73 degrees West 19 chains 87 links; thence North to the line between Southeast Quarter and Northeast Quarter of Section 29, Township 13 North, Range 14 West; then run East with said line to Grand Cane city limits 21 chains 43 links, thence with said line South 22 degrees East 13 chains 85 links, thence South 68 degrees West 2 chains 68 links; thence North 71 degrees West 4 chains 74 links; thence South 17 degrees West 3 chains 35 links to place of beginning, containing 28 acres, more or less; being a portion of the property acquired by Moss M. Bannerman from John M. Rogers by deed of March 31, 1911, recorded in Book 26, Page 333, and acquired by John N. Rogers from T.D. Jefferies on January 30, 1906, recorded in Book 19, Page 154, Conveyance Records of Deso-to Parish, Louisiana, together with all buildings and improvements located thereon.
SAID Lot 13 described in the transfer deed to W.F. Hobgood being described as follows, to-wit:
Commencing at the Southwest Corner of Grand Cane, Desoto Parish, Louisiana, thence run West 9 chains 73 links; North 07 degrees West 13 chains; South 83 degrees East 05 chains 98 links to Grand Cane city line; thence run South 22 degrees East to place of beginning, containing 10.32 acres, together with all buildings and improvements located thereon.

The Herrings also pled acquisitive prescription of 10 years.

^Photographs in evidence show the disputed property to be in a rural area. An old red house is set off the highway in a clearing, and a smaller structure is located behind the house. A barbed wire fence affixed with a sign marked “private property” and “no trespassing” runs along the front of the property just beyond the ditch and utility poles.

The matter proceeded to a trial on March 31, 2011.

Trial Testimony

Ms. Jackson, age 78, testified that she purchased Lot 14 from Jessie Lee Ford (“Aunt Jessie”), her 101-year old aunt who was in a nursing home at the time of trial. She related that Aunt Jessie obtained Lot 14 from her aunt, Ruby Lee Ford Johnson (“Aunt Ruby”), and she introduced a sheriff sale deed dated August 22, 1984, evidencing Aunt Jessie’s purchase of Lot 14 belonging to the Succession of Ruby Ford Johnson. Ms. Jackson also introduced the cash sale deed evidencing the purchase of Lot 14 by Aunt Ruby from Myrtis D. Porter, in 1959. Ms. Jackson explained that Aunt Ruby and Myrtis were the daughters of John Ford, her great-great grandfather who purchased Lot 14 of the Hobgood Estate, from S.D. Hobgood in 1890 as evidenced by the cash sale warranty deed which was also introduced into evidence. We note that the property descriptions in both the 1890 deed and the 1959 deed refer to Lot 14 as containing 2.32 acres.

Ms. Jackson stated her belief that the disputed property is part of Lot 14 and related her memories of visiting there from the time that she was a little girl. She dated her earliest memories to when she was seven years old. |4She recalled going there to visit Aunt Jessie and Aunt Ruby and playing under the plum trees on the property. She stated that Aunt Jessie had occupied the house for as long as she could remember. She related that another house, which no longer exists, had also been located “next to the little outer house” and occupied by a cousin named Tim Ford. She recalled going to her cousin’s house, which had been torn down and running “to the other house which was Aunt Ruby Lee Ford across the road.”

Ms. Jackson testified that she would check the house periodically because Aunt Jessie had furniture, clothing, and other items in the house. She stated that the bathroom had been “recently remodeled.” According to Ms. Jackson, Aunt Jessie had maintained utilities at the house and she continued to do so. She explained that she was still “paying the light bill.” Ms. Jackson last visited the house two years ago around the time the fence was erected. She believed it was September. She stated that the young man who took care of the yard around the house every two weeks told her that a fence had been erected and a no trespassing sign put up.

When questioned by counsel for the Herrings, Ms. Jackson clarified that there had been two houses on the property north of the highway and one house on the property south of the highway. She also reiterated her belief that the red house is located on Lot 14 property north of the highway. When asked whether anyone had lived in the red house on a regular basis during the last ten years, she stated, “Not on a regular basis, but someone was living there.” She noted that she had been unable to get to the house within Ifithe last two years since the Herrings erected the fence and posted the “No Trespassing” sign.

George Jones testified that he has known Jessie Lee Ford since 1998 when he began doing yard work for her around the house north of the highway and on the property on the south side of the highway. He identified a photograph of the red house on the north side of the highway as the house where Ms. Ford was living in 1998. In addition to doing yard work, Mr. Jones stated that he redid a bathroom and closet in the house in 1998. He testified that he maintained the lots on both sides of the highway every two weeks initially for Ms. Ford and then for Ms. Jackson. He only stopped doing so when the fence was erected along the front of the north side of the highway barring access to that part of the property. On cross by the Herrings’ counsel, Mr. Jones testified that there had once been two houses north of the highway, one of which had been torn down. Another house had been located south of the highway, but it had burned down.

Ms. Jackson also presented the testimony of Kenneth Murphy, a land surveyor. Mr. Murphy performed a possession survey for Jessie Lee Ford in 2005 of the property around the red house north of the highway. The possession survey, which encompasses 1.18 acres and is dated February 23, 2005, was introduced into evidence. It is designated a Class D survey, but Murphy testified that he had probably done a Class C survey, which is somewhat more accurate though not as accurate as a Class A or Class B. As stated on the survey, Murphy did not conduct any title or public record search in compiling the data for the survey. Instead, he based the boundary |fiof the property “on an old fence that had been there for a long time.” For the survey he “simply shot the old fence and everything that the fence surrounded.” Photographs introduced into evidence show the old fence along the tree line around the clearing where the house is located. Murphy testified that Ms. Ford was present during some of his survey work, and he believed that she was living in the house. He testified that it looked like the yard was being maintained. When questioned by the Herrings’ counsel, Murphy stated that he did not obtain from any records the description on the survey and that he had not examined the Herrings’ 1994 deed to determine whether the old red house was on their property.

After the completion of Ms. Jackson’s case, Mr. Herring testified that he first purchased about 70 acres in 1972 on which he later built his house and two barns. He operated a dairy farm business. On July 1, 1994, the Herrings purchased the 28-acre tract from the Calhouns. They obtained a preliminary title opinion from an attorney verifying that the Calhouns had good and valid title to the property, but no survey was done. Notably, the title opinion states in the absence of a survey no determination could be made as to whether there was any adverse possession, boundary disputes, or other defects of title affecting the property. Mr. Herring testified that he was engaged in raising cattle and selling timber around the time he purchased the 28-acre tract. When asked whether he had ever seen anyone living in the red house, he stated “Never have. Not since I bought it anyway.” He identified photographs of the red house, which he described |7as being in “bad shape.” Finally, he asserted that the red house is located on his property, not Lot 14 owned by Ms. Jackson.

When questioned by counsel for Ms. Jackson, Mr. Herring testified that he had never been in the red house. He admitted that there is a utility meter at the house but claimed it was not recording any usage. When shown photographs of the old fence upon which Mr. Murphy based the possession survey, Mr. Herring admitted that he had not put up that fence and did not know how long it had been there. He testified that around October 2008 he put up a fence along the north side of the highway on the advice of his attorney. He wanted to prevent anyone from coming onto his property unannounced. Mr. Herring testified that he regularly maintained the property after putting the fence up, but he indicated that he had not done so before then. He also testified that he had not had cattle on the land, presumably referring to the 28 acres, but that he had sold timber off it and leased it several times. He could not say when this would have occurred.

The Herrings also presented the testimony of Michael Perry Bowman, a land surveyor. Bowman surveyed the 28-acre tract acquired by the Herrings from the Calhouns and determined that the red house is located on the Herrings’ property and not on Lot 14. Bowman testified that he spent a significant amount of time on the project because “[tjhere are so many deeds that are bad.” He noted that the original Hobgood partition map was off an entire chain, meaning 66 feet. After identifying Lot 14, the highway, and the Herrings’ 28-acre tract on a map, Bowman testified that Lot 14 actually extends on both sides of the highway. He explained that a small part of Lot |s14 runs 25 feet north of the right of way and about 50 feet along the right of way. However, he testified that the old red house is not located on the part of Lot 14 that is north of the highway.

Counsel for Ms. Jackson questioned Bowman about the accuracy of his survey in light of the errors in some of the deeds. Bowman explained that he could not find a plat of the Hobgood subdivision but that he had written descriptions of all the lots from the Hobgood partition. Even though there were errors in some of the deeds, Bowman used the legal descriptions to draw the survey map. He explained the process by stating, “And a lot of the times they don’t close. So you’ve got to figure out, you know, where it went, where it closes.” He agreed with counsel that the errors in the deeds required him to make educated guesses when completing the survey map. He noted that even the deed for Lot 15 of the Hobgood partition had an error, and he identified Lot 15 as the Herrings’ 28-aere tract even though the Herrings’ property description does not mention Lot 15.

Ruling of the Trial Court

After taking the matter under advisement, the trial court rendered a written ruling in favor of the Herrings on May 18, 2011. Noting the Bowman survey to be “accurate and well founded,” the trial court concluded that the old red house is located on Lot 15 of the Hobgood partition and is included in the Herrings’ title. The trial court then considered whether Ms. Jackson acquired ownership through acquisitive prescription. Due to lack of a just title, the trial court concluded that she could not have acquired the property in ten years. The court also concluded that she had not acquired |9the property by prescription of 30 years. The trial court found that Ms. Jackson and her ancestors in title had exercised possession over “Lot 15.” However, citing Brown v. Wood, 451 So.2d 569 (La.App. 2d Cir.1984), writ denied, 452 So.2d 1176 (La.1984), the trial court concluded that the absence of a juridical link prohibited tacking of the possession by Ms. Jackson’s ancestors in title to her own possession of the disputed property. The court viewed Ms. Jackson’s possession and that of her ancestors in title as unconnected acts of trespass. Judgment dismissing Ms. Jackson’s petition was signed on June 14, 2011. Ms. Jackson’s appeal followed.

DISCUSSION

Ms. Jackson argues that the trial court erred in relying on the Bowman survey and in failing to find that she had an unbroken chain of title originating in 1890 to the disputed property. She also argues that the trial court erred in failing to find that she proved ownership by acquisitive prescription of ten years.

The Herrings counter that they proved record title to the disputed property as shown by the Bowman survey and that the trial court properly rejected Ms. Jackson’s claim of acquisitive prescription of 10 years.

In accordance with the Bowman survey, the trial court found the old red house and the land on which it is situated to be part of Lot 15, the Herrings’ property. As such, the trial court rejected Ms. Jackson’s ownership claims based on her chain of title dating to 1890 and acquisitive prescription of 10 years. We agree that Ms. Jackson’s chain of title does not prove that she is the record owner of the disputed property where the old red 11(1house is located. As shown by the Bowman survey, the old red house, which Ms. Jackson’s testimony indicates has been a family homesite throughout her lifetime, is located on Lot 15, not Lot 14, and is part of the Herrings’ 28-acre tract. Even though Mr. Bowman admitted that there were errors in some of the deeds he used for the survey, nothing in the record indicates that he failed to comply with applicable standards or that his conclusions were not well-founded. We find no error on the part of the trial court in accepting the conclusions of the Bowman survey.

We also find no error in the trial court’s rejection of the claim of acquisitive prescription of 10 years. Possession of immovable property for 10 years in good faith and under just title is required to obtain ownership. La. C.C. art. 3475; Cockerham v. Cockerham, 44,578 (La.App.2d Cir.8/19/09), 16 So.3d 1264. This allows a person who purchases immovable property by a deed translative of title and who has a reasonable and objective belief that he is acquiring valid title to the property to secure the title through peaceable possession for 10 years when there has not been any disturbance by the true owner. Cockerham, supra. Though Ms. Jackson believed herself to be the true owner of the property at issue, her deed to Lot 14 does not cover the entirety of the property and is therefore not a just title upon which she can base her claim of acquisitive prescription of 10 years.

The trial court also considered whether Ms. Jackson proved acquisitive prescription of 30 years. She testified at trial and argues on appeal that her relatives and ancestors in title lived in the red house for as long as she can remember and that they continuously maintained the house |nand the parcel of land until the Herrings erected the fence in 2008. However, the Herrings assert that Ms. Jackson did not plead acquisitive prescription of 30 years and that it is not a viable issue.

Under fact pleading, a party shall be granted the relief to which he is entitled under the pleadings and evidence, even if such relief is not demanded in the pleadings. La. C.C.P. art. 862; Greemon v. City of Bossier City, 2010-2828 (La.7/1/11), 65 So.3d 1263. Moreover, this court shall render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. Based on the pleadings and evidence taken together, the trial court properly considered whether Ms. Jackson proved acquisitive prescription of 30 years and we will review the trial court’s judgment in this regard.

One may acquire ownership by acquisitive prescription of 30 years without just title or good faith possession. La. C.C. art. 3486; Cockerham, supra. For acquisitive prescription without title, possession extends only to that which has been actually possessed. La. C.C. art. 3487; Greengrove Missionary Baptist Church v. Cox, 42,418 (La.App.2d Cir.9/19/07), 966 So.2d 707. Possession must have been continuous, uninterrupted, peaceable, public and unequivocal. La. C.C. art. 3435; Pace v. Towns, 33,071 (La.App.2d Cir.4/5/00), 756 So.2d 680. What constitutes adverse possession depends on the nature of the property and must be determined based on the facts of each case. Id.

Possession is transferable by universal or particular title, and the possession of the transferor is tacked to that of the transferee if there has 112been no interruption of possession. La. C.C. arts. 3441 and 3442. Additionally, if a party and his ancestors in title possessed for 30 years without interruption and within visible bounds more land than their title called for, the boundary shall be fixed along these bounds. La. C.C. art. 794.

Though captioned as a petitory action and request for declaratory relief, Ms. Jackson’s petition requested a survey to ascertain the limits of her property due to the Herrings’ placement of a fence that barred access to part of her property and the house located thereon. These pleadings suggest a boundary action.

In a boundary action, an owner or one who possesses as owner may demand that the boundary be fixed between contiguous lands. La. C.C. arts. 785, and 786; La. C.C.P. arts. 3691 et seq. The boundary may be fixed according to ownership or the possession of the parties. La. C.C. art. 792; La. C.C.P. art. 3693.

The petitory and boundary actions are not mutually exclusive; rather, they are “mutually complementary” with the petitory action seeking “a judicial determination of the plaintiffs ownership,” and the boundary action seeking a “judicial localization of this ownership on the ground.” Symeon Symeonides, Ruminations on Real Actions, 51 La. L.Rev. 493, 511 (Jan.1991). Issues of title and ownership may be decided in a boundary action. Pace v. Towns, supra. Title prescriptions may be pled in boundary actions and boundary prescriptions in title suits. Cuthbertson v. Unopened Succession of Tate, 544 So.2d 1236 (La.App. 3d Cir.1989), citing Ledoux v. Waterbury, 292 So.2d 485 (La.1974).

Although Mr. Bowman concluded that the old red house is located on the Herrings’ property, he also concluded that the boundary of Lot 14 extends north of the highway. Bowman testified that Lot 14 runs 25 feet north of the right of way and extends 50 feet in length along the highway. Because Lot 14 extends north of the highway, it is contiguous with the Herrings’ property, and it appears that the Herrings’ fence along the north side of the highway encroaches upon Lot 14. Therefore, the boundary between these contiguous parcels of land may be fixed according to ownership or possession of the parties.

The record indicates that Ms. Jackson and her ancestors in title possessed more land than their title called for throughout her lifetime from the north boundary of the strip of Lot 14 identified by Mr. Bowman to the visible bounds of the old red house and the old fence upon which Mr. Murphy based the possession survey in 2005. Ms. Jackson’s earliest memories of visiting the property date to when she was seven years old; she was 78 at the time of trial. She indicated that family members lived on both sides of the highway and that there were two houses north of the highway. She recalled running across the road from house to house when visiting her cousin and aunts. Her recollection was corroborated by Mr. Jones, who testified that there had once been two houses north of the highway, one of which had been torn down, and one south of the highway that had been destroyed by fire. Mr. Jones testified that Ms. Jessie Lee Ford had been | ^living at the house in 1998 when he began taking care of the yard work. He also testified that he did some work on the interior of the house. He continued maintaining the property for Ms. Jackson until the fence was erected by Herrings in the latter part of 2008.

Though the trial court found that Ms. Jackson and her ancestors in title “exercised possession over Lot 15,” it did not find that Ms. Jackson satisfied the requirements of possession for the requisite 30-year period. Citing Brown v. Wood, supra, the trial court concluded that Ms. Jackson could not tack the possession of her ancestors in title to her own, which began in 2007, because there was no juridical link.

In Brown, supra, this court made a significant distinction between tacking of possession under the general prescriptive articles, La. C.C. arts. 3441 and 3442, and under La. C.C. art. 794, which pertains to boundary actions. The court explained that under Article 794 “one may utilize tacking to prescribe beyond title on adjacent property to the extent of visible boundaries,” whereas under Articles 3441 and 3442, “tacking may be utilized to prescribe only to the extent of title.” Id., p. 574. Though a juridical link is required to effectuate tacking under Article 794, the juridical link does not have to describe the property that is the subject of the boundary dispute. This is in line with the language of La. C.C. art. 794, which states:

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

11fiAs explained recently in Loutre Land & Timber Co. v. Roberts, 2010-2327 (La.5/10/11), 63 So.3d 120 (La.5/10/11), under Article 794, the deed that forms the juridical link need not include the particular property to which the possessor claims prescriptive title in order to tack onto the possession of his ancestor in title. If the possession occurs without interruption and spans 30 years, the boundary is to be fixed along the visible bounds of possession. Id. See also Marks v. Zimmerman Farms, LLC, 44,279 (La.App.2d Cir.5/20/09), 13 So.3d 768.

In finding that Ms. Jackson could not utilize tacking, the trial court overlooked both that part of Brown, supra, explaining that a possessor can tack beyond title on adjacent property to visible bounds and evidence that Lot 14 includes a strip of land north of the highway that is adjacent to Lot 15. Ms. Jackson’s title, which includes the strip north of the highway, provides the juridical link needed to utilize tacking under La. C.C. art. 794 to that which is possessed beyond title and within visible bounds. The history related by Ms. Jackson along with her other evidence establishes that her ancestors in title possessed for more than 30 years and within the visible bounds of the red house and the old fence line more land than their title called for. For these reasons, we must reverse the trial court’s judgment and remand the matter for the trial court to fix the boundary between Lot 14 north of the highway and the Herrings’ property in accordance with La. C.C. art. 794 along the bounds established by the possession of Ms. Jackson and her ancestors in title, inclusive of the old red house.

| ^CONCLUSION

For the reasons stated, the judgment of the trial court is reversed and the matter is remanded for further proceedings to establish the boundary in accordance with La. C.C. art. 794 as explained in this opinion. Costs of this appeal are assessed against the Herrings.

REVERSED and REMANDED.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.


author: LOLLEY, J.

text:
    CITY OF SHREVEPORT, Plaintiff-Appellee v. Ronald DeBELLO, Defendant-Appellant.
    No. 46,891-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      Susan D. Scott, Shreveport, LA, for Appellant.
    Pettiette, Armand, Dunkleman, Wood-ley, Byrd & Cromwell, Shreveport, LA, by Joseph S. Woodley, Edward F. Jones, for Appellee, City of Shreveport.
    Malone Law Firm, Shreveport, LA, by Mary Ellen Winchell, for Third Party Ap-pellee, Municipal Fire & Police Civil Service Board.
    Before STEWART, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

|!Ronald DeBello appeals a judgment of the First Judicial District Court for the Parish of Caddo, State of Louisiana, in favor of the City of Shreveport (the “City”). For the following reasons, we reverse the trial court’s judgment.

Facts

Ronald DeBello was a police officer employed by the City in the Shreveport Police Department (the “SPD”). On May 2, 2009, while in uniform and operating a marked patrol car, DeBello slashed a tire of a vehicle owned by Shane Lewis, who at the time was being investigated for complaints that he was impersonating a police officer. A witness observed DeBello slash the tire, contacted the SPD, and made a report.

Sergeant Amy Muller was dispatched to the scene, and soon after DeBello called her denying that he had been at the apartments where Lewis’s vehicle was located. While Sgt. Muller was at the scene conducting her investigation, DeBello again called her and then texted her professing his innocence.

After the investigation, DeBello was arrested and charged with misdemeanor criminal damage to property, to which he ultimately pled nolo contendere. Additionally, the SPD conducted an internal affairs investigation, during which DeBello admitted to slashing the tire, as well as making an earlier statement regarding his plan to slash the tire.

On June 25, 2009, a predisciplinary conference was held for DeBello, after which Chief of Police Henry Whitehorn terminated DeBello from the SPD. In reaching that conclusion, Chief Whitehorn found that DeBello had |2violated two SPD General Orders: committing a criminal act, a violation of SPD 100.17, Conformance to Laws; and, bringing degradation to the organization, a violation of SPD 100.22, Unbecoming Conduct.

DeBello appealed his termination to the Shreveport Municipal Fire and Police Civil Service Board (the “Board”), and a hearing was held on March 10, 2010. Following the hearing, the Board determined unanimously that the SPD had acted in good faith and for cause in taking disciplinary action against DeBello; however, the Board reduced the discipline from termination to a 90-day suspension.

The City appealed the Board’s decision to the First Judicial District Court, Caddo Parish, Louisiana. In reviewing the matter, the district court determined that the Board’s determination was arbitrary and capricious and was not based on an application of the law to the evidence; it reversed the Board’s decision and reinstated DeBello’s termination. DeBello appeals the district court’s judgment.

Discussion

On appeal, DeBello raises one assignment of error, arguing that the district court erred in finding that the Board did not act in good faith and was arbitrary and capricious in overturning the termination of DeBello. We agree.

An employee under classified service may appeal from any decision of the civil service board that is prejudicial to him. La. R.S. 33:2501(E)(1). Such an appeal shall be taken to the district court wherein the civil service board is domiciled. Id. Review by the district court does not include a trial \;ide novo. McCoy v. City of Shreveport, 42,662 (La.App.2d Cir.12/05/07), 972 So.2d 1178; Walsworth v. Municipal Fire & Police Civil Service Bd. of City of Shreveport, 567 So.2d 712 (La.App. 2d Cir.1990). Rather, the district court sits as a reviewing court and determines from the record of the Board’s proceedings whether its decision was made in good faith for cause. McCoy supra; Walsworth supra. The hearing “shall be confined to the determination of whether the decision made by the board was made in good faith for cause” and “[n]o appeal shall be taken except upon these grounds.” La. R.S. 33:2501(E)(3). The Board’s decision will not be overturned unless it is manifestly erroneous or arbitrary and capricious. McCoy, supra.

If made in good faith and for statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Lee v. City of West Monroe, 39,611 (La.App.2d Cir.05/11/05), 902 So.2d 1202; McDonald v. City of Shreveport, 26,877 (La.App.2d Cir.05/10/95), 655 So.2d 588. Good faith does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Moore v. Ware, 2001-3341 (La.02/25/03), 839 So.2d 940. Arbitrary or capricious behavior means without a rational basis for the action taken. Id.

The district court may not substitute its opinion for that of the Board. The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Moore, supra. Likewise, the intermediate appellate court’s review of a civil service board’s findings of fact is limited. Id. Those | ¿findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Id.

Here, in its Reasons for Judgment, the district court articulated its opinion that the Board’s action was not made in good faith and for cause, and that its findings were “arbitrarily capricious.” In so finding, the district court affirmed that portion of the Board’s ruling that discipline for DeBello was proper, but overruled the Board’s decision to modify DeBello’s punishment.

Louisiana R.S. 33:2501(0(1) states:

C.(l) After the investigation provided for in Subsection B of this Section, the board may, if the evidence is conclusive, affirm the action of the appointing authority. If the board finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge or other disciplinary action by directing a suspension without pay, for a given period, a reduction in pay to the rate prevailing for the next lower class, a reduction or demotion to a position of any lower class and to the rate of pay prevailing thereof, or such other lesser punitive action that may be appropriate under the circumstances. (Emphasis added.)

Recently, we addressed this precise issue in City of Bossier City v. Vernon, 46,517, 46,518 (La.App. 2nd Cir.11/02/2011), 78 So.3d 153. In that case, Vernon, a Bossier City police officer, was terminated by the police department after making false statements he attributed to an arrestee that he was transporting. On appeal to the Police Civil Service Board, that Board determined that Vernon’s punishment of termination was too severe, |sand pursuant to La. R.S. 33:2501(C)(1), modified the punishment to a 90-day suspension without pay. Unlike DeBello’s case, the district court affirmed the Board’s finding, which we affirmed on the City of Bossier’s appeal, noting:

Pursuant to this statute, the Board had the authority and discretion to modify Vernon’s discipline, if the modification was deemed appropriate. The Board may modify the discipline by “directing a suspension without pay, for a given period.” La. R.S. 33:2501(C(1); Hardison v. Natchitoches Mun. Fire & Police Civil Service Board, 614 So.2d 354 (La.App. 3d Cir.1993).

After reviewing this record on appeal and in light of the evidence before the Board, it is evident that the decision to modify DeBello’s punishment was made in good faith and for legal cause. The Board heard and considered evidence from De-Bello and the City. Primarily, the evidence presented in favor of DeBello addressed his employment record with the department, the steps he has taken since the incident to improve his mental and emotional stability, and his character and reputation. It is clear from the evidence that the incident at issue, although serious and egregious, was an isolated one in De-Bello’s career as a police officer. The evidence in favor of DeBello was undisputed. Considering the record, it would not appear that the Board was arbitrary or capricious in concluding that although De-Bello’s behavior warranted discipline, termination was too severe. Although two Board members articulated a belief in “second chances,” the evidence of record contained more than a simple plea to give DeBello a second chance. Had that been the only evidence offered, a decision to modify DeBello’s punishment may have been arbitrary and | ^capricious. However, in this case there was objective evidence presented to the Board to decide that a modification of DeBello’s punishment was warranted. DeBello’s actions were egregious and deserved punishment; however, the Board, in light of the evidence before it, acted within its statutory authority in modifying DeBello’s punishment. Weighing the facts in this particular matter and the applicable jurisprudence, we conclude that the district court erred in reversing the determination of the Board.

Conclusion

So considering, the judgment of the district court in favor of the City of Shreveport is reversed. Costs of this appeal are assessed to the City of Shreveport, pursuant to La. R.S. 13:5112, in the amount of $147.00.

REVERSED.


author: MOORE, J.

text:
    Kim BATES and Clyde Michael Bates, Plaintiff-Appellees v. LOUISIANA NATIONAL GUARD ARMORY and State of Louisiana Military Department, Defendant-Appellants.
    No. 46,892-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.
    Louisiana Department of Justice Litigation Division, by Victoria R. Murry, Alexandria, LA, for Appellants.
    Richard L. Fewell, Jr., for Appellees.
    Before BROWN, GASKINS and MOORE, JJ.
   MOORE, J.

hThe State of Louisiana Military Department appeals a partial summary judgment, as to liability only, in favor of Kim Bates, who sustained a trip-and-fall accident on the grounds of the Louisiana National Guard Armory in West Monroe, Louisiana. We affirm.

Factual and Procedural Background

On September 5, 2003, a contingent of Guardsmen was returning to Louisiana from a tour in Afghanistan. Ms. Bates, along with several family members, went to the National Guard Armory on Industrial Drive in West Monroe to greet her niece’s husband, who was in the returning group.

According to her deposition, Ms. Bates had never been to the armory before. Her niece handed her a camera and asked her to take pictures when the Guardsmen got off the bus. The crowd was very large, and when the first vehicle (actually a station wagon, not a bus) turned off the road, the crowd started cheering and edging toward the street. Ms. Bates lifted the camera to her eyes and started moving with the crowd. Suddenly, she fell and hit the grass. At first she thought the crowd had shoved her over, but as she got up she discovered there was a line or wire stretched between two posts; it had tripped her and actually cut her legs. She saw other people tripping on the line, but nobody else fell.

Not wanting to disrupt the homecoming, Ms. Bates declined an offer to call an ambulance. However, she alleged that she sustained several injuries requiring medical attention for about a year and resulting in residual pain seven years later.

|2Ms. Bates’s father, Kenneth Eubanks, saw her fall. In deposition, he stated the line appeared to be a telephone wire or other cable about 2 inches off the ground, with no warning signs on or near it. He also stated he could not imagine why it was placed there.

Although the crowd at the homecoming was large, Ms. Bates offered no other depositions or affidavits from anyone else who saw her fall or described the line. She also offered no photographs of the line.

Ms. Bates and her husband filed this suit against the Louisiana National Guard Armory and the State of Louisiana Military Department in August 2004. Ms. Bates took a preliminary default in February 2005, but it was never confirmed. The state finally answered in September 2006, entering general denials and a request for jury trial. The state took no further steps until 2009, when it filed notices to depose Ms. Bates, her husband, father and brother, but the depositions did not actually occur until February 2010.

In September 2010, Ms. Bates filed this motion for partial summary judgment as to liability. She attached the four depositions and argued that the line posed an unreasonable risk of harm of which the state had actual or constructive knowledge. She also argued that a plaintiff can be found free of fault for tripping over an unreasonably dangerous object in her path, as occurred in Nuckley v. Cox Cable New Orleans, 527 So.2d 414 (La.App. 4 Cir.), writ denied, 532 So.2d 115 (1988).

|oThe state opposed the motion, arguing that although under La. C.C.P. art. 966 C(2) the mover had the burden of proving no genuine issue of material fact, Ms. Bates had failed to show that she was free of fault. In support, it offered a portion of Ms. Bates’s deposition. The state offered no other summary judgment evidence.

The court held a hearing, which was not transcribed, in November 2010, and granted Ms. Bates’s motion in June 2011. The judgment stated merely that there was no genuine issue of material fact that the state was solely liable for the accident at issue. The state took this appeal.

Applicable Law

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Adams v. JPD Energy Inc., 45,420 (La.App. 2 Cir. 8/11/10), 46 So.3d 751, writ denied, 2010-2052 (La.11/12/10), 49 So.3d 892. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Sensebe v. Canal Indem. Co., 2010-0703 (La.1/28/11), 58 So.3d 441. A motion for 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. C.C.P. art. 966 B. After adequate discovery or after a case is set for trial, “a motion which shows 14that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966 C(l). When the motion for summary judgment is made and supported as provided in Art. 966, the adverse party “may not rest on the mere allegations or denials of his pleading,” but his response, by affidavits or other proper summary judgment evidence, “must set forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967 B; Cheramie Servs. Inc. v. Shell Deepwater Prod. Inc., 2009-1633 (La.4/23/10), 35 So.3d 1053. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Id. Speculation that a factfinder might disbelieve the mover’s witnesses will not defeat a properly supported motion for summary judgment. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Babin v. Winn-Dixie La. Inc., 2000-0078 (La.6/30/00), 764 So.2d 37.

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sensebe v. Canal Indem. Co., supra; Tillman v. Eldridge, 44,460 (La.App. 2 Cir. 7/15/09), 17 So.3d 69.

A landowner owes a duty to a plaintiff to discover any unreasonably dangerous condition, and either to correct it or warn of its existence. La. C.C. art. 2317; Eisenhardt v. Snook, 2008-1287 (La.3/17/09), 8 So.3d 541. In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test, requiring consideration of (1) the utility of the complained-of condition, (2) the likelihood and magnitude of the harm, (3) |5the cost of preventing the harm, and (4) the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature. Dauzat v. Curnest Guillot Logging Inc., 2008-0528 (La.12/2/08), 995 So.2d 1184. However, the landowner generally has no duty to protect against an open and obvious hazard. Eisenhardt v. Snook, supra, and citations therein. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether a condition is unreasonably dangerous. Id.; Williams v. Ruben Residential Properties, 46,040 (La.App. 2 Cir. 3/2/11), 58 So.3d 534.

Discussion

By two assignments of error, the state urges that summary judgment was inappropriate because Ms. Bates failed to establish that there was no genuine issue of material fact that she was free from fault in the accident. It argues that by her own admission, Ms. Bates “had a camera up in front of her face to take pictures” and “wasn’t looking where she was stepping as she moved along.” Citing La. C.C. art. 2317.1 and R.S. 9:2800, it argues that not every defect in the premises gives rise to liability. Moore v. Oak Meadows Apart ments, 43,620 (La.App. 2 Cir. 10/22/08), 997 So.2d 594; Monson v. Travelers Property & Cas. Ins. Co., 06-921 (La.App. 5 Cir. 4/24/07), 955 So.2d 758. Further, the wire was just as obvious to Ms. Bates in the exercise of reasonable care as it was to the landowner, thus absolving the latter of any liability. Pitre v. Louisiana Tech Univ., 95-1466 (La.5/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996); Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La.2/20/04), 866 So.2d 228. The state contends that Ms. Bates failed to use even ordinary care, and concludes that “all doubt must be resolved in the opponent’s favor,” or against granting the summary judgment. McAdams v. Willis Knighton Med. Ctr., 38,181 (La.App. 2 Cir. 12/19/03), 862 So.2d 1186, and citations therein.

The only description of the wire comes in the deposition of Ms. Bates’s father, Kenneth Eubanks:

I just knew it was some kind of cable, but I didn’t know — I didn’t know what it was. * * ⅜ I can’t believe somebody would leave a — with that many people gathered up, they would have some kind of cable or something like that for somebody to trip over[.] * * * The way it was, it was out of the ground. It was above the ground. It was — it wasn’t just laying [sic ] on the ground, it seemed like it was two inches rise in it above the ground. * * * It was down close to the ground.

Ms. Bates did not see the wire; she stated, “I don’t know what the wire was there for. I know it was a wire. It cut through my leg.” She also stated that after she fell, she noticed other people stumbling over it.

This evidence shows that Ms., Bates tripped on a taut wire suspended a mere two inches above the grassy ground. In common experience, such a wire in such a place is not easy to see, even in the exercise of normal caution. Its latency, and the fact that other people were stumbling on it, strongly support the conclusion that the wire was unreasonably dangerous. After the accident, Mr. Eubanks looked at the wire and could not discern its purpose, if any. A large crowd of well-wishers had come to the Armory to greet returning Guardsmen; the social utility of their presence is obvious. In short, Ms. Bates’s showing satisfied most of the elements to prove an unreasonable risk of harm, under Dauzat v. Curnest Guillot Logging, supra, |7and negated the additional element that the condition was open and obvious, under Eisenhardt v. Snook, supra. We find that this showing constituted proper support for the motion under La. C.C.P. art. 966, and shifted the burden to the state to adduce specific facts that would create a genuine issue for trial. La. C.C.P. art. 967 B.

In response, the state filed the first nine pages of Ms. Bates’s deposition (which Ms. Bates had already filed in its entirety), arguing that because she was trying to take a picture, she was not using normal caution and, at any rate, the wire was open and obvious. However, Ms. Bates’s deposition establishes the exact opposite, that the wire was not open and obvious. Any evidence of the purpose of the wire, its social utility, or the cost of removing it when the public was present — all relevant factors under Dauzat — are conspicuously absent from the state’s showing. The state primarily asks this court to indulge the speculation that at a full trial, a jury might choose to disbelieve Ms. Bates and her father, and conclude that the wire did not pose an unreasonable risk of harm. Such speculation does not suffice to defeat a properly supported motion. Jones v. Estate of Santiago, supra; Babin v. Winn-Dixie La., supra.

Finally, the state somewhat poignantly admits that counsel herself has been persistently unable to communicate with the Armory’s ranking officer and his assistant, as both have been deployed and redeployed to Afghanistan. We are sensitive to counsel’s difficult position, and suggest that these circumstances might have supported a motion for continuance, or perhaps some other relief under the Service-members Civil Relief Act, 50 [gU.S.C.App. § 520, et seq. The fact remains, however, that over six years after suit was filed, and over two months after the motion for summary judgment, the state produced no specific facts that would create a genuine issue for trial. On this record, Ms. Bates’s motion for partial summary judgment is properly supported and she is entitled to judgment as a matter of law. The judgment is affirmed.

Conclusion

For the reasons expressed, the partial summary judgment is affirmed. Any unpaid costs are to be assessed at the conclusion of trial, pursuant to La. R.S. 18:5112.

AFFIRMED.

      . The state also filed an exception of no cause of action on grounds that the named defendant, "Louisiana National Guard Armory,” was merely the name of the building, not an entity capable of being sued, but the record shows no ruling on this.


author: DREW, J.

text:
    SUCCESSION OF John JONES, Sr. Hurie Jones, Plaintiff-Appellant v. Melvin Jones, Defendant-Appellee.
    Nos. 46,904-CA, 46,905-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.
    Hurie Jones, Elm Grove, LA, In Proper Person-Appellant.
    Campbell, Campbell & Madison, by John C. Campbell, Minden, LA, for Appel-lee Melvin Jones, Executor.
    David Rabb, Jr., for Appellee Eddie Faye Jones, Executrix.
    Before BROWN, CARAWAY and DREW, JJ.
   DREW, J.

pNotwithstanding the multiple volumes in this appeal, the sole issue before this court is whether the trial court abused its discretion in denying Hurie Jones’ Motion to Reopen the Succession of John Jones, Sr. (date of death: August 19, 2006).

This record is filled with myriad complaints and issues asserted by the appellant. We can discern no manifest error in the trial court’s decision. The ruling below is certainly not clearly wrong.

Accordingly, we affirm the trial court’s refusal to reopen the succession and order this action be dismissed with prejudice, at the cost of Hurie Jones and the Joe Jones Memorial Foundation, Inc.

PROCEDURAL BACKGROUND

John Jones, Sr. (Jones), died on August 19, 2006. According to the affidavit of death and heirship, Jones was married only once. His wife was Mary Fuller Jones. The couple had nine children: Eddie Faye Jones Oliver, Melvin Jones, John Jones, Jr., Wilier M. Patton, Willie L. Jones, Carrie M. Marshall, Leo Jones, Hu-rie Jones, and Richard Jones. Jones had no other children nor did he ever adopt any others; also, he was predeceased by his parents.

On April 3, 2008, a judgment declared: (1) that the last will and testament of John Jones, Sr. (September 7, 1995), was null and void for lack of form, and (2) that John Jones, Sr., died intestate.

In Succession of John Jones, Sr., 43,365 & 43,366 (La.App.2d Cir.8/7/08), 986 So.2d 809, writ denied, 2008-2023 (La.12/12/08), 996 So.2d 1117, Melvin Jones appealed a trial court judgment which declared invalid a 2003 inter vivos donation of 11 acres to him from Jones, his father. The sole issue in that appeal was the action filed by another son (and Melvin’s brother), Hurie Jones, to annul the donation inter vivos of the 11 acres made by John Jones, Sr., to Melvin Jones.

In our opinion, this court explained that:

An appellate court may not set aside a trial court’s finding of fact absent manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The limited issue presented here is whether the trial court erred when finding that the Donation Deed was null and void. Melvin contends that the donation was valid. A donation inter vivos is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it. La. C.C. art. 1468. The burden of proving the donation is on the donee, and the proof must be strong and convincing. Butler v. Reddick, 431 So.2d 396 (La.1983); Succession of Woolfolk, 225 La. 1, 71 So.2d 861 (1954). A donation inter vivos of corporeal or incorporeal things is null unless done in the form of an authentic act. La. C.C. art. 1536.
Louisiana Civ.Code art. 1540 states, in pertinent part:
A donation inter vivos shall be binding on the donor, and shall produce effect only from the day of its being accepted in precise terms.
The Louisiana Supreme Court has explained that:
[T]he requirement that a donee accept the donation in “precise terms” obligates a donee to use express, formal, and unconditional language in his acceptance. This codal provision, we think, requires an explicit acceptance. A tacit acceptance or an acceptance inferred from the circumstances will not suffice. Rutherford v. Rutherford, 346 So.2d 669, 671 (La.1977)

Hurie Jones prevailed in that action. This court found that the Donation Deed failed because of a lack of acceptance. Although Melvin Jones signed the document at issue, this court held that a mere signature was | snot enough to perfect the donation. Although there are no ritual words required, there must be some explicit language to signify acceptance. A signature alone could not be construed as an acceptance and could not be inferred from the circumstances. This court ordered the donated property returned to the active mass of the succession.

On May 26, 2009, eight of the nine children of Jones filed a petition seeking to be placed into possession of his estate. On September 24, 2009, the trial court signed the judgment of possession placing all nine heirs in possession of the estate. No appeal was taken by anyone.

Over a year later, on September 28, 2010, Hurie Jones and an entity styled the Joe Jones Memorial Foundation, Inc., filed a “Petition to Reopen and Amend the Succession of John Jones, Sr. for Declaratory Judgment and Accounting.” Named defendants were Eddie Fay Jones, Leo Jones, and Melvin Jones, siblings of Hurie Jones. Among Hurie Jones’ allegations in his motion were that Eddie Fay Jones, administratrix of the succession, filed a substantially incomplete judgment of possession which excluded assets, lands, mineral royalty rights, the correct amounts in bank accounts belonging the estate of John Jones, Sr., and continued to pursue fraudulent claims against the Succession of Joe Jones, father of John Jones, Sr., who was alive on March 12, 2002, when an undivided 1/4 interest in land and mineral royalties of Joe Jones was fraudulently transferred to Eddie Fay Jones.

Hurie Jones further based his motion to reopen on his contentions that:

|41. Eddie Fay Jones, as administratrix, never submitted a status report and accounting on the John Jones, Sr., bank accounts;

2. the administratrix filed false claims against the succession which amounted to theft and fraudulent conversion;

3. the administratrix allegedly withdrew large sums from succession accounts;

4. even though Hurie Jones allegedly made many requests, the administra-trix failed to provide a formal accounting of the assets of their father’s estate;

5. while disputing the validity of alleged improvements to the property by the administratrix and Melvin Jones, Hu-rie Jones sought to be reimbursed for improvements he made to their father’s property, including an electrically powered security gate; and

6. movant also wanted left open for future determination the amount of his attorney’s fees.

At a hearing on March 17, 2011, the Motion to Reopen the Succession was denied. In open court, the trial court found that:

• this attack on previous donations was identical to those litigated previously in the Succession of John Jones, Sr.;

• Hurie Jones had known about the property for many years; and

• the donation deed could not be considered because it was not before the court in a proper procedural manner.

On April 18, 2011, the trial court signed the judgment rejecting Hurie Jones’ petition to reopen the succession of John Jones, Sr. Hurie Jones, in proper person, and representing the Joe Jones Memorial Foundation, Inc., appealed.

LAW

La. C.C.P. art. 3393. Reopening of succession

A. After a succession representative has been discharged, if other property of the succession is discovered or for any other proper cause, upon the petition of any interested person, | sthe court, without notice or upon such notice as it may direct, may order that the succession be reopened. The court may reappoint the succession representative or appoint another succession representative. The procedure provided by this Code for an original administration shall apply to the administration of a reopened succession in so far as applicable.
B. After formal or informal acceptance by the heirs or legatees or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. The court may appoint or reappoint the succession representative, if any, or may appoint another, or new, succession representative. The procedure provided by this Code, for an original administration, shall apply to the administration of successions formally or informally accepted by heirs or legatees and in successions where a judgment of possession has been rendered, in so far as same is applicable.
C. The reopening of a succession shall in no way adversely affect or cause loss to any bank, savings and loan association or other person, firm or corporation, who has in good faith acted in accordance with any order or judgment of a court of competent jurisdiction in any previous succession proceedings.

The foregoing article governing reopening of a succession provides a means for dealing with “overlooked” succession assets. See In re Successions of Gurtner, 07-1065 (La.App. 4th Cir.4/9/08), 982 So.2d 952. The Gurtner opinion cited In re Succession of Chatelain, 2000-1267 (La.App. 4th Cir.5/16/01), 788 So.2d 620, writ denied, 2001-1790 (La.10/5/01),798 So.2d 972, and observed “other proper cause” in La. C.C.P. art. 3393 exists only under extremely limited circumstances. An example of proper cause was found where a valid will was discovered after the administration of an intestate succession. Succession of McLendon, 383 So.2d 55 (La.App. 2d Cir.1980). Successions were not reopened to allow for collation, for assertion of forced heirship rights, or for error of law. Estate of Sylvester, 93-731 (La.App. 3d Cir.2/2/94), 631 So.2d 614. The decision of whether or not to reopen a succession is within the sound discretion of the trial court. Chatelain, supra.

DISCUSSION

In the present appeal, Hurie Jones represents himself with a litany of confusing complaints. Hurie Jones states that issues include whether:

• The trial court’s denial of his Petition to Reopen and Amend the Judgment of Possession was a gross abuse of discretion and authority;

• The trial court erroneously refused to reopen and correct the Judgment of Possession signed by Judge Craig on September 28, 2009, based on a will asserted to have been declared null and void;

• Heirs should keep or pay back to the succession land, mineral royalty rights, interest and cash to be shared by all the heirs of the succession;

• The trial court erred and abused its authority in refusing to implement the 2007 judgment signed by Judge Dewey E. Burchett, which left open questions of attorneys’ fees and administrator’s fees; and

• The trial court was arbitrary, capricious and biased in failing to reimburse plaintiffs for property improvements prior to John Jones, Sr.’s death and for a $500 report from the DNR (Dept, of Natural Resources).

Since no one timely appealed the judgment which placed the nine heirs in possession of the estate of John Jones, Sr., that matter is now final.

The trial court found that the property about which Hurie Jones belatedly complained was known to him in this tediously and endlessly litigated family dispute. Any complaints about the actions of the administratrix, the distribution of the assets, and the payment of expenses |7couId have been addressed in a timely appeal, which did not occur. Hurie Jones made no showing that the extremely limited circumstances that justify reopening a succession for “other proper circumstances” exist in this matter.

Nothing in this perplexing record leads us to conclude that the trial court abused its discretion or was clearly wrong in refusing to reopen the succession.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed at the cost of Hurie Jones and the Joe Jones Memorial Foundation, Inc. The matter is dismissed with prejudice.

AFFIRMED.

      . The couple divorced in 1962.

      . Chief Judge Brown dissented.

      . Again, Hurie Jones, plaintiff-appellant here- in, is one of the nine heirs.