author: GASKINS, J.

text:
    Myron B. MARKS, Ralph S. Marks, Myron Stroock, II, W.H. Eiseman, Mark Stroock, III, Carolyn Stroock and SB-10-D, LLC, Plaintiffs-Appellants v. ZIMMERMAN FARMS, LLC, Defendant-Appellee Myron B. Marks, Ralph S. Marks, Myron Stroock, II, W.H. Eiseman, Mark Stroock, III, Carolyn Stroock and SB-10-D, LLC, Plaintiffs-Appellants v. Osborn Farms, LLC, Defendant-Appellee.
    Nos. 44,279-CA, 44,280-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2009.

      J.W. Seibert, III, Vidalia, for Plaintiffs-Appellants.
    Kantrow, Spaht, Weaver & Blitzer by Richard F. Zimmerman, Jr., Baton Rouge, for Defendanb-Appellee Zimmerman Farms, LLC.
    James W. Paxton, Tallulah, for Defendant-Appellee Osborne Farms, LLC.
    Before STEWART, GASKINS and PEATROSS, JJ.
   GASKINS, J.

hThe plaintiffs, owners of Virginia Banks Plantation in Tensas Parish, appeal a trial court judgment finding that Zimmerman Farms, LLC is the owner of a disputed piece of property totaling 4.19 acres, which was formerly part of Virginia Banks Plantation. For the following reasons, we affirm the trial court judgment.

FACTS

The plaintiffs, Myron B. Marks, Ralph S. Marks, Mark Stoock, II, W.H. Eiseman, Mark Stroock, III, Carolyn Stroock, and SB-10-D, LLC, are the owners of Virginia Banks Plantation. This property was acquired by the Marks family in 1902. Property to the south of the plaintiffs’ plantation was acquired by Dr. E.C. Ferguson in 1937. After Dr. Ferguson’s death, his widow, Katie 0. Ferguson, eventually became the owner of the property. In 2002, she conveyed the property to KOF Locust Ridge Farm, LLC (KOF Locust Ridge). In 2003, KOF Locust Ridge sold the land to Osborn Farms, LLC (Osborn Farms).

North of the southern property line described in the deed of Virginia Banks Plantation is a very old barbed wire fence. For many years, the Fergusons and Osborn Farms believed that the fence marked the boundary between their property and Virginia Banks Plantation. The Fergusons, and later Osborn Farms, possessed the disputed property, which totals about 27 acres, up to the fence.

In August 2005, Osborn Farms sold the east side of the property to Zimmerman Farms, LLC (Zimmerman Farms). The north part of the property that Osborn Farms had acquired by 30 years’ acquisitive ^prescription was sold by quitclaim deed. The 134 acres directly south of the disputed property, to which Osborn Farms had title from KOF Locust Ridge, was sold by a cash sale deed. This property was directly south of the 4.19 acre tract. On October 17, 2005, the plaintiffs filed a petition for declaratory judgment against Zimmerman Farms, claiming there was a dispute over possession and ownership caused by the execution and recordation of the quitclaim deed for the 4.19 acre tract from Osborn Farms to Zimmerman Farms.

In April 2006, the plaintiffs filed a petition for declaratory judgment against Osborn Farms claiming that there was a dispute as to possession and ownership for the remaining 23.05 acre tract in the disputed property. The plaintiffs took this action based upon an assertion by Osborn Farms in a dismissed bankruptcy proceeding that, notwithstanding the lack of record title, Osborn Farms had acquired ownership of the tract by adverse possession and acquisitive prescription.

Zimmerman Farms filed an answer and reconventional demand making the following observations. By quitclaim deed, on August 26, 2005, Osborn Farms transferred the subject 4.19 acre tract to Zimmerman Farms. Prior to the transfer, Osborn Farms and its ancestors in title had continuous, uninterrupted, peaceable, public, and unequivocal corporeal possession of the 4.19 acre tract for more than 30 years. For more than 30 years, there has been a barbed wire fence separating the 4.19 acre tract from the plaintiffs’ property, which lies to the north. The plaintiffs and their ancestors in title placed posted signs on the north side of the fence line and hunted only on 13the north side of the fence. The fence had been treated as the boundary line by all parties, including the plaintiffs. For more than 30 years, Osborn Farms and their ancestors in title possessed, mowed, and hunted on the south side of the fence. Osborn Farms and their ancestors in title exercised corporeal possession of the 4.19 acre tract for more than 30 years and therefore acquired ownership by acquisitive prescription because of these factors. Zimmerman Farms claimed that it is the owner of the 4.19 acre tract and is entitled to be declared the owner thereof.

Osborn Farms filed an answer and re-conventional demand also asserting that it and its ancestors in title have possessed the 23.05 acre tract up to the fence line for more than 30 years and therefore Osborn Farms is the owner by acquisitive prescription.

Trial on this matter was held on January 24 and 30, 2008. At trial, extensive testimony was presented concerning acquisitive prescription of the disputed area. The owners of Osborn Farms testified that they and their ancestors in title had long recognized the fence as the boundary line between the properties. They mowed a shooting lane and trimmed trees on the tract. They also hunted on the disputed property up to the fence line and maintained deer stands and deer food plots on the disputed acreage.

At trial, the plaintiffs showed that then-family purchased Virginia Banks Plantation in 1902 and their deeds specified that the boundary of the property lay to the south of the fence line. However, the plaintiffs placed posted signs on the fence line and could not show any acts to interrupt the | ¿possession of the disputed acreage by Osborn Farms, Zimmerman Farms, or their ancestors in title.

The trial court denied the plaintiffs’ petitions for declaratory judgment against Zimmerman Farms and Osborn Farms. The reconventional demand by Zimmerman Farms was granted, finding it to be the owner, by virtue of 30 years’ acquisitive prescription, of the 4.19 acre tract. The trial court also granted the reconven-tional demand in favor of Osborn Farms, declaring it to be the possessor and owner by virtue of 30 years’ acquisitive prescription of the acreage it claimed.

In its reasons for judgment, the trial court identified three issues for decision in this matter. The first issue was whether the defendants exercised possession of the disputed property for more than one year. Second, the trial court was called upon to decide whether the plaintiffs proved title to the disputed property good against the world. Finally, the trial court addressed whether the defendants carried their burden of proving ownership of their respective tracts by acquisitive prescription.

The trial court found that the defendants had been in corporeal possession of the disputed property for a period substantially exceeding one year prior to suit. The trial court also concluded that the plaintiffs proved title to the disputed property good against the world.

In considering whether the defendants showed that they had acquired ownership of the disputed tracts by acquisitive prescription, the trial court found that the plaintiffs acknowledged that La. C.C. art. 794, dealing with acquisitive prescription in boundary cases, was applicable to the claim by |5Osborn Farms. However, the plaintiffs contended that, because Zimmerman Farms acquired title by quitclaim deed from Osborn Farms to the disputed 4.19 acre tract, their claim is a title action and not a boundary action. Consequently, the plaintiffs insisted that La. C.C. art. 794, dealing with acquisitive prescription in boundary cases, does not apply to that claim.

The trial court found that Osborn Farms clearly showed that it had obtained ownership of its portion of the disputed property by virtue of 30 years’ acquisitive prescription. The trial court found that Osborn Farms and its ancestors in title had been in possession of the disputed property at least since 1963. The trial court also concluded that La. C.C. art. 794 was applicable to Zimmerman Farms and that Zimmerman Farms could tack its possession to its ancestors in title. The trial court held that, based upon the evidence presented at trial, Osborn Farms and Zimmerman Farms were owners of their respective portions of the disputed property by virtue of 30 years’ acquisitive prescription. The plaintiffs appealed and Zimmerman Farms has answered the appeal.

ACQUISITIVE PRESCRIPTION AND TACKING

The plaintiffs acquiesce in the judgment finding that Osborn Farms acquired ownership of the approximately 23 acre tract of disputed property by virtue of acquisitive prescription. The plaintiffs appealed the trial court judgment only as to the reconventional demand regarding Zimmerman Farms. The plaintiffs claim that the trial court erred in applying La. C.C. art. 794 to find that Zimmerman Farms is the owner of the 4.19 acre tract.

| r,The plaintiffs assert that Zimmerman Farms can only pursue their claim of ownership under La. C.C. arts. 3441 and 3442, the general rules of acquisitive prescription, rather than under La. C.C. art. 794 which deals with prescription to visible boundaries. According to the plaintiffs, if acquisitive prescription accrues in favor of a party adversely possessing immovable property, that fact does not in itself convey ownership. The plaintiffs cite comment (d) to La. C.C. art. 3449 and La. C.C. art. 3452 for the proposition that prescription does not take place by operation of law, but must be set up by the party. The plaintiffs urge that the quitclaim deed |7from Osborn Farms to Zimmerman Farms could only convey the right to plead prescription.

The plaintiffs assert that quitclaim deeds are translative of title and are sufficient to support a plea of prescription based on title. However, the plaintiffs claim that, because Zimmerman Farms thought it had valid title to the 4.19 acre tract, La. C.C. art. 794 does not apply and cannot be used by Zimmerman Farms to establish 30 years’ acquisitive prescription to visible boundaries. The plaintiffs argue that, had the transactions between Osborn Farms and Zimmerman Farms only included or involved the adjacent 134 acres of Ferguson property lying south of the disputed 4.19 acre tract, the matter would fall squarely under La. C.C. art. 794.

According to the plaintiffs, boundary prescription under La. C.C. art. 794 does not require a juridical link with respect to the area in dispute, although it does require a juridical link with respect to the adjacent property. They go on to argue that, in addition to the requirement of a visible boundary encompassing the disputed property, there can be no associated title claim to the disputed and adversely possessed property. In support of this contention, the plaintiffs cite repealed La. C.C. art. 852 which stated that one cannot prescribe against his own title. The plaintiffs argue that acquisition by Zimmerman Farms of a deed to the 4.19 acre tract removed |sits adverse possession claim from one under La. C.C. art. 794 to one under La. C.C. arts. 3441 and 3442. The plaintiffs essentially claim that the assertion of ownership by title amounted to a renunciation by Osborn Farms of its adverse possession and reverted title back to the plaintiffs. They contend that Zimmerman Farms would then have to commence possession anew for purposes of acquisitive prescription and could not tack to the possession of Osborn Farms or its ancestors in title. The plaintiffs claim that Zimmerman Farms cannot establish privity of title between it and any ancestor in title of Osborn Farms to the disputed 4.19 acre tract, which is a requirement for Zimmerman Farms to claim ownership by 30 years’ acquisitive prescription under its quitclaim deed. The plaintiffs claim that this lack of privity of title is fatal to the claim of Zimmerman Farms. The plaintiffs admit that they have found no cases in which a litigant has asserted ownership by acquisitive prescription and also by a deed translative of title.

Zimmerman Farms disputes the plaintiffs’ argument that only the right to assert ownership by acquisitive prescription was conveyed by the quitclaim deed. Zimmerman Farms points out that it filed a recon-ventional |9demand against the plaintiffs, seeking a declaratory judgment that Osborn Farms and its ancestors in title possessed the 4.19 acre tract for more than 30 years and that Osborn Farms was the owner when it executed the quitclaim deed in favor of Zimmerman Farms.

Zimmerman Farms also argues that it can tack its possession to that of its predecessors under either La. C.C. art. 794 or La. C.C. arts. 3441 and 3442. Zimmerman Farms claims that no court has held that a party cannot tack possession of its ancestors in title, within visible bounds, to more land than the title called for under La. C.C. art. 794 if the party has a quitclaim deed to the same property. Zimmerman Farms points out that it also has a cash sale deed to an adjoining tract which totals approximately 134 acres. Zimmerman Farms asserts that it is able to tack its possession under La. C.C. art. 3442. It urges that the quitclaim deed is the juridical link required in order for Zimmerman Farms to be able tack the possession of its ancestors in title.

Legal Principles

Ownership of immovable property may be acquired by the prescription of 30 years without the need of just title or possession in good faith. La. C.C. art. 3486. Ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. Under the general codal provisions on acquisitive prescription, a possessor lacking good faith and/or just title may acquire prescriptive title to land by corporeally possessing a tract for 30 years with the intent to possess as owner. Such possession confers prescriptive title |inupon the possessor only when it is continuous, uninterrupted, peaceable, public and unequivocal, and confers title only to such immovable property as is actually possessed. La. C.C. arts. 3424, 3476, 3486, 3487, 3488; Brown v. Wood, 451 So.2d 569 (La.App. 2d Cir.1984), writ denied, 452 So.2d 1176 (La.1984); Brunson v. Hemler, 43,347 (La.App. 2d Cir.8/13/08), 989 So.2d 246, writ denied, 2008-2297 (La.12/12/2008), 996 So.2d 1119.

Actual possession must be either inch-by-inch possession or possession within enclosures. According to well-settled Louisiana jurisprudence, an enclosure is any natural or artificial boundary. La. C.C. art. 3426; Brunson v. Hemler, supra. The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Brun-son v. Hemler, supra.

Under La. C.C. art. 794, a title holder may acquire more land than his title calls for by possessing property beyond his title for 30 years without interruption and within visible bounds. Such title holder may attain the 30-year posses-sory period — which is necessary to perfect prescriptive title in the absence of good faith and just title — by “tacking” on the possession of his ancestor in title. La. C.C. arts. 794, 3442. Possession is only transferable by universal title or particular title. La. C.C. art. 3441. When possession is so transferred, the possession of the transferor is tacked to that of the transferee if there has been no interruption of possession. La. C.C. Inart. 3442. Under these provisions, privity of contract or estate is an essential prerequisite to tacking. Brown v. Wood, supra; Brunson v. Hemler, supra.

Privity denotes merely a succession of relationships to the same thing, whether created by deeds, or by other act, or by operation of law. If one, by agreement, surrenders his possession to another, and the acts of the parties are such that the two possessions actually connect, the latter commencing at or before the former ends, leaving no interval for the constructive possession of the true owner to intervene, such two possessions are blended into one, and the limitation period upon the right of each owner to reclaim the land is thereby continued; indeed that purpose of continuous possession is the continuous ouster of the owner. Harang v. Golden Ranch Land & Drainage Co., 143 La. 982, 79 So. 768 (1918).

The legal principles which govern tacking under La. C.C. art. 794 are in some respects different and distinct from the principles which govern tacking under La. C.C. arts. 3441 and 3442. La. C.C. art. 794 deals with boundary prescription, strictly speaking, while La. C.C. arts. 3441 and 3442 provide general rules which refer in broader terms to acquisitive prescription of property, generally. Brown v. Wood, supra.

In Brown v. Wood, supra, this court noted that tacking under La. C.C. art. 794 is different from tacking under the general tacking provisions of La. C.C. arts. 3441 and 3442 in the following respect:

Under Article 794, the privity of title between the possessor and his ancestor in title need not extend to the property to which the possessor asserts prescriptive title; under Article 794, the juridical link, or written instrument which passes to |12the possessor from his ancestor in title need not encompass or include the particular property to which the possessor claims prescriptive title. On the other hand, it is generally conceded under the general tacking provisions of Articles 3441 and 3442 and their statutory pre-cursors, that tacking is only allowed with respect to property that is included and described in the juridical link between the possessor’s ancestor in title and the possessor himself.
Simply stated, under Art. 794 (old Art. 852), one may utilize tacking to prescribe beyond title on adjacent property to the extent of visible boundaries, but under the general prescriptive articles, Arts. 3441 and 3442, tacking may be utilized to prescribe only to the extent of title. As was succinctly stated by former Justice, then Judge Tate, in Stanford v. Robertson, 144 So.2d 747, 750 (La.App. 3d Cir.1962),
“Under LSA-C.C. art. 3499, the possession of the predecessors in title cannot be added to that of the present possessor, unless the title of the present possessor includes the property in dispute, else there is no privity of estate such as is necessary to make up the thirty years adverse possession “as owner”. On the other hand, under LSA-C.C. Art. 852, the tacking of successive possessions up to the established visible bound between two estates is permitted, whether or not the land in dispute is included within the title description of the party pleading prescriptive title under this article.” (Citations omitted).
However, when correctly viewed, there still must be some juridical link to effectuate tacking under either species of tacking, whether it is Article 794 or Articles 3441 and 3442.
The fact that Article 794 envisions that tacking requires some juridical link or privity of title between the possessor and his ancestor is clear. That statute affords prescriptive title only in instances where there has been thirty years of possession by the possessor “and his ancestors in title.” (Emphasis added). The fact that Art. 794 envisions tacking only where there is privity of title is therefore clear from the fact that this Article expressly authorizes tacking not in terms of a predecessor in possession, but in terms of an “ancestor in title.” In summary, tacking allows one to prescribe beyond title under Art. 794, and not under Articles 3441 and 3442; but nevertheless some juridical link, or some title privity in contract or estate, is required before tacking is allowed under | ^either Articles 3441 and 3442 or 794. [Citations and footnotes omitted.]
Privity of estate or contract is essential to tacking possessions for the theoretical reason that-absent such privity-succeed-ing possessions of the same tract are legally viewed as merely unconnected acts of trespass. In the absence of privity, acts of adverse possession by different possessors “can be construed only as a series of trespasses.” Upon the termination “of each of these acts the possession returns, by operation of law, to the record owner of the property.” Roberson v. Green, [91 So.2d 439 (La.App. 2d Cir.1956) ], at 447. See also, Buckley v. Catlett, [203 La. 54, 13 So.2d 384 (1943) ]; Emmer v. Rector, [175 La. 82, 143 So. 11 (1932) ]; Sibley v. Pierson, [125 La. 478, 51 So. 502 (1909) ].

Discussion

The plaintiffs contend that, because Zimmerman Farms had a quitclaim deed to the property, it was precluded from claiming ownership through acquisitive prescription to visible boundaries under La. C.C. art. 794. The plaintiffs claim that Zimmerman Farms can only assert ownership to the extent of its title under La. C.C. arts. 3441 and 3442. According to the plaintiffs, Zimmerman Farms did not have privity of title with its ancestors in title to the 4.19 acre tract and therefore, could not prove ownership of the property. The plaintiffs argue that the execution of the quitclaim deed was tantamount to a renunciation by Osborn Farms of its prior possession of the property to visible boundaries.

We do not find any codal or jurisprudential authority to support the plaintiffs’ arguments. The trial court was correct in applying La. C.C. art. 794 to this case to find that Zimmerman Farms proved ownership of the 4.19 acre tract by virtue of 30 years’ acquisitive prescription. Zimmerman |14Farms acquired property immediately adjacent to the disputed tract by a cash sale deed in August 2005. Zimmerman Farms had the required privity of title to the adjoining property. The evidence in this case shows that Osborn Farms and its ancestors in title possessed the disputed property up to the fence line, which included the disputed property. Zimmerman Farms continued that possession, up to the fence line, after it acquired the adjoining property in 2005. Zimmerman Farms is entitled to tack its possession to that of its ancestors in title. By this tacking of possession, Zimmerman Farms has established ownership of the disputed 4.19 acre tract by 30 years’ acquisitive prescription, without interruption, within visible bounds, under La. C.C. art. 794.

The case of Brown v. Wood, supra, indicates that the plaintiffs are not correct in arguing that Zimmerman Farms could not show ownership by acquisitive prescription under La. C.C. art. 794 because it had a quitclaim deed to the property. In Brown, the defendants purchased property by deed in 1956 from Mr. Oliveaux. The property description did not include a tract that later became the subject of the dispute. The property purchased and described in the deed adjoined the disputed tract. After their purchase, the defendants performed various acts of corporeal possession on a portion of the disputed tract, until interruption of their possession by the filing of suit in 1982 by the plaintiffs who claimed that they had record title to the disputed acreage. In 1981, the defendants acquired a quitclaim deed to the disputed property from Mr. Oliveaux. The court noted that the defendants had not possessed the disputed property themselves for the requisite 3011syears and had only possessed a portion of the disputed property. The court found that the defendants were entitled to tack their possession to that of Mr. Oliveaux to achieve ownership by virtue of 30 years’ acquisitive prescription of only that portion of the disputed property that the defendants and Mr. Oliveaux had possessed.

The defendants in Brown argued that they were also entitled to tack possession under the quitclaim deed. The court found that, since the quitclaim deed was executed while the dispute over the ownership of the contested acreage was “boiling,” the deed was discounted because it was confected under suspicious circumstances. The court cited Stutson v. McGee, 241 La. 646, 130 So.2d 403 (1961), for the proposition that the quitclaim deed executed while a controversy over the property was brewing would not be accepted and applied.

In Brown v. Wood, supra, the court also noted that, when that quitclaim deed was executed in 1981, Mr. Oliveaux had been out of possession of the property for many years. Therefore, Mr. Oliveaux had no accrued possession to transfer at that time. The court stated that, in the strictest sense, privity may not be retroactively established subsequent to a transfer of possession. However, the court never stated that the execution of a quitclaim deed precluded the consideration of whether a party could assert ownership by 30 years’ acquisitive prescription to visible boundaries under La. C.C. art. 794.

In the present case, Osborn Farms was in possession of the disputed property when it executed both the quitclaim deed in favor of Zimmerman |1fiFarms and the cash sale deed to the adjoining property. The possession of Osborn Farms and its ancestors in title transferred to Zimmerman Farms. Under the provisions of La. C.C. art. 794, Zimmerman Farms clearly established ownership by acquisitive prescription of the disputed 4.19 acre tract. We do not find that the execution of the quitclaim deed precluded Zimmerman Farms from asserting ownership by acquisitive prescription and tacking its possession to that of its ancestors in title under La. C.C. art. 794.

CONCLUSION

For the reasons stated above, we affirm the decision of the trial court finding that Zimmerman Farms is the owner of the disputed 4.19 acre tract by virtue of 30 years’ acquisitive prescription. Costs in this court are assessed to the plaintiffs.

AFFIRMED.

      . La. C.C. art. 3449 deals with renunciation of prescription after it has accrued. The statute provides:
      Prescription may be renounced only after it has accrued.
      Comment (d) provides:
      d) According to the civilian tradition, the renunciation of prescription is not an act translative of ownership. It is a unilateral act that does not require acceptance by the other party; moreover, it does not require any formality. See 3 Planiol et Ripert, Traité pratique de droit civil frangais, 748 (2d ed. Picard 1952):
      "Renunciation is a unilateral act that does not require acceptance by the other party....
      "The possessor who renounces prescription when it has run in his favor, seems to divest himself of his right and to agree to an act translative of ownership in favor of somebody else. But this is so merely in appearance. As has already been seen (no. 2709) prescription does not take place by operation of law. It must be set up by the party. The Court cannot do so of its own motion. Consequently, if it be a means of acquiring, it is still necessary that use be made of it. When he, in whose favor prescription has run, renounces it, he refrains from making use of a means that the law offers him to become owner. It may accordingly be said that he threw away an opportunity to acquire, that he refused to have a piece of property become part of his patrimony. It would, however be a mistake to say that he had alienated it, that he had transmitted the ownership to another. Article 2221 speaks of the renunciation of prescription as 'the abandonment of an acquired right.' But this term 'acquired' connotes merely the right to set up the plea of prescription. It is of the right, and not of the ownership which is not as yet acquired, that the possessor despoils himself by his renunciation.
      La. C.C. art. 3452 provides:
      Prescription must be pleaded. Courts may not supply a plea of prescription.

      . La. C.C. art. 794 provides:
      When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than 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.

      . La. C.C. art. 3441 specifies:
      Possession is transferable by universal title or by particular title.
      La. C.C. art. 3442 provides:
      The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.

      . In its answer to the appeal, Zimmerman Farms argues that, if this court finds that Zimmerman Farms had not proven ownership of the 4.19 acre tract by acquisitive prescription, the plaintiffs would be required to prove title to the property good against the world. The trial court found that the plaintiffs had satisfied that burden. Zimmerman Farms claims that holding is in error and attacks three deeds in the plaintiffs' chain of title. Those deeds were executed in 1836, 1839, and 1844, describing the Virginia Banks Plantation property as being located in Concordia Parish, not Tensas Parish. The deeds were recorded in Concordia rather than Tensas Parish. Zimmerman Farms argues that these are serious title issues defeating the plaintiffs’ claim of title good against the world. Zimmerman Farms also notes that the plaintiffs did not present any expert testimony supporting the argument that they proved title good against the world. Because we find that Zimmerman Farms has established ownership of the disputed property by virtue of 30 years’ acquisitive prescription under La. C.C. art. 794, we do not reach a consideration of Zimmerman Farm’s answer to the appeal.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge,

license: Public Domain

text:
    STATE of Louisiana v. Andrew W. HOLLAND.
    No. 2008-KA-1116.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 20, 2009.

      Charles J. Ballay, District Attorney of Plaquemines Parish, Robert M. White, Assistant District Attorney of Plaquemines Parish, Belle Chasse, Louisiana, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, Louisiana, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge,

h STATEMENT OF THE CASE

On October 20, 2006, the State of Louisiana charged Andrew W. Holland (hereinafter “Holland” or “defendant”) by bill of information with one count of violating La. R.S. 40:967(C), possession of cocaine. On November 6, 2006, Holland appeared before the trial court for arraignment and pled not guilty to the charge. On February 14, 2007, the trial court heard defendant’s motion to suppress evidence, motion to suppress confession, motion to suppress identification, and held a preliminary hearing. At the close of the hearing, the trial court denied defendant’s motions to suppress evidence, found sufficient probable cause to substantiate a charge of simple burglary, and held that the motions to suppress identification and confessions were moot.

On May 7, 2008, the State brought its case against Holland to trial. Prior to trial, Holland elected to have his case tried before the judge. The State introduced three exhibits and presented testimony from one individual. The defendant introduced no exhibits and testified on his own behalf. After the close of evidence and oral argument, the trial court found Holland guilty of possession of cocaine.

|20n June 3, 2008, Holland filed a motion for appeal with the trial court. The record in this matter was lodged with this Court on August 26, 2008. On December 3, 2008, the trial court sentenced defendant to two years at hard labor with the Department of Corrections and ordered defendant to pay $500.00 and court costs. Further, the trial court suspended the sentence and placed the defendant on three years active probation.

STATEMENT OF FACT

At trial the State introduced testimony from one witness, Dudley Curt Michael Johnson, a deputy with the Plaquemines Parish Sheriffs Office. Specifically, Deputy Johnson testified that he arrested the defendant on October 10, 2006, on Highway 23 at its intersection with Engineer’s Road in Plaquemines Parish. Deputy Johnson explained that the defendant’s arrest came about as a result of a traffic stop. Deputy Johnson explained that he stopped the vehicle because it had an expired license plate. Deputy Johnson further testified that the car was occupied by two people. Deputy Johnson first spoke with the driver, James C. Moore. Deputy Johnson testified that Moore informed him that he was the owner of the vehicle and that he and the guest passenger were first going to get gasoline and then they were going to a boat in Empire, Louisiana. Deputy Johnson testified that Empire, Louisiana is approximately forty to fifty miles from the site of the stop, which is closer to Belle Chase, Louisiana. Deputy Johnson next spoke with the defendant, who informed him that they were on their way to a store to get something to eat.

Deputy Johnson explained that his suspicions were aroused as a result of the conflicting stories given by Moore and the defendant. Accordingly, Deputy Johnson questioned the men further, asking them specifically whether there were ^narcotics in the vehicle. Deputy Johnson asked Moore if he would consent to a search of the vehicle, and Moore agreed. Both Moore and the defendant exited the vehicle while Deputy Johnson searched the vehicle. Deputy Johnson testified that he found one white, rock-like substance under, the passenger seat of the vehicle. Deputy Johnson conducted a field test on the item, and it tested positive for cocaine. Deputy Johnson noted that the defendant was sitting in the passenger seat. Accordingly, Deputy Johnson then arrested the defendant and Moore and continued searching the vehicle. Further investigation of the vehicle revealed two further white, rock-like items under the driver’s seat. Additionally, Deputy Johnson testified that he observed a soda can in the center console which was found to contain two glass pipes. Deputy Johnson noted that the pipes were of a type used for smoking crack cocaine and that the soda can was accessible to both the driver and the passenger of the vehicle. Officer Johnson testified that both Moore and the defendant denied ownership of the narcotics. Finally, Deputy Johnson identified the defendant as the guest passenger as well as State’s exhibits one and two. On cross-examination, Deputy Johnson admitted that he had no way of knowing who put the narcotics under the seat or who owned the two glass pipes. Following Deputy Johnson’s testimony the State rested its case.

The record indicates that Holland testified on his own behalf. Specifically, the defendant testified that he resides in Mor-rispoint, Mississippi and that he works at Daybrook Fisheries in Empire, Louisiana. Holland testified that Moore was his captain at the time. Further, Holland testified that on the night of the incident he was working at the fishery when Moore called him and asked if he wanted to drive with him to get some food and gas for Moore’s truck. Holland stated that the only place open at that time of night that had both food and gas was near where they Uwere stopped by Deputy Johnson. Additionally, Holland testified that he did not know that crack cocaine was under his seat on the night of the incident. Likewise, Holland also stated that he did not know that the soda can in the center console of the vehicle contained two crack pipes.

On the other hand, Holland admitted to having one prior conviction for driving while intoxicated but noted that his DWI conviction occurred in North Carolina over ten years prior to his trial testimony. Further, while he denied smoking crack cocaine on the night of the incident, Holland admitted to smoking it once approximately ten years prior to trial. Further, Holland testified that other people had used Moore’s truck. Specifically, Holland stated: “Well he [Moore] had the guys that was working on his house during the time of the storm, they was driving his truck back and forth getting supplies for him, you know, for his house. That’s what he told me at the time, so I’m assuming whoever had his truck was using it.” After Holland testified, the State and defense submitted the matter to the trial court which found the defendant guilty of possession of cocaine.

ERRORS PATENT

A review of the record for errors patent reveals the court granted Holland’s appeal on June 3, 2008 prior to his sentencing on December 3, 2008. Although an appeal may be taken only from a conviction and sentence, this court has held that it is not necessary to dismiss an appeal taken after conviction but before sentencing because “[dismissing the appeal would simply result in a delay of the appellate process and hinder defendant’s right to appeal.” State v. Coldman, 99-2216, p. 4 (La.App. 4 Cir. 8/30/00), 769 So.2d 131, 134, citing State v. Martin, 483 So.2d 1223, 1225 (La.App. 4 Cir.1986) and State v. Thompson, 98-0988 (La.App. 4 Cir. 1/26/00), 752 So.2d 293. Accordingly, this error is harmless.

I.,DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his sole assignment of error, the defendant contends that the evidence adduced at trial was insufficient to support his conviction for possession of cocaine. Specifically, the defendant contends that the evidence was insufficient to establish that the defendant was in constructive possession of the cocaine found under the seat of the car in which he was a guest passenger. On the other hand, the State notes that the defendant stipulated to the fact that the three white, rock-like items found in Moore’s car tested positive for cocaine. Thus, the State notes correctly that it was obligated only to prove that Holland was in possession of the cocaine and had the general intent to possess the cocaine. Accordingly, the State asserts that the direct and circumstantial evidence presented at trial is sufficient to sustain the defendant’s conviction for possession of cocaine.

The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305,1311 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. State v. Shaw, 2007-1427, p. 15 (La.App. 4 Cir. 6/18/08), 987 So.2d 398, 408. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most [¿favorable to the prosecution must be adopted. Id. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992) citing State v. Rosiere, 488 So.2d 965, 968 (La.1986).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 820 (La.1987). If a rational trier of fact reasonably rejects the defendant’s hypothesis of innocence, that hypothesis fails; and, unless another one creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676, 680 (La.1984).

In this case, the defendant was convicted of possession of cocaine which is defined by La. R.S. 40:967(C). As this Court noted in State v. Guillard, 98-0504, p. 4 (La.App. 4 Cir. 4/7/99), 736 So.2d 273, 276:

|7To support a conviction for possession of cocaine, the State must prove that the defendant was in possession of the illegal drug and that he knowingly possessed it. State v. Lavigne, 95-0204 (La.App. 4th Cir.5/22/96), 675 So.2d 771, writ den., 96-1738 (La.1/10/97), 685 So.2d 140; State v. Chambers, 563 So.2d 579 (La.App. 4th Cir.1990). The State need not prove that the defendant was in actual physical possession of the cocaine; constructive possession is sufficient to support a conviction ...
The elements of knowledge and intent are states of mind and need not be proven as facts, but rather may be inferred from the circumstances. The factfinder may draw reasonable inferences to support these contentions based upon the evidence presented at trial. State v. Reaux, 539 So.2d 105 (La.App. 4th Cir.1989).

Additionally, this Court has held that “mere presence in an area where drugs are found is insufficient to establish constructive possession.” State v. Toups, 2000-1944, p. 5 (La.App. 4 Cir. 10/8/03), 859 So.2d 768, 772. Further, factors to be considered in determining whether a defendant exercised dominion and control over drugs are: 1) the defendant’s knowledge that illegal drugs were present in the area; 2) the defendant’s relationship with the person in actual possession; 3) the defendant’s access to the area where the drugs were found; 4) evidence of recent drug use; 5) the defendant’s proximity to the drugs; and 6) evidence that the area was being frequented by drug users. Id.

In the present case, the record establishes that Deputy Johnson stopped Moore’s vehicle because of an expired license plate. After receiving inconsistent stories from Moore and the defendant concerning their presence at the scene, Deputy Johnson asked both men to leave the vehicle and obtained permission from Moore to search the vehicle. Deputy Johnson’s search of the vehicle resulted in the discovery of two rocks of crack cocaine under Moore’s seat, one rock of crack cocaine under the defendant’s seat, and two glass pipes both of which were charred on one end with copper mesh and containing cocaine residue on the other end. | sDeputy Johnson then arrested Moore and the defendant for possession of narcotics. Further, the defendant testified at trial that he was unaware of the presence of the glass pipes and crack cocaine in the car and also testified that Moore allowed other people to use his truck.

The record indicates that the defendant denied any prior knowledge of the crack cocaine and glass pipes found in Moore’s vehicle. On the other hand, the record indicates that the trial court thought little of the defendant’s protestations, insinuating that he and Moore’s story of traveling approximately forty miles to purchase gasoline and food was not credible. Thus, the trial court surmised that the defendant’s suspect account called into question his denial of culpability. The trial court’s credibility call on this point is buttressed by the fact that the State elicited testimony from Deputy Johnson to the effect that Moore and the defendant did not need to travel forty miles to secure gasoline. The State did not rebut the defendant’s assertion that their alleged destination was the nearest establishment open late at night that sold both gasoline and food.

The record indicates that Moore and the defendant were co-workers. Specifically, Moore was the defendant’s captain at Day-brook Fisheries in Empire, Louisiana. However, the record is silent as to any other details concerning the nature or quality of the defendant’s relationship with Moore. In regards to the defendant’s access to the area where the drugs were found, the record indicates that Deputy Johnson found one rock of crack cocaine directly under the defendant’s seat in Moore’s vehicle. Further, the record indicates that Deputy Johnson found two used crack pipes concealed within a soda can in the vehicle’s center console. | aThus, it is conceivable that while the contraband items were concealed, the crack cocaine and the two pipes were accessible to the defendant. Likewise, the record indicates that the defendant was in very close proximity to the concealed contraband.

As for evidence of recent drug use, the record reveals that Deputy Johnson discovered two glass pipes which exhibited charring on one end and cocaine residue on the other. However, the record is silent as to whether Deputy Johnson found any lighters or ignition devices in the car or on the person of Moore and the defendant. Additionally, the defendant asserted that he had not smoked crack cocaine for at least ten years. Indeed, the State failed to adduce any evidence to suggest that the either of the two pipes found were warm, that defendant was under the influence of crack cocaine at the time of his arrest, or whether the defendant’s fingerprints were on either of the two pipes. Lastly, the record is silent as to whether the area in which the defendant was arrested was frequented by drug users. Accordingly, the evidence is equivocal as to whether the defendant knew that the crack cocaine was in the vehicle and had the requisite dominion and control over the narcotics to sustain Ms conviction and sentence.

Upon review of the applicable jurisprudence, both this Court and the Louisiana Supreme Court have held in similar cases that the evidence was insufficient to conclude beyond a reasonable doubt that the contraband was subject to a given defendant’s dominion and control. For example, in State v. Bell, 566 So.2d 959 (La.1990), the police approached a vehicle to request that the occupants, the driver and his passenger, turn down music blaring from the radio. One officer noticed a distinctively wrapped package, containing what was later determined to be cocaine, among some cassette tapes in a plastic console between jinthe front seats. Both men were convicted of attempted possession of cocaine, which convictions were affirmed by this Court. See State v. Davis, 555 So.2d 633 (La.App. 4 Cir.1989), affd. in part and remanded in part, State v. Bell, supra. There had been no evidence presented that the passenger had any other drugs in his possession or on his person, that he appeared under the influence of narcotics, or that he had possession of any drug paraphernalia. The court also noted that the vehicle was parked only two doors from the driver’s residence. On review, the Louisiana Supreme Court found that, based on the passenger’s mere presence in the car close to the sealed package, “even assuming he was aware of the contents,” a rational trier of fact could not have concluded that the passenger exercised dominion and control over the package, or that he willfully and knowingly shared the right to control it with the driver. State v. Bell, 566 So.2d at 960.

In State v. Jackson, 557 So.2d 1034 (La.App. 4 Cir.1990), an individual named Steele threw down drugs at the sight of police and ran into his apartment. The police followed and saw the defendant Jackson standing at a homemade bar on which were displayed a glass pipe with cocaine residue, another pipe, a mirror with trace amounts of cocaine on it, a razor blade with traces of cocaine on it, test tubes, glasses, and a bag containing a material used to cut or dilute cocaine. This Court held that because there was no indication that the residue-containing pipe was warm, that the defendant’s fingerprints were on any of the items, that the defendant tested positive for the presence of cocaine, or that the defendant was anything more than a guest in the apartment, the evidence was insufficient to establish that the defendant exercised dominion and control over the objects which had cocaine residue in or on them.

InThe foregoing review of the caselaw indicates that the Louisiana Supreme Court and this Court have reversed convictions and sentences in similar factual situations.

CONCLUSION

Based on the facts and applicable jurisprudence, this Court finds that a rational trier of fact could not have concluded that the defendant exercised dominion and control over the package, or that he willfully and knowingly shared the right to control it with the driver. Accordingly, we reverse the judgment of the trial court and vacate the defendant’s conviction and sentence.

REVERSED AND VACATED.

      . The record indicates that Moore eventually pled guilty to the charge.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Shirley GARNER v. Darryl J. THOMAS, Sr.
    No. 2008-CA-1448.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2009.
    Steve H. Benton, Benton Benton & Benton, Baton Rouge, LA, for Plaintiff/Appel-lee.
    Christine Remy, Tracy G. Sheppard, Jessica D. Van Vrancken, Remy Law Firm, Gretna, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR. and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

11 Darryl J. Thomas appeals from the judgment of the trial court granting plaintiff, Shirley Garner, rights of monthly visitation with her grandsons, DTJ and MT.

The basic facts are not disputed. The plaintiffs daughter, Skekita Garner Thomas, died on June 23, 2005. At the time of her death, Mrs. Thomas was married and living with her husband, the defendant herein, and the couple’s two minor children born of the marriage; DTJ and MT. At the time of the hearing in the trial court, DTJ was thirteen years old and MT was four years old. It is also undisputed that Mrs. Thomas’ parents enjoyed a close and loving relationship with the children prior to her death.

Thereafter, Mrs. Garner filed a Petition for Grandparent Visitation in Civil District Court for the Parish of Orleans, the domicile of Mr. Thomas, DTJ and MT. According to the petition, following Mrs. Thomas’ death, Mrs. Garner was denied access to the children, and was forced to institute proceedings in the Family Court |2of East Baton Rouge Parish, where the Thomas family was residing temporarily in the aftermath of Hurricane Katrina. The parties entered into a consent order providing for visitation for two years, following which the matter, if not resolved amicably by the parties, would be taken up in Orleans Parish. Mrs. Garner alleged that despite her good faith efforts, she has not been successful in arranging for visitation with her grandsons.

The trial court heard Mrs. Garner’s Rule for Grandparent Visitation on September 9, 2008. Mrs. Garner’s uncontro-verted testimony established her relationship to the minor children, and the fact that their mother died in June of 2005. Mrs. Garner has been married to Thomas Garner for forty-two years, and is a retired state employee. Her husband is currently employed. Prior to her daughter’s death, Mrs. Garner had a good relationship with the boys, and exchanged visits with them as a family. Mr. Thomas never registered an objection or complaint to her contact with the children. She often kept the children and prepared meals for them during her daughter’s terminal illness, again without objection from Mr. Thomas. Following Mrs. Thomas’ death, Mr. Thomas denied Mrs. Garner visitation with the children. Mrs. Garner denied having any personal dispute with Mr. Thomas and was unaware of his reason for terminating her visits with the children. Mr. and Mrs. Garner live alone in their home, in a gated community, where, she testified, there had been no criminal activity or drug use.

IsFollowing the court action in East Baton Rouge Parish, the parties agreed to the grandparents’ visitation, and Mrs. Garner testified that she and her husband availed themselves of all the agreed-to visits, including overnight visits. Mrs. Garner testified that she took the children to lunch, had meals with them at home, took them shopping and to Celebration Station, and described the visits as “good times.” The boys demonstrated no reluctance to stay with her, and did not ask to be returned home. Most of the visitations involved only Mr. and Mrs. Garner, although on occasion other family member visited from out of state. Mrs. Garner testified that on one occasion, when the older child was at her home, trying to reach the sibling with a toy, slipped and received a little scratch near his eye. Mrs. Garner advised Mr. Thomas of the accident, who then spoke with the child. Mr. Thomas did not complain to Mrs. Garner as a result of the child’s injury.

Mrs. Garner told the trial court that she would like to see the boys every month, to spend time with them, do things for them and help to rear them. She testified that she enjoyed being with them. She agreed to supply all necessary transportation and noted that she had a baby seat in her car. She said she would be willing to pick up the boys on Saturday morning at approximately ten o’clock in the morning, and return them on Sunday at six o’clock in the evening. She agreed to facilitate fully all of the boys’ activities, including sports and academic activities, and to take the children to Church each Sunday. She also agreed to contact Mr. Thomas immediately should the children suffer an injury or illness. She testified [¿that she and her husband were in good health and there was no reason why they would not be good and suitable guardians for the children during the visitations.

On cross-examination, Mrs. Garner testified that she visited with the children regularly, approximately every other weekend, or every other month, prior to her daughter’s death. When the children visit, Mr. and Mrs. Garner sleep on a sofa bed and the two boys sleep in the king-sized bed. Mrs. Garner testified that she treated with Neosporin the child’s scratch to which she referred in her direct testimony, but did not seek medical treatment. She also testified to a time when Mr. Thomas brought the baby to their home. The baby seemed sick, so she took him to Our Lady of the Lake hospital, where the baby was treated for a stomach virus. She followed the doctor’s instructions for follow-up care and provided those instructions to Mr. Thomas. Mr. Thomas asked if he needed to come for the baby, and Mrs. Garner told him that would not be necessary. When questioned about the meaning of her testimony that she helped rear the boys, Mrs. Garner testified that she took care of them when Mr. and Mrs. Thomas went on vacation, that she used to go to their home where they would cook and feed the children together. Also, if her daughter had to go to a meeting, sometimes she would leave the children with Mrs. Garner. She denied knowledge of any Social Services complaint registered against Mr. Thomas regarding his care of his children.

Mr. Garner testified, confirming his wife’s testimony concerning their marriage, their daughter’s death and his relationship with his grandchildren. He is a foreman for Grady Crawford Construction, and has been a manager since 2001. [BHe testified that he loves his grandchildren “with every fiber in my body — and they love me and my wife.” He denied having experienced any problems during the children’s visits, and confirmed his wife’s testimony that Mr. Thomas never complained about their care of the boys. He testified further that as long as he knew Mr. Thomas, the two had never had any “cross words.” He knew of no conditions in his home that would be detrimental to the children, and testified that he would be willing to continue to facilitate good family relations if he and his wife were granted visitation.

On cross-examination, Mr. Garner testified that he had two sons who, at times, would facilitate visits and who never encountered any problems with Mr. Thomas. When questioned about the alleged Social Service complaint against Mr. Thomas, Mr. Garner testified that he heard something about it, but that neither his wife nor his niece had anything to do with it. When questioned by the Court, Mr. Garner testified that neither he nor his wife filed a complaint, and he had no personal knowledge of a complaint. Mr. Garner admitted on cross-examination that when he was eighteen, forty years previously, he was “caught up in a charge that [he] didn’t have anything to do with”, and served a thirteen year sentence at Angola on that charge. He has had no legal problems since that time.

Mr. Thomas testified that, during the ten years of his marriage, he had interactions with his wife’s parents. Before his wife’s illness, her parents would visit at Thanksgiving and at best two or three times a year. When his wife became | fiill, her mother visited her for two or three days. Mr. Thomas’ mother was retired and was living in his home, watching the boys and tending to their well-being while his wife was undergoing treatment for cancer. His mother cared for the family from Monday through Friday, and he cared for them on the weekends when he was not working.

According to Mr. Thomas, after his wife’s death, in July of 2005, he brought the children to the Garners. He received a phone call indicating that MT was sick. The Garners took the child for treatment, but since they told him MT was really sick, Mr. Thomas picked up the child the next day.

Mr. Thomas testified that from the time of his wife’s death to the time the Garners obtained court-ordered visitation, there was no problem with visitation. He contended that whenever the Garners called, he would allow them to see the children. According to Mr. Thomas, “[I]t got to the point where she began, you know, to demand to see them. And I was trying to explain to them that, you know, we were all grieving, and, you know, I needed to be with them and they needed to be with their dad.” He also testified that the Garners did not call at the time of their daughter’s death to offer to help with the funeral services.

Mr. Thomas testified that after the Garners obtained court-ordered visitation, he brought the children to the Garners’ son because he “wasn’t allowed or whatever.... But, hey, you know, it was a rough time because, I mean, all this was happening.” The trial judge asked why he wasn’t allowed to deal directly to the Garners, and Mr. Thomas replied that,

|7he did so because there was some type of hostility ... because my youngest son, who was maybe one at the time, was home with my mom. We were coming home, bringing my son home from school. And there were two ladies that had pulled up, and they said they were from Social Services. They wanted to ask, you know, a lot of questions and so forth. And they went ahead through the house, and they did whatever they had to do. And they questioned my son

The trial court interposed a hearsay ruling at that point, concluding Mr. Thomas’ testimony concerning the Social Services visit.

Mr. Thomas then testified to the two visits that followed entry of the visitation order. He and the boys met the Garners at a shopping mall, and the first visit was uneventful. At the second visit, once again at the shopping mall, he confronted Mrs. Garner concerning her having taken some of his wife’s possessions from his home without his knowledge. He admitted on examination by the trial court that Mrs. Garner returned to him a ring that, he testified, held sentimental meaning for him, and that the only other item taken was a doll that had belonged to his wife. He testified that the children and Mr. Garner approached him “in a violent manner” and words were exchanged. He said his children were upset, and he did not want his children to see a confrontation between their grandparents and their father in a public place. He left the shopping mall with his children.

After this confrontation, he arranged to have his brother-in-law facilitate future visits. In response to a question by the trial court, counsel for the Garners stated without contradiction that the Baton Rouge Family Courts’ consent order provided for the following:

Visitation with the minor children on the 4th Saturday of March, 2006, to take place within the New Orleans/Metairie area, from 11:00 a.m. until 5:00 p.m. Darryl Thomas, Sr. is permitted to be present during said visitation, if he so chooses.
| ^Visitation with the minor children on the 4th Saturday of June, 2006, to take place within New Orleans/Metairie area, from 11:00 until 5:00 p.m. Darryl J. Thomas, Sr....
Visitation ... with the minor children on the 4th Weekend of September ..., to take place at Shirley Garner’s home (in Baton Rouge), commencing on Saturday at 11 o’clock a.m. and continuing until the following Sunday at 5:00 p.m. [Mr. Thomas was permitted to be present.] Visitation ... with the minor children ... on the weekend prior to Christmas, to take place at Shirley Garner’s home (in Baton Rouge), commencing Saturday at 11:30 a.m. and continuing until the following Sunday at 5:00 p.m. [Mr. Thomas was permitted to be present, and could spend the night.]

Quarterly visitation in June, September and December of 2006, and in March, June, September and December of 2007 was to continue in the same form.

Mr. Thomas described the children’s normal routine as going to a toy store, going to the park to play basketball and football, going bowling, to child-oriented restaurants to play video games, and watching football games together. He testified that DTJ participates in the gifted program at a demanding charter school, spends hours doing homework, and is preparing to take entrance examinations for two selective public high schools. When questioned by the trial court, Mr. Thomas testified that his mother no longer lives at his home, but sees the boys every Friday.

On cross-examination, Mr. Thomas admitted that, although he had testified that he did not want to hold back any visitation, he has made no contact with Mrs. Garner since December of 2007 to arrange for such visits. When questioned by the trial court as to the reason for this lack of contact, he said only that his children did not ask to visit their grandparents.

RThe parties offered no documentary evidence, and rested on the testimony adduced at the hearing. The trial court assigned its reasons orally at the conclusion of the evidentiary hearing. Of particular significance is the trial court’s finding that Mr. Thomas’ testimony was, in the judge’s language, “disingenuous,” and that Mr. Thomas “appeared] to be going from one reason to the next why [he is] opposed to the request for more frequent visits with the grandparents.” This credibility determination lies at the heart of the court’s ruling. The trial court noted the lack of evidence to support Mr. Thomas’ suggestion that quarterly, rather than monthly, visitation would be in the children’s best interests. Mr. Thomas produced no evidence of drug activity, a Social Services complaint, or lack of proper care of the children by their grandparents. The trial court founds as facts that (1) the minor children maintained regular contact with both sets of grandparents prior to their mother’s death; (2) there were no problems before their mother died; (3) it is not a good thing for the children to have to go through a maternal uncle to visit their grandparents because their father does not want to talk to or call his wife’s parents; (4) little weight would be given to Mr. Garner’s isolated criminal conviction from the 1960s; and (5) Mr. Thomas’ failure to contact the Garners to arrange for court-ordered visitation for an extended period of time requires a judgment providing for specific hours during which they could exercise their visitation.

In most child custody cases and, by analogy, in visitation cases, the trial court decisions are based heavily on factual findings. Palazzola v. Mire, 08-0075 (La.App. 4 Cir. 1/7/09), 10 So.2d 748. It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable 11 ninferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

Grandparental visitation is governed by La.Civ.Code art. 136 B and C, and LSA-R.S. 9:344 A. The Civil Code article provides in pertinent part:

B. Under extraordinary circumstances, a relative, by blood or affinity, ... not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative. 111 (3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.
C. In the event of a conflict between this Article and R.S. 9:344 or 345, the provisions of the statute shall supersede those of this Article.

LSA-R.S. 9:344, entitled “Visitation rights of grandparents and siblings”, provides in pertinent part:

A. If one of the parties to a marriage dies, ..., and there is a minor child or children of such marriage, the parents of the deceased ... party without custody of such minor ... children may have reasonable visitation rights to the ... children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interests of the ... children.

Mr. Thomas contends that the trial court judgment is legally erroneous because it violates his fundamental right to make decisions regarding the care, custody and control of his children. He relies on the United States Supreme Court’s opinion in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), in which the court struck down a Washington statute permitting any person to petition the court for visitation rights at any time and authorizing the court to grant such rights whenever such visitation may serve the best interest of the child. The court affirmed the decision of the Washington Supreme Court finding that the statute unduly infringes on the parental constitutional right to limit visitation of their children with third persons. The Supreme Court found that the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution protected a parental liberty interest in the care, custody and control of their minor children. The high court noted that the Washington statute was “breathtakingly | abroad”, with language that effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review and places the best-interest determination solely in the hands of the judge. Troxel v. Granville, 530 U.S. at 67, 120 S.Ct. at 2060-61. The court noted that there had been no allegation or finding that the surviving parent was unfit, justifying the presumption that fit parents act in the best interests of their children. The court noted that the problem was not that the Washington court intervened, but that it gave no special weight at all to a mother’s determination of her children’s best interests, and placed on this fit custodial parent the burden of disproving that visitation would be in the best interest of the children. The court noted:

Because we rest our decision on the sweeping breadth of [the Washington statute] and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court — whether the Due Process Clause requires all nonpa-rental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice KENNEDY that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best “elaborated with care.” Post, at 2079 (dissenting opinion). Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter, [citing in Footnote, inter alia, La. R.S. 9:344 (West Supp.2000) and La.Civ.Code Art. 136 (West Supp.2000). [Emphasis in original.]
Troxel v. Granville, 530 U.S. at 73, 120 S.Ct. at 2064.

|13The court cited as examples of such hesitation, inter alia, the interpretation of the best-interest standard in Maryland’s grandparent visitation statute to require the court’s consideration of certain factors, citing Fairbanks v. McCarter, 330 Md. 39, 49-50, 622 A.2d 121, 126-27 (1993).

Louisiana’s First Circuit Court of Appeal has upheld the constitutionality of Louisiana’s grandparental visitation statute. See, Barry v. McDaniel, 05-2455 (La.App. 1 Cir. 3/24/06), 934 So.2d 69 See also, Galjour v. Harris, 00-2696 (La.App. 1 Cir. 3/28/01), 795 So.2d 350, where the court considered the Troxel opinion and found it inapplicable to the Louisiana statutory provisions for grandparental visitation. The court held: The Louisiana and United States Supreme Courts denied writs in the Galjour case.

First, unlike the Washington statute determined to have been unconstitutional in Troxel, La.R.S. 9:344 is more narrowly drawn. The Louisiana legislature has determined that in specified, limited situations, i.e., where one parent dies, is interdicted, or incarcerated, the parents of the deceased, interdicted, or incarcerated party may have reasonable visitation rights with the children provided the court finds said visitation to be in the best interest of the child. Unlike the Washington statute, the Louisiana legislature expressly limited the scope of La.R.S. 9:344 to the parents of the deceased or absent parent. Additionally, the statute’s grant of visitation does not contemplate a significant intrusion upon the child’s relationship with the other parent or interference with said parent’s fundamental right to make childrearing decisions.
Galjour v. Harris, 00-2696 at p. 11, 795 So.2d at 358.

In Huber v. Midkiff, 02-0664 (La.2/7/03), 838 So.2d 771, the Louisiana Supreme Court rejected a challenge to the constitutionality of our grandparental | uvisitation statute on procedural grounds. In that case, as in the case at bar, the party contesting the statute’s unconstitutionality did not comply with LSA-R.S. 13:4448’s requirement that prior to adjudicating the constitutionality of a Louisiana statute, the attorney general shall be notified by certified mail of the proceeding at, at his discretion, he shall be allowed to represent the state’s interest. Furthermore, it does not appear that the constitutional issue was raised and addressed in the trial court. While the facial constitutionality, vel non, of the Civil Code article and statute are not before us, Mr. Thomas calls upon us to consider whether his constitutional due process rights have been violated by the trial court’s application of the article and statute by the trial court in this case.

A proper interpretation of LSA-R.S. 9:344 requires the trial court to balance the statute against a fit parent’s constitutionally protected fundamental right of privacy in child rearing and to remember that any rights of nonparents are ancillary to those of a fit parent. Furthermore, the nonparent has the burden of proving visitation or a modification of visitation would be reasonable and in the best interest of the child, as is required by the statute. Barry v. McDaniel, 05-2455 at p. 10, 934 So.2d at 76, citing Babin v. Babin, 02-0396 (La.App. 1 Cir. 7/30/03), 854 So.2d 403, 410-411, writ denied, 03-2460 (La.9/24/03), 854 So.2d 338, cert. denied sub nom. Babin v. Darce, 540 U.S. 1182, 124 S.Ct. 1421, 158 L.Ed.2d 86 (2004).

We are guided by the principle that the trial court is in the best position to ascertain the best interest of the child, given each unique set of circumstances. Barry v. McDaniel, 05-2455 at p. 11, 934 So.2d at 77, citing Babin v. Babin, 854 So.2d at 408. The trial court has vast discretion in child visitation matters, and its determination on the issue is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Id.

|1sWe recognize also the principles that the nonparent seeking a modification must prove that the proposed change in visitation would be reasonable and in the best interest of the child, and that visitation that unduly burdens parental rights would be unconstitutional, regardless of the provisions of statutory law. See, Wood v. Wood, 02-0860, pp. 8-9 (La.App. 1 Cir. 9/27/02), 835 So.2d 568, 573. We recognize that the state’s interest in extended family relationships between children and non-parents must be compelling, narrowly drawn and not unduly intrusive of parental rights, so that the trial court must consider the presumption that Mr. Thomas acted in the best interest of his children, and some material weight must be given to that determination. See, Id., 02-0860, pp. 10-11, 835 So.2d at 575. However, given the trial court’s determination that Mr. Thomas’ testimony was disingenuous, we cannot say, from our review of the entire record, that the trial court violated Mr. Thomas’ due process rights in extending the Garner’s visitation rights.

It is clear from the trial court’s reasons for judgment that the trier of fact took great care in determining the underlying facts. The trial judge participated actively in questioning the witnesses and enunciated the reasons supporting his judgment in detail. We are mindful of the fact that the trial court specifically found Mr. Thomas’ testimony to have been disingenuous. Therefore, even applying a presumption in favor of this father’s position as a fit parent, the weight of evidence offered by the grandparents clearly preponderates. Our review of the record in its entirety convinces us that the trial judge’s credibility determination is reasonable. Mr. Thomas’ testimony concerning the reasons why he refused to deal directly with the Garners and ultimately cut off all contact with them was equivocal at best. The trial court, with the opportunity to observe the witnesses’ demeanors, chose to label I^Mr. Thomas’ testimony as disingenuous, while accepting the Garners’ testimony. This credibility choice is reasonable in light of the record viewed as a whole and will not be disturbed on appeal.

Mr. Thomas contends that the trial court committed legal error in rejecting his request for more limited visitation; in finding that maternal grandparental visitation is in the best interest of the children; and in finding that Mrs. Garner sustained her burden of proof. However, the testimony of the Garners, which was accepted by the trier of fact, clearly indicates that they wish to assist in the care and nurture of their deceased daughter’s children. The types of activities in which the children engaged when visiting the Garners were wholesome and contributed to the children’s development and to the building of an intergenerational bond among the grandparents and the children. There is no evidence that the children were in any way injured, either physically or psychologically, while visiting their grandparents. Indeed, when Mr. Thomas delivered a sick child into their care, they brought the child to the hospital for immediate care, followed the medical advice given by the hospital staff, advised Mr. Thomas immediately of the situation, and cared for the child until Mr. Thomas came for his son sometime the next day. The record is devoid of evidence of any activities engaged in by the Garners and their grandchildren that could be considered detrimental, physically, emotionally, or psychologically, to the children. The Garners testified without contradiction that they would support and cooperate with the children’s extra-curricular participation and would ensure that homework assignments were monitored and completed during the children’s visits.

While Mr. Thomas characterizes the trial court’s findings and rejection of his request for more limited visitation as “legal error”, essentially, they are factual |17findings, which are subject to the manifest error standard of review. As noted previously, the presumption that a fit parent has the right to determine issues such as visitation must be considered to have been overcome in this ease in light of the trial court’s rejection of Mr. Thomas’ testimony as disingenuous, and the record, considered in its entirety.

We conclude from the record, taken as a whole, that the trial court was reasonable in rejecting Mr. Thomas’ request for more limited visitation and in finding that Mrs. Garner sustained her burden of proving that increased visitation was in the best interest of the children. It is clear that, while the trial court did not specifically advert in its orally assigned reasons for judgment to La. Civ.Code art. 136 B, the codal standards underlie the award of monthly visitation to the Garners.

Article 136 B requires consideration of the length and quality of the prior relationship between the child and the relative. All parties testified that the relationship between the Garners and their grandchildren existed since the boys’ birth. As to the quality of the prior relationship between the Garners and the children, the grandparents testified to regular visits pri- or to their daughter’s illness, and to more intense babysitting and nurture of the children during her last illness. The trial court found as a matter of fact that the children maintained regular contact with both sets of grandparents prior to their mother’s death. Mr. Thomas’ testimony significantly reducing the frequency of the grandparents’ contact prior to Mrs. Thomas’ death was rejected by the trial court, and we will not disturb that reasonable credibility determination.

The article requires consideration of whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative. The trial court found that the children’s best interest would be met by ending the 11speriod of discord between the Garners and Mr. Thomas and beginning a period of predictable communication among the members of the family. The trial court also noted that the Garners’ visits would be conditioned on their making sure the children continued to participate in their ongoing extra-curricular and sports activities and included Mr. Thomas in those activities. Furthermore, the court required the children to produce on Fridays at 6 in the evening their homework assignments in order that the Garners could deliver the children back to their father on Sundays at 6 in the evening with the assurance that they had been advised of the children’s assignments and that the children had completed those assignments.

The children did not express a preference as to the frequency of grandparental visitation. The Garners expressed in their testimony the sort of willingness to encourage a close relationship between the children and their father contemplated by the code article. Mr. Garner testified that he treated Mr. Thomas as a son, and never had cross words with him prior to Mrs. Thomas’ death. He referred to Mr. Thomas as a good father, and noted that there had never been any problems among Mr. Thomas and Mr. Garner’s two sons. There is no indication in the grandparents’ testimony of negative animus toward Mr. Thomas, nor of any intention to discourage the children’s relationship with their father.

The final codal consideration, the mental and physical health of the child and the relatives, appears to have been met as well. There is no indication that the children have any physical or mental problems. The evidence of their playing active sports and of the older child’s participation in the gifted program at a highly-regarded local school indicates to the contrary, that the children are in excellent physical and mental health. Mr. Thomas has provided no evidence of mental or physical deficiencies on the part of either Mr. or Mrs. Garner. The trial court was treasonable in refusing to consider Mr. Garner’s felony conviction of over forty years ago, and as to which he had paid his debt to society, to make him unfit for visits with his grandchildren.

The court having considered the record, taken as a whole, including the testimony of the three witnesses, and the trial court’s reasonable credibility evaluations and findings of fact, we affirm the judgment of the trial court.

AFFIRMED.

      . Out of respect for the children’s privacy, they will be referred to herein as DTJ and MT.

      . The Gamers are domiciled in Baton Rouge, Louisiana.

      . Following Mrs. Thomas' death, Mrs. Gamer filed in Family Court in and for the Parish of East Baton Rouge a motion pursuant to La. Civ.Code art. 136 and LSA-R.S. 9:344 A for grandparent visitation. The Family Court proceedings were not introduced into the record in the district court, nor were any judgments of the Family Court made executory in Orleans Parish. As a Court of Record, we are unable to consider evidence not introduced and admitted in the trial court.

      . The material within the quotation marks in this outline of testimony taken at the rule hearing is taken from the hearing transcript.

      . Galjour v. Harris, 01-1238 (La.6/1/01), 793 So.2d 1229; Galjour v. Harris, 02-1273 (La.6/1/01), 793 So.2d 1230; Harris v. Galj-our, 534 U.S. 1020, 122 S.Ct. 545, 151 L.Ed.2d 422 (2001).