author: STEWART, J.

text:
    Landford Anthony PAYNE, Plaintiff-Appellant v. The OUACHITA PARISH TAX ASSESSOR CUSTODIAN OF RECORDS, Defendant-Appellee.
    No. 49,116-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 9, 2014.

      Landford Anthony Payne, In Proper Person.
    Shotwell, Brown & Sperry, Monroe, by C.A. Martin, III, Counsel for Appellee.
    Before STEWART, PITMAN and GARRETT, JJ.
   STEWART, J.

|,Landford Anthony Payne is appealing the district court’s judgment dismissing his civil writ of mandamus. For the reasons that follow, we affirm the trial court’s judgment.

FACTS

On June 18, 2013, Landford Anthony Payne, an indigent prisoner at the Louisiana State Penitentiary in Angola, Louisiana, filed a civil writ of mandamus in the 4th Judicial District Court, requesting documents from the Ouachita Parish tax assessor’s office relating to an abandoned home located in Ouachita Parish at 2208-B Short Washington Street. Payne asserted that he inquired about this home because he believed that it was material to his criminal case.

The tax assessor was served with the civil writ of mandamus on July 11, 2013. In this civil writ, Payne asserted that he had a right to be provided with public documents that he alleged were held by the tax assessor for Ouachita Parish. He further alleged that he mailed a request for these documents on or about April 11, 2013, that he never received the requested documents, and that he received no response to his request.

The civil writ of mandamus sought the following information:

1. What date did William J. Robinson lose possession of this home at 2208-B Short Washington Street?
2. Who gained possession of this home after William J. Robinson lost control of it?
3. What date did the new owner gained [sic] control of it?
4. What date this home become [sic] abandoned, and declared unfit for individuals to live?
5. Who was the last known resident to ever live in this house?
6. What date did they start living in the home, and what date did they stop living in this house?

Payne also sought civil penalties for the tax assessor’s alleged failure to respond in accordance with La. R.S. 44:1, et seq.

A hearing on the civil writ of mandamus took place on July 15, 2013, from which Payne was absent. A judgment on the petition for the writ of mandamus dismissing Payne’s claim with prejudice was rendered that same day.

Payne appeals.

LAW AND DISCUSSION

The defendant sets forth four “claims” in his pro se brief:

1. Payne was denied his right to public records by the defendant, the Oua-chita Parish Tax Assessor.

In his first claim, Payne asserts that the tax assessor denied his right to public records by refusing to answer his filed request pursuant to La. R.S. 44:35(A), which states:

A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.

La. R.S. 44:32(D) states:

D. In any case in which a record is requested and a question is raised by the custodian of the record as to whether it is a public | {¡record, such custodian shall within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the request, in writing for such record, notify in writing the person making such request of his determination and the reasons therefor. Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspecting, copying, or reproduction.

La. R.S. 47:1903(A), which sets forth the powers and authority of tax assessors, states:

A. The tax assessors shall enumerate and list and assess property as directed in this Chapter and be subject to all the obligations prescribed by law. They shall prepare and have ready their lists showing the valuations asserted by them and lay the same before the tax commission within the time and in the manner prescribed by R.S. 47:1987 and 1988.

In accordance with the powers and authority of the position pursuant to La. R.S. 47:1903, the Ouachita Parish tax assessor, Stephanie Smith, testified that the only records kept and maintained by her office are the tax assessor rolls, and when appropriate, homestead exemption cards. She further testified that the tax assessor maintains no records with regard to possession or residence of any property in Ouachita Parish.

Smith, testified that neither she, nor her staff, ever received Payne’s public records request filed on April 12, 2013. Smith further testified that her initial viewing of his public records request was when Payne attached it to the writ of mandamus that she was served with on July 11, 2013. On July 16, 2013, in accordance with La. R.S. 44:32(D), Smith timely filed and served the opposition and exception in response to Payne’s civil writ of mandamus. She attached tax assessment sheets for the property in question, along with a demolition deed. The demolition deed came from the clerk’s Loffice, and the trial court recognized at the hearing for this civil writ that the documents that Payne requested were not information that the tax assessor would have in her custody. After a careful review of the record, we find the tax assessor did not deny Payne’s right to public records, and filed a sufficient answer to his request pursuant to the relevant law. Therefore, this claim assigned as error is meritless.

2. The plaintiff was denied his right to adequate, effective, and meaningful access to the courts to petition the government for redress of grievances by the defendant, the Ouachi-ta Parish Tax Assessor.

In this claim, Payne asserts that the tax assessor violated his right of access to the courts by denying him access to documents or information needed to give him a reasonably adequate opportunity to present claimed violations of constitutional rights to the court. Even though the tax assessor did not have custody or control of the public documents requested, Payne argues that she had a duty to “promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of her knowledge and belief, the reason for the absence of the record from her custody and control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody and control,” pursuant to La. R.S. 44:34.

As stated in the previous claim, in accordance with the relevant law, Smith timely filed and served the opposition and exception in response to Payne’s civil writ of mandamus on July 16, 2013. Even though Smith did not have the documents specifically requested by Payne, she attached the documents that she did have in her possession, namely, tax assessments for |Bthe property for years 2011-2013. She also courteously provided the June 14, 2011, order for demolition. Further, Smith informed Payne in her opposition and exception to Payne’s civil writ of mandamus that records of ownership of the property in question are available in the Ouachita Parish Clerk of Court’s office in the conveyance and mortgage records division. Therefore, this claim assigned as error is without merit.

3. The trial court erred in its ruling by failing to award the plaintiff civil penalties in accordance with La. R.S. 44:35(E)(1).

Payne asserts that the trial court erred in failing to award him civil penalties pursuant to La. R.S. 44:35(E)(1) because the tax assessor arbitrarily and capriciously withheld the requested records from him, and failed to respond in the time prescribed by La. R.S. 44:35(A). He maintains that the tax assessor produced the documents that were in her possession two months after his request was made, and that this time period was outside of the five days provided for in La. R.S. 44:35(A). La. R.S. 44:35(E)(1) states:

If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proved by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.

The terms “arbitrarily and capricious” mean willful and unreasoning action, absent consideration and in disregard of the facts and circumstances |fiof the case. However, when there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed an erroneous conclusion has been reached. Toups v. City of Shreveport, 10-1559 (La.3/15/11), 60 So.3d 1215. An action is arbitrary and capricious if it is without rational basis. Atchison v. Monroe Mun. Fire and Police Civil Service Bd., 46,178 (La.App.2d Cir.5/4/11), 64 So.3d 874.

As stated in the previous claims, Smith’s testimony supports the assertion that the first request the tax assessor’s office received from Payne was the writ of mandamus served on July 11, 2013. Smith timely responded, and attached the documents her office had custody of. Further, she provided the written reasons for not providing the responsive documents pursuant to the relevant law by stating that she did not have custody of them, further stating that records of ownership of the property in question are available in the Ouachita Parish Clerk of Court’s office in the conveyance and mortgage records division. Based on the evidence presented, we find that the tax assessor did not arbitrarily and capriciously withhold the requested records from Payne, and fully complied with the provisions of La. R.S. 44:32. This claim assigned as error is also meritless.

4. The plaintiff was denied his right to a fair and impartial hearing by the Fourth Judicial District Court on July 26, 2018.

In his final claim, Payne asserts that the district court erred in its refusal to allow him to attend the July 26, 2013, hearing.

|7A prisoner has a right of access to state and federal civil courts. La.Const. Art. 1, § 22; Pollard v. White, 738 F.2d 1124 (11th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985); Leeper v. Leeper, 44,777 (La.App.2d Cir.9/23/09), 21 So.3d 1006. However, this right does not necessarily include the right to be physically present at the trial of a civil suit. Pollard, supra; Leeper, supra. Generally, prisoners who bring civil actions have no right to be personally present in court at any stage of the action. Holt v. Pitts, 619 F.2d 558 (6th Cir.1980); Leeper, supra. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, among which is the right of a prisoner to plead and manage his action in court personally. Leeper, supra.

It is not unusual for individuals who are incarcerated to be parties to a civil litigation, either as plaintiff or defendant, and a writ of habeas corpus ad testi-ficandum is the means for such individuals to be present in court. Prisoners who are parties to litigation utilize this mechanism to obtain their presence in court. Leeper, supra; Ardoin v. Bourgeois, 2004-1663 (La.App.3d Cir.11/2/05), 916 So.2d 329; Falcon v. Falcon, 07-491 (La.App.5th Cir.12/27/07), 975 So.2d 40, writ denied, 2008-0295 (La.3/28/08) 978 So.2d 311.

The determination of whether a prisoner-party in a civil action should appear personally in court for the trial of the action rests in the discretion of the trial court. Leeper, supra; Ballard v. Spradley, 557 F.2d 476 (5th Cir.1977).

1 ¡¡Jurisprudence has determined that prisoners do not have a fundamental right to be present in court for a civil matter, but that a writ of habeas corpus ad testifi-candum is the means for prisoners to be present in court. Here, Payne did not file a writ of habeas corpus ad testificandum. Therefore, he did not take the proper steps to ensure his presence at the hearing regarding his writ of mandamus, and cannot now assign his absence at the hearing as error. Therefore, this claim that Payne assigns as error is meritless.

CONCLUSION

For the reasons expressed, we affirm the judgment of the trial court. Costs of this appeal are assessed against the plaintiff, Landford Anthony Payne.

AFFIRMED.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Desmond PIERRE.
    No. 2013-KA-1195.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for De- . fendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

liThe State of Louisiana appeals a trial court judgment granting defendant Desmond Pierre’s motion to quash a bill of information on the ground that his constitutional right to a speedy trial was violated. For the reasons that follow, we reverse and remand the case for further proceedings.

The underlying facts of defendant’s case are not relevant to this appeal. The following chronology of events is taken from the docket master and minute entries in the record.

On December 3, 2004, the State filed a bill of information charging defendant with one count of possession of stolen property valued over one thousand ($1,000) dollars. On December 29, 2004, after defendant failed to appear for arraignment, the trial court issued an alias capias for his arrest. Defendant was arrested on February 6, 2007, and pled not guilty at his arraignment on February 15, 2007.

Following a preliminary hearing and a hearing on a motion to suppress on July 30, 2007, the trial court found no probable cause and denied the motion to suppress. The trial court also set a trial date of August 22, 2007.

| ¡¡Defendant appeared in court on August 22, 2007, only to learn that the trial had been scheduled in error. The trial court then scheduled a motions hearing for October 5, 2007.

Defendant failed to appear in court on October 5, 2007. On that date, the trial court scheduled a pretrial conference for October 9, 2007. Defendant appeared in court for the pretrial conference on October 9, 2007, but the trial court remanded him to the custody of the Orleans Parish Sheriff after he tested positive for drugs. The trial court rescheduled the pretrial conference for October 11, 2007. On October 11, 2007, defendant appeared in court with counsel. At that time, the trial court ordered defendant’s release and notified him in open court that the pretrial conference was rescheduled for October 16, 2007.

After defendant failed to appear in court on October 16, 2007, the trial court issued an alias capias for his arrest and scheduled a bond forfeiture hearing for November 6, 2007. On November 6, 2007, defendant failed to appear at the bond forfeiture hearing and the trial court continued the hearing to November 12, 2007. The court was closed on November 12, 2007, and the hearing was continued to November 26, 2007.

The defendant failed to appear for the bond forfeiture hearing on November 26, 2007, forcing the trial court to continue the matter again to January 8, 2008. When defendant failed to appear in court on January 8, 2008, the trial court granted the bond forfeiture.

|sOn February 6, 2013, defendant appeared in court for a hearing to determine counsel and informed the trial court that he had been incarcerated. The trial court granted defendant a recognizance bond, recalled the alias capias, and continued the hearing to determine counsel to February 22, 2013.

Defendant appeared in court on February 22, 2013 with counsel, and the trial court scheduled a preliminary hearing on motions for March 18, 2013. On March 18, 2013, the trial court, upon a joint motion by the State and the defense, continued the hearing until April 17, 2013. Although defendant appeared in court on April 17, 2013, the trial court granted the State a continuance until April 24, 2013.

On April 24, 2013, defendant appeared with counsel for the preliminary hearing. Following the hearing, the trial court found probable cause and set the case for a trial on May 30, 2013.

On May 24, 2013, defendant filed the motion to quash, asserting a violation of his Sixth Amendment right to a speedy trial. The State filed an opposition to the motion on July 9, 2013. The trial court scheduled a hearing on the motion for July 12, 2013. Defendant appeared in court on July 12, 2013, but the trial court continued the hearing to July 17, 2013, upon a joint motion by the parties.

On July 17, 2013, defendant appeared in court. At the conclusion of the hearing, the trial court granted the motion to quash.

The State appeals arguing that the trial court abused its discretion in granting the motion to quash because defendant’s constitutional right to a speedy trial was not violated.

La.C.Cr.P. art. 578(A) provides that no felony trial, other than for a capital offense, may be commenced after two years from the date of institution of prosecution. Upon expiration of the time period, the court shall, upon motion of the defendant prior to trial, dismiss the indictment. La.C.Cr.P. art. 581. The two-year time limitation should be given effect and mandate dismissal, “unless the State carries its burden of showing valid grounds to support an interruption or sufficient suspension of these time periods.” State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286. “The purpose of the statute’s mandating dismissal, when legislative time limits have elapsed, is to enforce the accused’s right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.” Id.

In addition to the statutory time limits, the Sixth Amendment of the United States Constitution guarantees the right of the defendant to a speedy trial. U.S. Const. Amend. VI. “The constitutional right to a speedy trial is imposed upon the states by the Due Process Clause of the Fourteenth Amendment.” State v. Batiste, 2005-1571, pp. 6-7 (La.10/17/06), 939 So.2d 1245, 1250 (citing Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967)). The underlying purpose of the constitutional right to a speedy trial is to protect a defendant’s interest in preventing pretrial incarceration, limiting possible impairment of his defense, and minimizing his anxiety and concern. Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972).

In Barker, the United States Supreme Court enunciated four factors for courts to consider in determining whether a defendant’s right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the | r,defendant as a result of the delay. Id. at 530, 92 S.Ct. at 2192-93; see also State v. Reaves, 376 So.2d 136 (La.1979) (adopting the Barker factors). “The circumstances of a case will determine the weight to be ascribed to the length of and reason for the delay.” Batiste, 2005-1571, p. 7, 939 So.2d at 1250. “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192). “The first of the four Barker factors, the length of the delay, is the ‘triggering mechanism,’ and if the length of the delay is not presumptively prejudicial,’ the court need not inquire into the other three Barker factors.” State v. Jones, 2012-0653, p. 9 (La.App. 4 Cir. 2/6/13), 107 So.3d 1285, 1291 (citations omitted). “The defendant has the burden of showing a violation of his constitutional right to a speedy trial.” Id.

The granting of a defendant’s motions to quash the bill of information is a discretionary ruling by the trial court, and absent an abuse of its discretion, the ruling should not be disturbed by the appellate court. See State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206.

In this case, the trial court gave her reasons for quashing the bill of information in a lengthy, written judgment. Tracking the Barker factors, the court found the first factor, the length of the delay between the filing and the quashing of the bill of information, had crossed the threshold dividing “ordinary” delay and “presumptively prejudicial” delay due to the State’s inaction. Citing Doggett v. U.S., 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) and State v. Ervin, 2008-1078 (La.App. 4 Cir. 4/1/09), 9 So.3d 303, 307, the court considered the complexity and seriousness of the crime in examining the length of the delay. The court, finding the illegal possession of a stolen automobile to be “an ordinary | (¡street crime” rather than a complex or violent crime, concluded the nine and one-half year delay in bringing defendant to trial was presumptively prejudicial.

The State concedes that a delay of nine and one-half years is presumptively prejudicial. Also, “depending on the nature of the charges, the lower courts have generally found post-accusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Doggett, 505 U.S. at 652, 112 S.Ct. at 2691, n. 1 (citations omitted). Therefore, we find the trial court did not abuse its discretion by finding that the first Barker factor was met.

Next, the trial court considered the second factor (the reasons for the delay) to be the most significant, citing Ervin, supra, State v. Dyer, 2006-0619 (La.7/11/06), 933 So.2d 788, 791, and U.S. v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986). The court noted that “the ultimate responsibility” for bringing the case to trial rested “with the government rather than with the defendant.” Pointing out that defendant was actually in State custody during a thirty-month period he was allegedly “at large” (October 16, 2007 until February 7, 2013), the trial court concluded defendant was not responsible for the delays as a result of missed court appearances during those months. The trial court concluded the State committed “official negligence” by delaying the case while defendant was in State custody and by failing to notify other parishes of the outstanding Orleans Parish arrest warrant.

After reviewing the record, we disagree with the trial court’s conclusion that the State was responsible for the delays in this case. In State v. Romar, 2007-2140 (La.7/1/08), 985 So.2d 722, the Louisiana Supreme Court, resolving a split [7among the circuit courts, considered whether La. C.Cr.P. art. 579(A) imposed an affirmative duty on the State to search for a defendant who had failed to appear for trial after receiving actual notice, even though the State could have found defendant when he renewed his driver’s license with his new address and paid for utilities. The Court stated:

We agree with the First and Third Circuits that La.C.Cr.P. art. 579(A)(3) does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice. The 1984 amendment of La.C.Cr.P. art. 579 made a defendant’s contumacious failure to appear for trial after receiving notice, a direct contempt of court, La.C.Cr.P. art. 21(A)(1), a ground of interruption of the time limits in La.C.Cr.P. art. 578 for bringing him to trial, without regard to whether he thereby intended to avoid prosecution altogether by rendering himself a fugitive from justice, or whether he had otherwise placed himself beyond the control of the state to secure his presence for trial.

Romar, 2007-2140, p. 6, 985 So.2d at 726. The Court reiterated its holding that the State has no affirmative duty to monitor the status of an arrest warrant issued for a defendant in State v. Baptiste, 2008-2468, p. 1 (La.6/23/10), 38 So.3d 247. Also, any continuance by the trial court due to its improper scheduling of a court date will suspend the matter for the State until the matter is properly reset on the trial court’s docket. See State v. Dillon, 2013-0234 (La.App. 4 Cir. 9/18/13), 124 So.3d 1144 and State v. Thomas, 2010-0528 (La.App. 4 Cir. 7/15/10), 54 So.3d 1.

The record reveals that from defendant’s failure to appear at his arraignment on December 29, 2004, until his arrest on February 6, 2007, seven hundred sixty-nine (769) days had elapsed. Also, although defendant had prior notice, he did not appear in court on October 16, 2007, and did not return to court until February 6, 2013, a period of one thousand nine hundred forty (1,940) days or approximately five years and three months. Thus, a total delay of two thousand seven hundred nine (2,709) days is attributed solely to the defendant. As for the period between defendant’s arrest on February 6, 2007, until his failure to appear in court on October 16, 2007, several of the delays are attributed to either the court or the defense. The record discloses the trial court scheduled the August 22, 2007 court date for a pretrial conference in error. The court rescheduled the matter for October 5, 2007, but defendant did not appear on that date. The trial court continued the pretrial conference to October 9, 2007. When defendant appeared in court on October 9, 2007, he tested positive for drugs and was remanded into custody, necessitating another continuance until October 11, 2007. The State was not responsible for these delays. When defendant appeared on October 11, 2007, the court gave him notice of the October 16, 2007 hearing date. After defendant failed to appear for the pretrial conference on October 16, 2007, the trial court issued an alias capias for his arrest. Because the State had no duty to inform the other parishes of the outstanding warrant from Orleans Parish, the defendant, rather than the State, is responsible for any delays that occurred as a result of his failure to appear between October 16, 2007 and February 6, 2013. After February 6, 2013, the State requested a continuance one time and the State and the defense | Requested a joint continuance twice. Given that there were substantial periods of time between December 29, 2004 and February 6, 2013, when defendant was not in state custody and should have appeared in court, we find the second Barker factor has not been satisfied.

Turning to the third factor, whether defendant asserted his right to a speedy trial, the trial court found that defendant did not assert the right to a speedy trial before May 24, 2013, because he effectively was denied an opportunity to do so during his thirty-month incarceration. The court also found that defendant was not on notice that the charge was still pending during that time.

The record indicates defendant never asserted his right to a speedy trial prior to filing the motion to quash on May 24, 2013. Although incarcerated for part of the time, defendant was fully aware of the pending charge and had the opportunity to file a motion with the court to exercise his right to a speedy trial. The trial court erred in concluding otherwise. The third Barker factor has not been met.

Finally, as to the fourth Barker factor, whether the delay resulted in prejudice to defendant, the trial court found that the State failed to demonstrate “reasonable diligence” in bringing defendant to trial and the delay resulted in prejudice to the defendant, citing Ervin, 2008-1078, p. 7, 9 So.3d 803, 309.

We find the trial court’s reliance on Ervin is misplaced. In Ervin, defendant Ervin’s case was continued twelve times because Ervin, who was incarcerated, was not transported to court. The Court found the State responsible for the delays because the State had previous knowledge that defendant was in the custody of Orleans Parish. Id. In this case, nothing in the record indicates that State was aware the defendant was in the custody of the Department of Corrections or a local sheriff prior to his reappearance in court. Also, unlike here, Ervin did not involve | ina defendant who failed to appear for a court hearing after receiving actual notice of the hearing. Defendant in this case has failed to allege any prejudice, such as the loss of witnesses, due to the delay. Although the trial court noted that the photographs of the stolen vehicle taken by the police were destroyed in Hurricane Katrina, it acknowledged the State was not responsible for their loss. Since defendant has failed to specify how he was prejudiced as a result of the delay, the fourth Barker factor does not support the trial court’s conclusion that his right to a speedy trial was violated.

In summary, the record does not support the trial court’s quashing of the bill of information, as defendant has not satisfied his burden of showing that the State violated his constitutional right to a speedy trial. Thus, we find the trial court abused its discretion in granting defendant’s motion to quash the bill of information against him.

Accordingly, for the above reasons, we reverse the trial court’s judgment that granted the motion to quash and remand the matter for further proceedings.

REVERSED AND REMANDED.

      . The record indicates the State introduced into evidence the commercial surety bond and the subpoenas that were issued to the defendant and the surety.

      . The trial court found that defendant was incarcerated in the St. Charles Parish Correctional Center on the following dates: January 9, 2010 until January 10, 2010 (1 day); January 29, 2010 until January 31, 2010 (2 days); March 22, 2010 until November 17, 2010 (7 months, 26 days); January 7, 2011 until January 9, 2011 (2 days); January 14, 2011 until January 15, 2011 (1 day); March 20, 2011 until January 25, 2013 (22 months, 5 days).

      . La.C.Cr.P. art. 579 provides, in part:
      A. The period of limitation established by Article 578 shall be interrupted if:
      (1)The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
      (3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.


author: JAMES F. McKAY III, Chief Judge.

text:
    Richard RAGAS and Rhonda Ragas v. Plaquemines Parish Sheriff, Jiff HINGLE, Individually and in his Capacity as Sheriff of Plaquemines Parish and ABC Insurer.
    No. 2013-CA-1577.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2014.

      Joel P. Loeffelholz, New Orleans, Louisiana, for Plaintiff/Appellant.
    George Pivach II, Timothy Thriffiley, Pivach Pivach Hufft Thriffiley & Dunbar, L.L.C., Belle Chasse, Louisiana, for Defendant/Appellee, Adam Barrois and Jennifer Daigle Tassin.
    Leo J. Palazzo, Rennie S. Buras II, Plaquemines Parish Government Legal Department, Belle Chasse, Louisiana, for Defendant/Appellee, Plaquemines Parish Government.
    Court composed of Chief Judge JAMES F. McKAY III, Judge PAUL A. BONIN, Judge ROSEMARY LEDET.
   JAMES F. McKAY III, Chief Judge.

Lin this tort case, the plaintiffs, Richard and Rhonda Ragas, appeal the trial court’s granting of involuntary dismissals in favor of the defendants, the Plaquemines Parish Government, Jennifer Daigle Tassin, and Adam Barrios. We affirm.

FACTS AND PROCEDURAL HISTORY

On June 29, 2006, Leon Ragas severely cut his arm while using an electric grinder to clean a large crab boiling pot that he found on the side of the road. This accident took place in Buras, Louisiana approximately ten months after Hurricane Katrina had decimated the lower parts of Plaquemines Parish, including Buras. Because of this widespread devastation, ambulances would go no further south than Port Sulphur on service calls. Therefore, Mr. Ragas’s nephew, Richard Ragas, and his nephew’s wife, Rhonda Ragas, loaded the elder Mr. Ragas into the backseat of their pickup truck in order to transport him north on Louisiana Highway 28. Richard and Rhonda Ragas called 911 from the truck and were told that an ambulance would meet them at the government complex in Port Sulphur, ^approximately thirty miles to the north. They called 911 a second time to confirm that law enforcement officials were aware of their situation.

At approximately 11:48 a.m., while they were on patrol in Nairn, Louisiana, Deputies Jennifer Daigle Tassin and Adam Barrios observed the Ragas pickup truck trav-elling northbound on Highway 28 at a very high rate of speed. Thereupon, the deputies pursued the pickup truck in order to effect a traffic stop. Deputy Barrios contacted headquarters to determine if any emergencies had been reported in the lower end of Plaquemines Parish, and headquarters told him that there had been no reports of any emergency. Both deputies pursued the pickup truck with their lights and sirens activated, but Richard Ragas did not stop. Eventually, Deputy Tassin was able to get onto the side of the truck, and verbally ordered Mr. Ragas to pull over and stop the vehicle. Mr. Ragas refused and Deputy Tassin then pulled in front of the truck and slowed down in an attempt to get the truck to stop. The truck then pulled into the southbound lanes of Highway 23 and ran several vehicles off the highway in order to get around Deputy Tassin. The truck finally pulled into the Plaquemines Parish Government building parking lot in Port Sulphur where it proceeded towards a waiting ambulance and stopped beside it.

Once arriving in the parking lot, Richard Ragas assisted the EMT’s, Latonia Elias and Paxton Morgan, with getting his uncle out of the vehicle. Thereafter, | ¡¿Richard Ragas began cursing, yelling and putting his fingers in the face of Deputy Barrios. Deputy Barrios advised Mr. Ragas that he was going to be arrested for his actions on the road and in the parking lot. When Deputy Barrios attempted to place Mr. Ragas under arrest, Mr. Ragas resisted. Rhonda Ragas also interfered with Deputy Barrios in his attempt to arrest Mr. Ragas. Deputy Tassin ordered Mrs. Ragas to move away from Deputy Barrios, but Mrs. Ragas refused to comply with that order. In fact, Mrs. Ragas struck Deputy Tassin in the back of the head with a closed fist. After gaining control of the situation, the deputies placed both Mr. and Mrs. Ragas under arrest. Mr. Ragas was issued a summons and released at the scene. Mrs. Ragas was then transported to the Belle Chase lock-up where she was issued a summons because there was a lack of jail space. Later that day, both Mr. and Mrs. Ragas went to the hospital to pick up Leon Ragas.

On June 28, 2007, Richard and Rhonda Ragas filed a petition for damages sounding in tort in the Twenty-Fifth Judicial District Court, naming Plaquemines Parish Sheriff Jiff Hingle and ABC Insurer as defendants. The plaintiffs later amended their lawsuit to name additional defendants, including the Plaquemines Parish Sheriffs Office, the Plaquemines Parish Government, Deputies Tassin and Barrios, and a number of other Sheriffs Office personnel. The amended petition also alleged causes of action under 42 U.S.C.A. Sections 1983, 1985(3), and 1986 for constitutional violations, deprivation of liberty, excessive force, abuse of process, intentional infliction of emotional distress, false arrest, false | imprisonment, malicious prosecution, and defamation. The matter proceeded to trial on June 4 and 5, 2013. During the trial, the plaintiffs voluntarily dismissed with prejudice all of the defendants with the exception of the Plaque-mines Parish Government and Deputies Tassin and Barrios. Following the close of the plaintiffs’ case, the remaining defendants moved for involuntary dismissal pursuant to La. C.C.P. art. 1673. The trial court granted the defendants’ motions for involuntary dismissal, dismissing all claims against them with prejudice with all costs taxed to the plaintiffs. It is from this judgment that Mr. and Mrs. Ragas now appeal.

DISCUSSION

On appeal, the plaintiffs raise the following lone assignment of error: “[t]he Judge was clearly biased, had obviously pre-judged the matter, did not conduct a fair trial and was clearly wrong in granting the motions for involuntary dismissal.”

In an action by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. La. C.C.P. art. 1672(B).

The trial court has much discretion in deciding a motion for involuntary dismissal. Guidry v. City of Rayne Police Dep’t, 2009-664, p. 2 (La.App. 3 Cir. 12/9/09), 26 So.3d 900, 902. A motion for involuntary dismissal requires the trial court to evaluate all of the evidence presented by the claimant and render a decision based upon the preponderance of the evidence. Lowe v. Skyjacker Suspensions, 45,058, p. 5 (La.App. 2 Cir. 3/3/10), 32 So.3d 340, 343. The standard for granting an involuntary dismissal in a defendant’s favor in a bench trial is lower than the standard for granting a directed verdict in a jury trial, where the trial court is required to consider the evidence in the light most favorable to the plaintiff. Falgout v. Louis-Jeune, 2000-2452, 2000-2453, p. 9 (La.App. 4 Cir. 10/3/01), 799 So.2d 610, 616. In a motion for involuntary dismissal, the trial court is required to evaluate the evidence without applying any special inferences in favor of either party. Williams v. Orleans Parish School Bd., 2010-1441, p. 2 (La.App. 4 Cir. 2/9/11), 61 So.3d 48, 50. The trial court should grant the motion for involuntary dismissal and dismiss the matter if the evidence is found to be insufficient to establish the plaintiffs case by a preponderance of the evidence. Vintage Wings & Things, LLC v. Toce & Daiy, LLC, 2004-706, p. 8 (La.App. 3 Cir. 11/10/04), 886 So.2d 652, 657. The appellate court will not reverse an involuntary dismissal made at the close of plaintiffs evidence in the absence of manifest error. Brooks v. Minnieweather, 46,900, p. 7 (La.App. 2 Cir. 1/25/12), 86 So.3d 684, 689. There is no manifest error if there is a reasonable factual basis for the finding of the trial court. Id.

In the instant case, the trial court granted the defendants’ motion for involuntary dismissal for two reasons. The first, pertaining to the Plaquemines | fiParish Government, is that the plaintiffs failed to name the proper party defendant. The second, pertaining to all defendants, is that the trial court did not find the plaintiffs to be credible witnesses.

The plaintiffs should have named the Plaquemines Parish Communications District, and not the Plaquemines Parish Government, as a proper defendant in this case. La. R.S. 33:9109(A)(1) states that “[t]he governing authority of any parish may by ordinance create communications districts composed of any or all of the territory lying wholly within the parish.” La. R.S. 33:9101(A)(3) provides that “[a]ny district created in accordance with the provisions of this Section shall be a political and legal subdivision of the state, with the power to sue and be sued in its corporate name and to incur debt and issue bonds.” Through Plaquemines Parish Ordinance 88-121, the Plaquemines Parish Government created the Plaquemines Parish Communications District in accordance with La. R.S. 33:9109(A)(1). The purpose for creating such a district is to limit liability with immunity from civil damages except for damages resulting from “willful or wanton misconduct or gross negligence.” See La. R.S. 33:9108(A).

The trial court heard testimony from the plaintiffs as well as Leon Ragas, Latonia Elias, and Paxton Morgan. The plaintiffs’ testimony was not consistent with that of Leon Ragas and was in direct conflict with the testimony given by the EMT’s, Ms. Elias, and Mr. Morgan. Based upon these discrepancies, the trial court found that Richard and Rhonda Ragas were not credible witnesses and it discounted their testimonies.

17In matters of credibility, an appellate court gives great deference to the findings of the trier of fact. Franz v. First Bank Systems, Inc., 2003-0448, 2003-1470, p. 9 (La.App. 4 Cir. 2/11/04), 868 So.2d 155, 162. It is the task of the trial judge to determine the credibility of the witnesses and this determination will not be disturbed absent manifest error. Kraus v. Wheat, 2003-0393, p. 7 (La.App. 4 Cir. 9/3/03), 856 So.2d 45, 50. Where 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. Lindsey v. USAA Property & Cas. Ins. Co., 2002-0797, p. 6 (La.App. 4 Cir. 10/9/02), 830 So.2d 335, 338-39. Accordingly, we find no error in the trial court’s finding that Richard and Rhonda Ragas were not credible witnesses. Due to their lack of credibility, the plaintiffs would not be able to establish their case by a preponderance of the evidence.

CONCLUSION

For the above and foregoing reasons, the trial court’s judgment granting the defendants’ motions for involuntary dismissal of the plaintiffs’ action is affirmed.

AFFIRMED.

      . We find it troubling that although Mr. and Mrs. Ragas had called 911 twice, the deputies were informed by headquarters that no emergencies had been reported.

      . The EMT’s then transported Leon Ragas to the hospital.

      . Richard and Rhonda Ragas were each charged with resisting arrest and battery on a police officer.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Marilyn Braud SHARP v. LOUISIANA STADIUM EXPO DISTRICT and Fara Insurance.
    No. 2013-CA-1697.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2014.
    John Paul Massicot, Frank A. Silvestri, M. Damien Savoie, Silvestri & Massicot, New Orleans, LA, for Plaintiff/Appellant.
    James D. “Buddy” Caldwell, Attorney General, M. Chadwick Pellerin, Assistant Attorney General, LA Department of Justice, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

liThe plaintiff, Marilyn Braud Sharp, appeals the trial court’s ruling granting the defendant’s, Louisiana Stadium Expo District (LSED), exception of prescription. For the reasons that follow, we reverse the trial court’s judgment granting the exception of prescription and remand to the trial court for further proceedings.

FACTS AND PROCEEDINGS BELOW

Ms. Sharp was allegedly injured on December 4, 2011 when she slipped and fell in the parking lot of the Louisiana Super-dome. One year later, on December 4, 2012, Ms. Sharp filed a Petition for Damages against the LSED. LSED answered the petition and filed an exception of prescription. In its exception, LSED argued that Ms. Sharp’s claim was prescribed because 2012 was a leap year. LSED contends that one year consists of 365 days, and that filing on December 4, 2012 was, therefore, a day late. After briefing and oral argument, the trial court granted the exception of prescription and entered judgment in favor of LSED, dismissing Mr. Sharp’s claim. This appeal follows.

|2DISCUSSION

In Ms. Sharp’s sole assignment of error, she asserts that the trial court erred in finding that her claim had prescribed. We agree. The facts alleged in the petition are not in dispute. The question presented on appeal is whether the trial court properly interpreted the law of prescription. As such, we conduct a de novo review. Louisiana Municipal Association v. State, 2004-0227, p. 35 (La.1/19/05), 893 So.2d 809, 836, citing Cleco Evangeline v. Louisiana Tax Com’n, 2001-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353.

Ms. Sharp’s petition asserts that she was injured due to the negligence of LSED. Thus, her petition alleges an offense under Louisiana’s law of general negligence, which is set forth in Louisiana Civil Code article 2315. Ms. Sharp’s action is, therefore, a delictual action. Pursuant to Louisiana Civil Code article 3492, the prescriptive period for delictual actions is one year, which begins to run on the day the injury is sustained. The Civil Code further provides: “In computing a prescriptive period, the day that marks the commencement of prescription is not counted. Prescription accrues upon the expiration of the last day of the prescriptive period....” La C.C. art. 3454. When the prescriptive period consists of one or more years, “prescription accrues upon the expiration of the day of the last year |sthat corresponds with the date of the commencement of prescription.” La C.C. art. 3456.

The Civil Code does not define the term “year” as being 365 days, nor do the articles make a distinction for a leap year. While there is no jurisprudence directly on point, this court did consider the effect of a leap year on the applicable prescriptive period in Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir.1978). In Mangin, the alleged accident took place on February 29, 1976. This court held that the prescriptive period ended on February 28 of the following year because that was the last day of the calendar year “that corresponds with the date of the commencement of prescription” La C.C. art. 3456. This court reasoned:

A claim prescribed by a period of months and arising on the 30th or 31st day of a month would expire on the last day of the critical month even if that month had only 28, 29 or 30 days.... This principle is applicable here by close analogy: that a one-year claim arises February 29, 1976 does not entitle the claimant to sue until “February 29, 1977” nor until one day after February 28, 1977, that is, March 1. The period is one year of the calendar, C.C. art. 3469, and between February 29, 1976 and March 1, 1977 a full calendar year of 12 full months has passed (although that calendar year’s February had only 28 days). March 1, 1977 is the first day of the second calendar year following February 28, 1976, just as March 1, 1976 was the first day of the first calendar year following February 29, 1976. Plaintiffs could have filed suit on March 1, 1976 and they are not entitled to another March 1 within the one year allowed for filing suit.

Mangin, 360 So.2d at 578.

In the instant case, prescription commenced on December 4, 2011, the date of Ms. Sharp’s alleged injury. December 4 is not counted. The prescriptive period of one year accrues “upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription,” December 4, |,,2012. As December 4, 2011 is not counted, Mr. Sharp’s prescriptive period did not expire until the end of the day on December 4, 2012. LSED’s argument that the claim prescribed is without merit. We find that the trial court erred by’ granting the exception of prescription.

CONCLUSION

Accordingly, for the reasons stated, the trial court’s judgment granting LSED’s exception of prescription is reversed, and the matter is remanded to the trial court for further proceedings consistent with this disposition.

REVERSED AND REMANDED.

      . Revision Comment (b) to La. C.C. art 3492 states: "Article 3536(1) of the Louisiana Civil Code of 1870 speaks of liability caused by libelous statements, animals, and offenses and quasi-offenses. These are merely examples of delictual actions. This Article expresses the principle embodied in Article 3536(1) of the 1870 Code.” La. Civ.Code Ann. art. 3492.

      . Analogously, as we noted in Mangin, supra, the law of prescription (La. C.C. art. 3455) refers to months, without considering the number of days in each month.


author: WHIPPLE, C.J.

text:
    Paul A. KADAIR, Sr. and Melanie R. Kadair v. Thomas HAMPTON, Janelle Bramlett Hampton and Magnolia Ridge Properties LLC and Raymond W. Banker, Jr.
    No. 2013 CA 1171.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 2014.

      John B. Brumfield, Jr. and Randall G. Wells, Baton Rouge, LA, for Plaintiffs/Ap-pellees, Paul A. Kadair, Sr. and Melanie R. Kadair.
    Charles E. Griffin, II, St. Francisville, LA, for Defendants/Appellants, Magnolia Ridge Properties, LLC and Raymond W. Banker, Jr.
    Before WHIPPLE, C.J., WELCH, and GRAIN, JJ.
   WHIPPLE, C.J.

Lin this property dispute, defendants, Magnolia Ridge Properties, LLC and Raymond W. Banker, Jr., appeal from a judgment of the trial court rendered in favor of plaintiffs, Paul A. Kadair, Sr. and Melanie R. Kadair. For the reasons that follow, we affirm in part and vacate in part.

FACTS AND PROCEDURAL HISTORY

Paul Kadair purchased Tract H of Creekround subdivision in West Feliciana Parish on April 25,1974. Kadair then met Herman Endlekofer, who owned Tracts W and X, at a Creekround subdivision meeting. Endlekofer, who lived in Baton Rouge, asked Kadair to maintain his fence on the north line of his property and a road that went through his property, since Kadair lived nearby in Creekround. Ka-dair agreed, and in exchange, Endlekofer allowed him to use the property as he wished. By act of cash sale dated March 9, 1992, Paul and Melanie Kadair eventually purchased Tracts W and X from Endle-kofer.

By act of cash sale dated December 3, 2009, Magnolia Ridge Properties, LLC, (“Magnolia Ridge”) represented by Raymond W. Banker, Jr., purchased two parcels of land from Coastal Tie & Timber Company, Inc., represented by Steven K. Jones. These parcels were adjacent to Tracts W and X (owned by the Kadairs) with the first parcel described as Tract 2-C, containing 223.59 acres of land, and the second parcel described as Tract 2-B-2, containing 111.795 acres of land.

Thomas J. Hampton, an original developer of Creekround, and his wife, Janelle Bramlett Hampton, owned a “Reserved” 1.661 acre parcel of land bounded on the north and west by Tract 2-B-2 (owned by Magnolia Ridge) and on the south and east by Tract W (owned by the Kadairs) (hereinafter the “Reserved Tract”).

|3On January 11, 2011, the Kadairs filed a “Boundary Action Petition” naming the contiguous property owners, Thomas and Janelle Hampton, Magnolia Ridge, and Banker, as defendants therein. Through their original and supplemental petitions, the Kadairs contended that they possessed Tracts W and X, “together with such additional property as has been possessed by petitioners and their ancestors in title for more than 30 years.” (Emphasis added.) The Kadairs alleged that they had possessed the claimed additional property for themselves, and prior to that, precariously for Endlekofer, for “many decades.” The Kadairs described the claimed “additional property” as property-somewhat northerly of the Kadairs’ Tract W, but enclosed by and south of a barbed wire fence that traversed across the Reserved Tract, owned by the Hamptons, and on into Tract 2-B-2, owned by Magnolia Properties. The property south of the barbed wire fence line in the Reserved Tract was described as being an “irregular arc” believed to measure 399.85 feet, with the radius of the arc to be approximately 250 feet, and the portion of property south of the fence line in Tract 2-B-2 is a 1.62 acre area referred to herein as the “disputed property.” The Kadairs specifically alleged that they, together with their ancestors in title had possessed the disputed property south of the fence line “as owners together up to and across the section lines, all for over 30 years continuously, uninterrupted, and peaceable [sic] except for a confrontation with Walter Glenn Soileau, believed to be a trespasser, who ultimately withdrew from the contentious acts and threats of future acts until recently [when] [Banker and Magnolia Ridge] and Thomas and Janelle Hampton disturbed [the Ka-dairs’] possession.” The Kadairs alleged that 14no one besides themselves had possessed the disputed property south of the fence line, except with the express permission of Paul Kadair, and then only for limited purposes.

The Kadairs specifically contended that within the perimeter of the disputed property, they exercised acts of possession, including cutting their own fire wood as well as selling timber up to the fenced boundaries, moving freely over the entire tract, walking, building roads, maintaining drainage, planting trees and plants, taking guests, engaging in leisurely activities, taking photographs, hunting, engaging in recreation, relaxing, camping, riding horses, installing and maintaining power lines, riding dune buggies, and riding four wheelers.

The Kadairs further alleged that Tract W contained a purported servitude, but had no designated dominant estate and was therefore deficient for lack of form and substance. Thus, the Kadairs alleged the purported servitude should be adjudged to have no legal effect and declared invalid as lacking the requisite elements of a servitude. With reference to the servitude, the Kadairs contended that the fence along the northern boundary of the Ka-dairs’ Tract W had been placed so that neither Magnolia Ridge, nor its ancestors in title, had crossed Tract W ever since the barbed wire fence was erected, although they had traveled across the Reserved Tract with the Kadairs’ express permission. Accordingly, the Kadairs prayed that: (1) the deficient servitude be declared invalid and adjudged to have no legal effect; and (2) that the boundaries between the properties be fixed in accordance with the law and evidence.

The developers of Creekround subdivision retained Brown and Butler to prepare the initial survey plat in 1972 when they subdivided the property. The servitude and two of the parcels of immovable property involved in this proceeding are depicted in the following excerpt from the final plat for Creekround subdivision dated May 12, 1972, and revised on January 18, 1973:

Defendants filed an answer to the Ka-dairs’ petition to fix or set the boundary: (1) denying that the Kadairs established requisite title to the defendants’ property by acquisitive prescription of thirty years, as required by law; and (2) asking the trial court to recognize as the legal boundary between the two properties the titled boundaries of the parties’ respective tracts according to the maps of survey by which the various tracts were acquired.

Defendants subsequently filed a motion for summary judgment, contending that the Kadairs could not show that they have possessed the disputed property for thirty years as required under LSA-C.C. art. 794, and that the court accordingly was obligated to look to the titles of the parties to establish their common boundaries. Thus, the defendants sought summary judgment fixing the boundary between these parties at the section line between Section 88 and Section 70, T1S, | ñR4W as the record title boundary between these two parties. The trial court denied the defendants’ motion for summary judgment.

The Kadairs thereafter filed a motion in limine, seeking an order prohibiting the defendants from introducing any witnesses, evidence, or exhibits concerning any acts of possession on behalf of any of the defendants. The Kadairs contended that in their answer, the defendants asserted title unto themselves “in this pos-sessory action,” and had effectively converted the present action to a petitory action, thus judicially confessing the possession of the Kadairs herein. The trial court denied the Kadairs’ motion in limine, stating “this is a possessory action” that has “not been converted to a petitory action by either party.”

Trial of this matter was held on January 8 and 9, 2013, after which the trial court took the matter under advisement. On February 15, 2013, the trial court issued written reasons for judgment. After hearing the witnesses and considering the evidence, the trial court noted, “The ownership claim of Paul and Melanie Kadair is simple. They assert that they have acquired ownership of the property in question by having possessed the property for more than thirty years.” The 17court then specifically concluded that the “evidence shows that the fence in question has been in existence as a fence continuously for more than thirty years prior to the institution of this litigation” and that the “evidence shows that [the Kadairs], acting for Herman Endlekofer, their predecessor in title, and for themselves, have possessed the disputed area continuously, peaceably, and without interruption for more than thirty years prior to the institution of this litigation.” The trial court then fixed the boundary line as requested by the Kadairs, determining that the “north boundary of Tract W will be fixed according to the fence line as depicted on the plat of survey introduced into evidence as Plaintiffs Exhibit 15.” The trial court further determined and declared that the thirty-foot servitude of passage and utilities across the northwest corner of Tract W shown on the developers’ plat was null, and assessed expert witness fees and costs.

A judgment in favor of the Kadairs was signed by the trial court on March 18, 2013. The judgment, which provided that the matter was tried before the court “pursuant to the Boundary Action Petition filed [by the Kadairs]”: (1) decreed that the Kadairs had possessed the disputed property for over thirty years; (2) ordered that the northern boundary’ of the disputed property be reestablished and fixed at the fence line, as depicted on the December 30, 2012 survey plat prepared by Tobias P. Ford, Jr., and filed of record in the Office of the Clerk and Recorder of West Felicia-na Parish at Book 195, Page 684, File No. 109298; and (3) declared the thirty-foot servitude of passage and utilities established in the 1972 Brown and Butler survey plat null. The judgment further awarded expert | ¡^witness fees and costs and was designated as a partial final judgment pursuant to LSA-C.C.P. art. 1915(B) for purposes of an immediate appeal.

After the denial of their motion for new trial, defendants perfected the instant sus-pensive appeal. On appeal, the remaining defendants (Magnolia Ridge and Banker) contend that the trial court erred in: (1) failing to understand the distinction between a possessory action and a petitory action “in trying this case and in its rulings”; (2) failing to apply the appropriate legal requisites to maintain a possessory action in favor of the appellants; and (3) declaring a dedicated predial servitude void without proof of revocation or abandonment.

The Kadairs answered the appeal, seeking an award of damages and attorneys’ fees against defendants pursuant to LSA-C.C.P. art. 2138, for their actions in filing a frivolous appeal.

| aDISCUSSION

Boundary Action and Acquisitive Prescription

In a boundary action, the court shall render a judgment fixing the boundary between contiguous lands in accordance with the ownership or possession of the parties. LSA-C.C.P. art. 3693. The boundary shall be fixed according to ownership of the parties; however, if neither party proves ownership, the boundary shall be fixed according to the limits established by possession. LSA-C.C. art. 792. 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 those lines. LSA-C.C. art. 794. Thus, ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. Secret Cove, L.L.C. v. Thomas, 2002-2498 (La.App. 1st Cir.11/7/03), 862 So.2d 1010, 1015, writ denied, 2004-0447 (La.4/2/04), 869 So.2d 889.

Under the codal provisions on acquisitive prescription, a possessor lacking good faith and/Or just title may acquire prescriptive title to land by corporeally possessing a tract for thirty years with the intent to possess as owner. Secret Cove, L.L.C. v. Thomas, 862 So.2d at 1015. Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. LSA-C.C. art. 3425. Thirty years of corporeal possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public, and unequivocal, and confers title only to such immovable property as is actually corporeally possessed. Secret Cove, L.L.C. v. Thomas, 862 So.2d at 1015; see also LSA-C.C. arts. 3424, 3425, 3426, 3476, 3486, and 3487.

| mFor purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed. LSA-C.C. art. 3487. Actual possession must be either inch-by-inch possession or possession within enclosures. Secret Cove, L.L.C. v. Thomas, 862 So.2d at 1015. According to well-settled Louisiana jurisprudence, an enclosure is any natural or artificial boundary. Secret Cove, L.L.C. v. Thomas, 862 So.2d at 1015; LSA-C.C. art. 3426, comment (d), Revision Comments-1982, citing A.N. Yiannopoulos, Property §§ 212-214, in 2 Louisiana Civil Law Treatise (2d ed.1980). The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Secret Cove. L.L.C. v. Thomas, 862 So.2d at 1015.

Under LSA-C.C. art. 794, a title holder may acquire more land than his title calls for by possessing property beyond his title for thirty years without interruption and within visible bounds. Such a title holder may attain the thirty-year possessory period—which is necessary to perfect prescriptive title in the absence of good faith and just title—by “tacking” on to the possession of his ancestor in title. LSA-C.C. arts. 794 and 3442; Secret Cove, L.L.C. v. Thomas, 862 So.2d at 1015-1016. Under LSA-C.C. art. 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 this article, the juridical link, or written instrument that passes to the possessor from his ancestor in title need not encompass or include the particular property to which the possessor claims prescriptive title. Secret Cove, L.L.C. v. Thomas, 862 So.2d at 1016.

Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong. Secret Cove, L.L.C. v. Thomas, 862 So.2d at 1016. Additionally, boundary location is a question of fact, and the determination of its location by the trial court should not be reversed absent manifest error. Secret Cove, L.L.C. v. Thomas, 862 So.2d at 1016. Where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact’s findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d at 844. It is only when documents or objective evidence so contradict the 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, that the court of appeal may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d at 844-845. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO. 549 So.2d at 845.

Challenges to the Judgment Resolving the Boundary Dispute and Fixing the Kadairs’ Boundary (Assignments of Error Numbers One and Two)

In their first two assignments of error, the remaining defendants contend that the trial court erred in “failing to understand the distinction between a possessory action and a petitory action in trying this case and in its ruling,” and | ^secondly, in “failing to apply the appropriate legal requisites to maintain a possessory action in favor of the [Kadairs].”

We note at the outset, that in the instant matter, the Kadairs filed a “Boundary Action Petition,” requesting that the boundary line between their property and the defendants’ property be fixed. In the Ka-dairs’ original and supplemental petitions, they alleged their entitlement to and clearly sought a judgment fixing the boundaries between the parties in accordance with law based on their continuous, uninterrupted and peaceable possession of the disputed property for over thirty years. See LSA-C.C. art. 794. The record contains no evidence that the Kadairs filed a petition asserting any cause of action other than a boundary action; nor does the record contain any pleading otherwise converting the boundary action to another action, including a possessory or petitory action. At the conclusion of Paul Kadair’s trial testimony, he asked the court to honor his thirty years of possession to the fence line and to set the fence line as the new boundary line. After considering and weighing the testimony and evidence, the trial court did precisely that, rendering judgment fixing and reestablishing the boundary line of their property in accordance with its finding that the Kadairs possessed for themselves, and their predecessor in title, up to the fence or boundary line for over thirty years. Because the Kadairs sought to prove their boundary action by acquisitive prescription rather than by title, they were required to prove possession of thirty years without interruption. See LSA-C.C. art. 794.

Thus, although at certain pre-trial stages in the proceedings below the trial court maintained that this was a “possesso-ry action,” (even though filed as | ,3a boundary action), to the extent that the Kadairs were similarly required to prove ownership of the disputed tract by acquisitive prescription of thirty years, pursuant to LSA-C.C. art. 794, in order to prevail, the trial court was correct. To the extent, however, that the defendants contend, based upon comments made by the trial court during the preliminary hearings, that the trial court erred by considering this matter to be a possessory action, and therefore further erred in combining a possessory action with a petitory action, we disagree, given the record before us.

As acknowledged in the jurisprudence, the type of possession necessary to maintain a possessory action is identical in nature to the possession upon which is based acquisitive prescription of thirty years. Chauvin v. Kirchhoff, 194 So.2d 805, 810 (La.App. 1st Cir.1967) (citing Broussard v. Motty, 174 So.2d 246, 248 (La.App. 3rd Cir.1965); Hill v. Richey, 221 La. 402, 418, 59 So.2d 434, 439 (1952); Broussard v. Louisiana Land & Exploration Company, 164 So.2d 84, 93 (La.App. 1st Cir.), writ denied, 246 La. 603, 165 So.2d 488 (1964)). Hence, the possession established by the Kadairs to maintain acquisitive prescription of thirty years pursuant to LSA-C.C. art. 794 in their boundary action would be the same type of possession necessary to sustain a posses-sory action. Here, the trial court found that the Kadairs possessed for thirty years without interruption, within visible bounds, more land than their title called for and fixed the boundary accordingly. Finding that the Kadairs proved acquisitive prescription, the trial court fixed the boundary according to limits established by prescription rather than titles. See LSA-C.C. art. 794. Since the finding of thirty years’ possession is based on the same type of possession for either action, to the extent that there was any confusion with the nature of this action below, we find the error harmless.

| ^Moreover, under both the Louisiana Civil Code and the Louisiana Code of Civil Procedure, the question of ownership can be determined in a boundary action. See LSA-C.C. arts. 792, 794; LSA-C.C.P. art. 3693; Travis v. Lake Superior Piling Company, 401 So.2d 432, 434 (La.App. 1st Cir.), writ denied, 406 So.2d 628 (La.1981). Under LSA-C.C. art. 794, when the boundary action is brought to set a boundary at a visible bound, which has been in existence for more than thirty years and which encloses the land outside of the record title of the person seeking to have the boundary established, proof of ownership is a necessary prerequisite to establishing the boundary. Travis v. Lake Superior Piling Company, 401 So.2d at 435. The proof required under LSA-C.C. art. 794 is the same proof that would be required to prove ownership in a petitory action based on acquisitive prescription of thirty years. Travis v. Lake Superior Piling Company, 401 So.2d at 435; Allen v. Martino, 529 So.2d 90, 93, n. 3 (La.App. 1st Cir.1988); Briggs v. Pellerin, 428 So.2d 1087, 1089, n. 3 (La.App. 1st Cir.1983). Thus, considering our determination herein that the judgment of the trial court set the boundary and established title by acquisitive pre-

scription of thirty years in accordance with LSA-C.C. art. 794, we vacate as erroneous (and unnecessary) the portion of the judgment ordering the defendants to file a petitory action within sixty days pursuant to LSA-C.C.P. art. 3662. As the trial court determined that the Kadairs proved ownership of the disputed tract by acquisitive prescription, a petitory action is not necessary herein.

11fiWe further find no merit to the defendants’ second assignment of error wherein they contend that the Kadairs’ boundary action petition (and resulting judgment) were improper because the petition failed to comply with LSA-C.C.P. art. 3658, which sets forth the necessary requirements to maintain a possessory action. In contrast to a possessory action, a boundary action may be brought by a possessor without regard to the requirements of Article 3658 of the Louisiana Code of Civil Procedure. See A.N. Yiannopoulos, Property § 285, in 2 Louisiana Civil Law Treatise (4th ed.2001); see also Fontenot v. Chapman, 377 So.2d 492 (La.App. 3rd Cir.1979) (for a discussion of the distinction between a possessory, peti-tory, and boundary action).

The defendants further contend that they were aggrieved in that they were not allowed to put on evidence regarding title in defense to the Kadairs’ “possessory action” pursuant to LSA-C.C.P. art. 3657. Again, this argument is misplaced and mis-characterizes the record and proceedings herein. Although the defendants may have had legal title to the disputed property, the trial court was empowered to (and did, in fact) determine that the Kadairs established | ^possession, by acquisitive prescription of over thirty years, of the disputed property up to their fence, so as to prove their boundary action by acquisitive prescription rather than by title and thereby fixed the boundary according to limits established by acquisitive prescription. See LSA-C.C. 794. Thus, we likewise reject this argument.

Further, although not specifically assigned as error on appeal by defendants, after a thorough review of the evidence in this case, we find the trial court’s determination that prescriptive title was conferred upon the Kadairs, based on a factual finding of thirty years of corporeal possession by the Kadairs, is amply supported by the testimony and documentary evidence of record herein. Specifically, the trial court relied on the testimony of Donovan Simmons and Jack Abel, who hunted in the area for thirty years or more, that the fence was upright and continuous; the tes-timony of Lawrence Teddy Martin, who helped Kadair post signs on the property twice as a young child; the expert testimony of Warren Peters that the fence had been in existence for at least fifty years; and the Brown and Butler survey plat, which depicted the fence in question and proved it had been in existence since 1972. In contrast, the trial court specifically found that the testimony from the defendants’ witnesses that the fence was recently constructed or had not been continuously maintained “was purely speculative.” The trial court further found that the testimony of Paul and Melanie Kadair as to their acts of possession since 1974, including, but not limited to, maintaining the fence, posting the property against | ^trespassers, maintaining a road that runs on the south side of the fence by grading it and keeping the roadway clear, hunting, cutting firewood, planting grass, and riding all-terrain vehicles, “was essentially undisputed.”

Considering the factual findings and credibility determinations of the trial court, we decline to disturb the trial court’s determination that the fence in question had been in existence as a fence continuously for more than thirty years prior to the institution of this litigation; that the Kadairs, acting for Herman End-lekofer, their predecessor in title, and for themselves, had possessed the disputed property continuously, peaceably, and without interruption for more than thirty years prior to the institution of this litigation; and that the Kadairs were thereby entitled to judgment “fixing” the north boundary of Tract W by acquisitive prescription according to the fence line as depicted on the Ford survey plat.

Accordingly, we find no merit to these assignments of error.

Challenges to the Ruling Upholding the Servitude (Assignment of Error Number Three)

In their third assignment of error, the defendants contend that the trial court erred in declaring null, without proof of renunciation or abandonment, a dedicated predial servitude of passage and utilities across the northwest portion of Tract W.

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners. LSA-C.C. art. 646. There must be a benefit to the dominant estate. LSA-C.C. art. 647. The estate burdened with a predial servitude is designated as “servient”; the estate in whose favor the servitude is established is designated as “dominant.” LSA-C.C. art. 646, Revision Comments — 1977, comment (d). Predial servitudes are not attached to a particular person, but are due to anyone who |ishappens to be owner of the dominant estate. LSA-C.C. art. 646, Revision Comments — 1977, comment (c). Thus, a predial servitude is inseparable from the dominant estate and passes with it. See LSA-C.C. art. 650(A). The predial servitude continues as a charge on the servient estate even when ownership changes. LSA-C.C. art. 650(B). However, neither contiguity nor proximity of the dominant and servient estates is necessary for the existence of a predial servitude; it is sufficient that their respective location allows one to derive benefit from the charge on the other. LSA-C.C. art. 648. Moreover, one estate may be subjected to a servitude for the benefit of several dominant estates. LSA-C.C. art. 724.

Nonetheless, there is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate. LSA-C.C. art. 647. The owner of the servient estate is not required to do anything. LSA-C.C. art. 651. His obligation is to abstain from doing something on his estate or permitting something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. LSA-C.C. art. 651.

Predial servitudes may be established by an owner on his estate or acquired for its benefit. The use and extent of such servitudes are regulated by the title by which they are created. LSA-C.C. art. 697. In the absence of such regulation, they are governed by the rules set forth in LSA-C.C. arts. 698 through 774. LSA-C.C. art. 697. Predial servitudes are established on, or for the benefit of, distinct corporeal immovables. LSA-C.C. art. 698.

A right of passage is one example of a predial servitude. See LSA-C.C. art. 699. The servitude of passage is the right established for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent | 19of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate. LSA-C.C. art. 705.

The establishment of a predial servitude by title is an alienation of a part of the property to which the laws governing alienation of immovables apply. LSA-C.C. art. 708. Predial servitudes are established by all acts by which immovables may be transferred. LSA-C.C. art. 722. A predial servitude may be established on a certain part of an estate, if that part is sufficiently described. LSA-C.C. art. 727. However, doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the ser-vient estate. LSA-C.C. art. 730.

A predial servitude, such as a servitude of passage, is preserved by the use made of it by anyone, even a stranger, so long as it is used as appertaining to the dominant estate. LSA-C.C. art. 757; Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 2001-2812 (La.App. 1st Cir.12/30/02), 839 So.2d 82, 94, writ denied, 2003-0306 (La.4/4/03), 840 So.2d 1219. The use of the language “so long as it is used as appertaining to the dominant estate” has been interpreted by this court as requiring that someone must use the servitude for the purpose of going onto the dominant estate for some legitimate purpose, either to see the owner or for something connected with the use of the dominant estate. See Latour v. Francis, 417 So.2d 485, 489 (La.App. 1st Cir.), writ denied, 420 So.2d 983 (La.1982).

If a predial servitude is not used for ten years, it is extinguished. LSA-C.C. art. 753; Church v. Bell, 2000-0286 (La.App. 1st Cir.3/28/01), 790 So.2d 82, 84 n. 3, writ denied. 2001-1214 (La.6/15/01), 793 So.2d 1247. Prescription for nonuse of an affirmative servitude is measured from the date of its last use. LSA-C.C. art. 754; Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 839 So.2d at 94. When the prescription of nonuse ] gois pled, the owner of the dominant estate has the burden of proving that someone has made use of the servitude in the manner contemplated by the grant of the servitude and as appertaining to the dominant estate during the period of time required for the accrual of prescription, such that no consecutive ten-year period of nonuse occurred. See LSA-C.C. art. 764; Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 839 So.2d at 94. A partial use of a servitude constitutes use of the whole. LSA-C.C. art. 759. Therefore, the use of a part of the area burdened with a predial servitude interrupts the prescription of nonuse as to the entire area. Claitor v. Brooks, 2013-0178 (La.App. 1st Cir.12/27/13), 137 So.3d 638, 643, writ denied, 2014-0198 (La.4/4/14), 135 So.3d 1182.

The 1972 Brown and Butler survey map of Creekround subdivision, prepared in connection with the development of Creekround subdivision, established and denotes a thirty-foot servitude of passage and utilities that runs across the northwest corner of Tract W. The servitude denoted on the survey map entered Tract W from the property on the west and exited Tract W onto the property north of Tract W. Tract W is owned by the Ka-dairs. The Reserved Tract owned by the Hamptons is adjacent to the servitude. Magnolia Ridge owns the property located to the north and west of Tract W and the Reserved Tract, although the Magnolia Ridge Property is not described or otherwise identified in the subdivision plat.

The particular servitude at issue herein was also recognized in the March 21, 1974 act of sale to Endlekofer from Philip A. Thompson, which provided 121that the tract was “subject to a Thirty (30’) foot servitude of passage and utilities along the northwest corner of said Tract W.” The servitude was subsequently similarly shown in the March 9, 1992 act of sale from Endlekofer to Kadair, which recited that Tract W was “subject to a 30-foot servitude of passage and utilities along the northwest corner.” Both titles contain similar language about Tract W being subject to the thirty-foot servitude of passage and utilities.

Thomas Hampton testified that when he and a co-developer retained Brown and Butler to subdivide the property in 1972, they created and retained ownership of the 1.661 acre Reserved Tract and further created the thirty-foot servitude of passage to access the Reserved Tract. He testified that the Reserved Tract is not a part of Creekround Subdivision, that it is “totally separate” and distinct from the subdivision. The original subdivision survey plat depicts the purpose and location of the servitude, which indicates that it is a charge on Tract W that seemingly benefits the Reserved Tract.

Magnolia Ridge contends that the subdivision plat and subsequent conveyances created a predial servitude of passage in favor of the Magnolia Ridge property. We disagree. As set forth above, the establishment of a predial servitude by title is an alienation of a part of the property to which the laws governing alienation of im-movables apply. La. Civ.Code art. 708. Servitudes claimed under title are never sustained by implication; the title creating them must be express as to their nature and extent, as well as to the estate that owes them and the estate to which they are due. Williams v. Wiggins. 26,060 (La.App. 2 Cir. 8/17/94), 641 So.2d 1068, 1072; see also La. Civ.Code art. 730, Revision Comments (c); Bums Ice Factory, Inc. v. Department of Highways of State of Louisiana, 235 La. 158, 175, 182, 103 So.2d 74, 80, 83 (1957) (original hearing and on rehearing).

| ;>i>The subdivision plat and subsequent conveyances do not identify the property owned by Magnolia Ridge as the dominant estate. In fact, the subdivision plat and conveyances do not describe, identify, or reference the property owned by Magnolia Ridge in any manner.

According to Hampton, the 1.661 acre Reserved Tract, which he and a co-developer of the subdivision retained ownership of, was separate and distinct from the subdivision. Moreover, the original subdivision survey plat Deed Restrictions denote that the 150-foot servitude of passage, utilities, and recreation is for the benefit of all of the subdivision owners. The failure to particularize the thirty-foot servitude in the deed restrictions supports the conclusion that it was the intent of the developers to establish a private servitude on Tract W in favor of the Reserved Tract that benefitted the owner of the Reserved Tract and not the other subdivision owners or the public in general.

Accordingly, we find that the trial court did not abuse its discretion to the extent it did not find that Magnolia Ridge is the dominant estate for the disputed servitude. For that reason, we find that Magnolia Ridge has no legal basis to challenge the portion of the judgment decreeing the servitude null because they have failed to demonstrate that the servitude was established for their benefit, the benefit of their ancestors in title, or the general public. Otherwise stated, Magnolia Ridge has failed to establish that the servitude was established in favor of its estate. See LSA-C.C. art. 646, Revision Comments— 1977, comment (d). Thus, we find that Magnolia Ridge’s contention that the servitude is valid because the Magnolia Ridge property is the dominant estate has no merit.

Having determined that the property owned by Magnolia Ridge is not the dominant estate, the only parties in this litigation with an interest in the | ^determination of the validity of the pred-ial servitude are the Hamptons, the owners of the Reserved Tract. However, the Hamptons’ appeal of the trial court’s judgment was dismissed. Consequently, to the extent that the trial court judgment determines the interests of the Hamptons relative to the servitude, that portion of the trial court’s judgment decreeing the servitude invalid is final and not reviewable in this appeal.

For these reasons, we find no merit to this assignment of error.

Answer to Appeal

The Kadairs filed an answer to defendants’ appeal, in accordance with LSA-C.C.P. art. 2138, seeking damages and attorney’s fees for frivolous appeal pursuant to LSA-C.C.P. art. 2164. Courts have been very reluctant to grant damages under this article as it is penal in nature and must be strictly construed. Furthermore, because appeals are favored in our law, penalties for the filing of a frivolous appeal will not be imposed unless they are clearly due. Cavin v. Harris Chevrolet. Inc., 95-1878 (La.App. 1st Cir.5/10/96), 673 So.2d 654, 658. Damages for frivolous appeal will not be awarded unless it appears that the appeal was taken solely for the purpose of delay or that appealing counsel does not seriously believe in the position he advocates. Guarantee Systems Construction & Restoration. Inc. v. Anthony, 97-1877 (La.App. 1st Cir.9/25/98), 728 So.2d 398, 405, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636. After careful review of the record in this matter, while we do not find merit to all of the defendants/appellants’ claims, we cannot say that this appeal was taken only for the purpose of delay. Moreover, given the zealous representation afforded these defendants by their able counsel, we are unable to find that appealing counsel did not seriously believe in the position he has advocated on appeal. Therefore, damages and attorney’s fees for frivolous ^appeal are not warranted and the relief sought in the Kadairs’ answer to appeal must be denied.

CONCLUSION

For the above and foregoing reasons, the portion of the March 13, 2013 judgment of the trial court, ordering the defendants to file a petitory action within sixty days, is hereby vacated. In all other respects, the judgment is affirmed.

The relief sought in the answer to appeal is hereby denied. Costs of this appeal are assessed one-half each to the parties.

AFFIRMED IN PART, VACATED IN PART; ANSWER TO APPEAL DENIED.

      . In response to defendants’ dilatory exception of vagueness and peremptory exception of no cause of action, the Kadairs filed an amended and supplemental petition.

      . In their 2011 supplemental petition, the Ka-dairs alleged that they had possessed south of the barbed wire fence line since their 1992 purchase of Tract W, ”[a]t least 19 years ago,” and subsequently for their ancestors in title.

      . Louisiana Civil Code article 794 provides that:
      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.

      . At the hearing on the motion for summary judgment, counsel for the defendants reminded the trial court, "[a]s you’ll note from the pleadings, this was a boundary action filed by the Kadairs.” The trial court replied, “No, it wasn’t, it’s a possessory action.” (Emphasis added.)

      . Louisiana Code of Civil Procedure article 3657 provides that:
      The plaintiff may not cumulate the petito-ry and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possesso-ry action, and without dismissing it and prior to judgment therein institutes the peti-tory action, the possessory action is abated.
      When, except as provided in Article 3661(1) — (3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.
      If, before executory judgment in a posses-sory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.

      . Plaintiffs' Exhibit 15 is a survey plat prepared by Tobias P. Ford, Jr. dated December 30, 2012. Ford was commissioned by the Kadairs to prepare a survey plat of the property at issue herein.

      . This initial subdivision plat, set forth above, established the thirty-foot servitude of passage and utilities.

      . In its reasons for judgment, the trial court indicated that Magnolia Ridge had filed a., cross-claim and third-party demand against Coastal Tie & Timber Company, Inc. in warranty and seeking damages. However, those filings are hot contained in the record before us on appeal. Instead, they are contained in a related case also pending on appeal and handed down this date. See Magnolia Ridge Properties, LLC v. Paul A. Kadair, Sr. and Melanie R. Kadair, 2013-2131 (La.App. 1st Cir.7/10/14), 2014 WL 3399066(unpublished opinion). Thus, to the extent that these incidental matters are seemingly being tried sepa- - rately pursuant to LSA-C.C.P. art 1038, the judgment on the main demand herein appears to be final and subject to an immediate appeal pursuant to LSA-C.C.P. art. 1915(A)(4), without the requirement of any LSA-C.C.P. art. 1915(B) designation. Thus, to the extent that the judgment may unnecessarily contain a 1915(B) designation of the judgment as final for purposes of immediate appeal, because the judgment nonetheless appears to be immediately appealable under 1915(A)(4), this court's jurisdiction is proper.

      .The record reflects that after the motion for suspensive appeal was filed purportedly on behalf of all defendants, a letter from defendant Thomas Hampton to Judge William Carmichael, dated April 29, 2013, informing the trial court that he and Janelle Bramlett Hampton were no longer represented by Charles E. Griffin, II, was filed into the record. On May 13, 2013, Mr. Griffin filed a motion to withdraw as attorney of record for Thomas and Janelle Hampton, which was granted by the trial court.
      The Kadairs subsequently filed a motion to dismiss the appeal as to the Hamptons with this court on October 2, 2013, contending that all legal issues between the Hamptons and the Kadairs had been settled. Although not contained in the record before us on appeal, the Kadairs attached to their motion a copy of a quitclaim executed by the Hamptons on June 21, 2013, as to "their portion of the disputed property at issue” herein, i.e., presumably the "irregular arc.” On January 16, 2014, this court signed an order granting the Kadairs’ motion to dismiss the appeal herein as to the Hamptons.

      . See now A.N. Yiannopoulos, Property §§ 336-338, in 2 Louisiana Civil Law Treatise (4th ed.2001).

      . In contrast to a petitory action, in a boundary action "the law requires proof from each of the contiguous owners, and the burden is divided.” The court is bound to fix the boundary according to the ownership of the parties. A party that proves ownership of the disputed tract by acquisitive prescription prevails. A.N. Yiannopoulos, Property § 268, in 2 Louisiana Civil Law Treatise (4th ed.2001) (Citations omitted).

      . While the judgment of the trial court in the boundary action herein ordered that Magnolia Ridge assert a petitory action within sixty days, we note that the trial court’s written reasons for judgment made no mention of such an order. Nonetheless, a trial court’s written reasons for judgment form no part of the judgment, and where there is a conflict between the judgment and the written reasons, the judgment controls. Delahoussaye v. Board of Supervisors of Community and Technical Colleges, 2004-0515 (La.App. 1st Cir.3/24/05), 906 So.2d 646, 654.

      . To maintain the possessory action, the possessor must allege and prove that: (1) he had possession of the immovable property or real right therein at the time the disturbance occurred; (2) he and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by .force or fraud; (3) the disturbance was one in fact or in law, as defined in Article 3659; and (4) the possessory action was instituted within a year of the disturbance. LSA-C.C.P. art. 3658.

      .As noted therein:
      In contrast with a petitory action which is brought for the recognition of one’s ownership of an immovable or of a real right, the boundary action is brought for the fixing of the boundary between contiguous lands. The court does not merely render a judgment recognizing plaintiffs ownership of a disputed strip of land but also determines the line of separation between the contiguous lands with reference to markers on the ground. One who claims the ownership of a strip of land adjoining the land of a neighbor may bring the petitory action or the action of boundary, or he may cumulate the two. It is true that the burden of proof is different in each of the two actions but when ownership is claimed the proof of ownership is the same.
      A.N. Yiannopoulos, Property § 285, in 2 Louisiana Civil Law Treatise (4th ed.2001) (Citations and footnotes omitted; emphasis added).

      . In doing so, we note that the record contains the act of cash sale dated December 4, 2009, from Coastal Tie and Timber Company to Magnolia Properties, as well as testimony from: Raymond Banker; his wife, Tammy Banker; his father-in-law, Lynwood Abbott; and his realtor, Patrick Butler, as to their purchases and acts of possession of the disputed property. Although the defendants contend they are aggrieved, they do not identify or specify what other evidence they would attempt to introduce to establish title, if they were given the opportunity to do so. Moreover, and more importantly, the record contains no proffer of such herein.

      . The Brown and Butler plat also created and notes a 150-foot servitude of passage, utilities, and recreation on the eastern side of Tract W. Although the Deed Restrictions on the original survey plat provide, with reference to the 150-foot servitude of passage, utilities, and recreation that "[t]he servitude of passage utilities and recreation is to be used by all property owners for passage, utilities, and recreational activities not in conflict with other provisions of these restrictions,” the Deed Restrictions are silent as to the thirty-foot servitude of passage and utilities at issue herein.