author: Judge Rosemary Ledet.

text:
    Gary JUENGAIN v. Harry TERVALON, et al.
    NO. 2017-CA-0155
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 26, 2017
    Rehearing Denied September 5, 2017

      Gary Juengain # 92812, Louisiana State Penitentiary, Angola, LA 70712, PRO SE PLAINTIFF
    Ralph R. Alexis, III, PORTEOUS HAINKEL & JOHNSON, LLP, 704 Car-ondelet Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPEL-LEE ■
    ■ (Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown) .
   Judge Rosemary Ledet.

11 This is a legal malpractice case. The plaintiff, Gary Juengain, filed this action against the following three defendants: Harry Tervalon, Bryant Woods, and the Orleans Indigent Defender Program (the “OIDP”) (collectively the “Defendants”). The trial court, arm sponte, dismissed the suit as abandoned pursuant to La, O.C.P. art. 561. From that ruling, Mr. Juengain appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 25, 2008, Mr. Juengain—now incarcerated in Louisiana State Penitentiary in Angola, Louisiana—filed a petition for damages, in proper person, alleging legal malpractice by the attorney who represented him in the criminal case that resulted in his present incarceration. He averred that he was arrested on | a June 5, 2008, for possession of cocaine, a violation of La. R.S. 40:967 C(2). He further averred that he was framed by the New Orleans Police Department (“NOPD”) because of his earlier not guilty verdict. The gist of his malpractice claim is that his former attorney failed to visit him in jail, failed to help him prepare his case, and scheduled a lunacy hearing instead of pursing the information he provided to them; he averred that his attorney’s actions were “worse than being slapped in the face.” Along with the petition, Mr. Juengain filed an In For-ma Pauperis Application. On November 24, 2008, the Defendants were served with the petition.

On November 26, 2008, Mr. Juengain filed a motion for default judgment. The record does not reveal that Mr. Juengain ever confirmed the default judgment motion or that the trial court ever ruled on it. On December 16, 2008, Mr. Juengain sent a letter to the clerk of the Civil District Court (“CDC”) regarding his In Forma Pmperis Application, seeking to determine if it had been granted.

On December 19, 2008, the Defendants filed a motion for extension of time to file responsive pleadings, which was granted. On January 22, 2009, the Defendants filed a second motion for extension of time, which was granted.

On February 3, 2009, Mr. Juengain filed a request for the issuance of a Subpoena Duces Tecum; the trial court denied the request because it was not in the proper form. On that same date, Mr, Juengain filed a request for appointment of counsel; the trial court denied the request, citing the lack of authority for |;iappointment of counsel in a civil case. On February 6, 2009, the Defendants filed their answer and various exceptions—exceptions of no right of action; alternatively, the claim is barred by immunity, no cause of action, res judicata-, alternatively, lis pendens, prescription; alternatively, laches and mootness. On February 13, 2009, the CDC Clerk’s office sent a letter to Mr. Juengain providing him the proper form to use to request a Subpoena Duces Tecum.

On March 3, 2009, Mr. Juengain filed multiple Subpoena Duces Tecum Requests (the “Subpoena Requests”). On May 21, 2009, Mr. Juengain filed a request for copies of the Defendants’ answer and the original petition. On June 3, 2009, the CDC Clerk’s office informed Mr. Juengain that before his request for copies could be processed, he was required to provide a statement of his income. On July 7, 2009, Mr. Juengain filed a statement of his income. On March 6, 2011, Mr. Juengain filed an “Inmate’s Request for Legal/Indigent Mail.”

On September 30, 2014, Mr. Juengain filed a Motion to Amend the Petition (the “First Motion to Amend”). On October 7, 2014, the trial court ordered that Mr. Juengain be allowed to amend his pleadings and that he provide service instructions within thirty days. On January 9, 2015, the Defendants were served with the supplemental and amended petition.

On October 27, 2016, Mr. Juengain filed a Second Motion to Amend the Petition (the “Second Motion to Amend”). On November 2, 2016, the trial judge denied the Second Motion to Amend; and, as noted at the outset of this opinion, the 14trial court, sua sponte, dismissed the suit as abandoned pursuant to La. C.C.P. art. 561. The trial court’s order stated as follows:

All of the requests by plaintiff Gary Juengain are hereby denied. This case Juengain versus Tervalon CDC 2008-8854 has been abandoned by operation of law. A subpoena request was filed on March 3, 2009. The next step was a motion to Amend the Petition on September] 30, 2014 [the First Motion to Amend]. As more than three years passed, the case has been abandoned. This Court dismisses plaintiff Gary Juengain’s claim with prejudice at his costs.

This appeal followed.

DISCUSSION

The sole issue presented by this appeal is whether the trial court erred in dismissing Mr. Juengain’s malpractice suit as abandoned pursuant to La. C.C.P. art. 561. Whether a suit has been abandoned is a question of law. Olavarrieta v. St. Pierre, 04-1566, p. 3 (La. App. 4 Cir. 5/11/05), 902 So.2d 566, 568. In reviewing a question of law, an appellate court applies a de novo standard of review. Delacruz v. Anadarko Petroleum Corp., 14-0433, p. 8, n. 9 (La. App. 4 Cir. 12/3/14), 157 So.3d 790, 795 (citing Liner v. Ippolito, 08-0208, p. 3 (La. App. 4 Cir. 8/20/08), 991 So.2d 1150, 1152) (noting that “[t]he issue of abandonment is a | ¿question of law subject to de novo review on appeal.”). The question the appellate court must decide is simply whether the lower court’s interpretive decision is legally correct. Faust v. Greater Lakeside Corporation, 03-0808, p. 3 (La. App. 4 Cir. 11/26/03), 861 So.2d 716, 718; see also Heirs of Simoneaux v. B-P Amoco, 13-0760, p. 3 (La. App. 4 Cir. 2/5/14), 131 So.3d 1128, 1130 (citing Meyers ex rel. Meyers v. City of New Orleans, 05-1142, p. 2 (La. App. 4 Cir. 5/17/06), 932 So.2d 719, 721).

An action—other than a succession proceeding—is abandoned “when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” La. C.C.P. art. 561 A(l). For purposes of abandonment, “[a] party takes a ‘step’ in the prosecution or defense of an action when he takes formal action before the court intended to hasten the matter to judgment, or when he takes a deposition with or without formal notice.” James v. Formosa Plastics Corp. of Louisiana, 01-2056, p. 4 (La. 4/3/02), 813 So.2d 335, 338 (citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784 and collecting cases). Not all filings in the court record are considered “steps” for purposes of interrupting the abandonment period; for example, requests for notice; change of address notices; and motions to withdraw, enroll, or substitute counsel are not “steps.” True Gospel of Jesus Christ Church Ministry v. Doucette, 08-0634, p. 5 (La. App. 4 Cir. 11/19/08), 999 So.2d 795, 798.

The Supreme Court, in Clark, construed La. C.C.P. art. 561 as imposing the following three requirements on a plaintiff to avoid abandonment:

First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a “step” is defined as taking formal action before the court which is intended to hasten the suit toward | ¿judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period óf the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.

Clark, 00-3010 at p. 6, 785 So.2d at 784 (internal footnotes omitted); see also Louisiana Dept. of Transportation and Development v. Oilfield Heavy Haulers, L.L.C., 11-0912, pp. 4-5 (La. 12/6/11), 79 So.3d 978, 981.

Upon the passage of a three year interval during which neither party takes a “step” in the prosecution or defense of the action, abandonment takes place automatically. La. C.C.P. art. 561 A(l) and (3). “The article is operative, and the dismissal effective, as soon as this interval has expired. An actual judgment is not necessary to ratify or confirm the fact of abandonment.” Clark v. S. Tire Serv., Inc., 00-1548, p. 2 (La. App. 5 Cir. 2/14/01), 782 So.2d 27, 28; see La. C.C.P. art. 561 A(3) (providing that “[t]his provision shall be operative without formal order.”). Hence, “a defendant is not required to file a motion to dismiss a case as abandoned in order to make the plaintiffs abandonment of the case effective.” 1 Judge Steven R. Plotkin and Mary Beth Akin, LOUISIANA PRACTICE SERIES: LOUISIANA CIVIL PROCEDURE, Article 561 (2016 ed.).

The jurisprudence has outlined the following general principles on abandonment:

• The purpose of Article 561 is the prevention of protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La. 1983). Abandonment is not a •punitive concept; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court and not to lose same by some technical carelessness or unavoidable delay, and (2) the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription. Clark, 00-3010 at pp. 10-11; 785 So,2d at 787.
h» The Louisiana Supreme Court has uniformly held that Article 561 must be liberally construed in favor of maintaining a plaintiffs suit. Oilfield Heavy Handers, 11-0912 at p. 5, 79 So.3d at 981-82 (citing Clark., 00-3010 at p. 8, 785 So.2d at 785). “Because dismissal is the harshest of remedies, any. reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment.” Oilfield Heavy Haulers, supra (citing Clark, 00-3010 at p. 10, 785 So.2d at 787).
• . “The intention of Article 561 is not to dismiss suits as abandoned based on technicalities.For the purpose of . determining abandonment, the intent and substance of a party’s actions matter far more than technical compliance.” Oilfield Heavy Haulers, 11-0912 at pp. 5-6, 79 So.3d at 982 (internal citations omitted).

Nationstar Mortgage, LLC v. Harris, 13-1335, p. 9 (La. App. 4 Cir. 5/14/14), 141 So.3d 829, 836. With these principles in mind, we evaluate whether Mr. Juengain’s claim is' abandoned.

The record reflects that no formal action took place for more than three years between March 3, 2009—the date Mr. Juengain filed the Subpoena Requests—and September 30, 2014—the date he filed the First Motion to Amend. Thus, Mr. Juengain’s suit is abandoned on its face. When, as here, a plaintiffs suit is abandoned on its face, the sole issue presented is whether any of the exceptions to abandonment apply. Food Perfect, Inc. v. United Fire & Cas. Co., 12-2492, p. 1 (La. 1/18/13), 106 So.3d 107, 108.

|sThe jurisprudence has recognized only two exceptions—both based on prescription principles—to the abandonment rule; those exceptions are as follows:

(1) a plaintiff-oriented exception based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control [the “Plaintiff-Oriented Exception”]; and
(2) a defense-oriented exception based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned [the “Defense-Oriented Exception”].

Clark, 00-3010 at p. 7, 785 Sol2d at 784-85.

These two exceptions reflect the distinction the jurisprudence has drawn between the post-abandonment actions of a plaintiff and a defendant. A defendant’s post-abandonment actions may result in a waiver (the Defense-Oriented Exception); whereas, a plaintiffs actions may not. “ ‘Onice abandonment has occurred, action by the plaintiff cannot breathe new life into the suit.’ ” Clark, 00-3010 at p. 15, 785 So.2d at 789 (quoting 1 Frank L. Maraist & Harry T. Lemmon, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE § 10.4 at 243. (1999)). Any post-abandonment actions taken by a plaintiff is “inefficacious” to counteract application of the article. Semel v. Green, 252 La. 386, 394, 211 So.2d 300, 304 (1968). The Plaintiff-Oriented Exception is thus focused solely on the circumstances of the case before abandonment has occurred.

In this case, Mr. Juengain does not contend that the Defendants took any post-abandonment actions that could constitute a waiver of their right to. assert abandonment; thus, the Defense-Oriented Exception does not apply. Mr. Juengain, however, does contend that there were circumstances beyond his control that | ¡¡caused his failure to prosecute this action. Indeed, Mr. Juengain’s sole assignment of error is that the trial, court erred in dismissing his suit “as being abandoned when the United States Justice Department obtained all civil and criminal records—and stayed each during their federal investigation of the New Orleans Police Department.” The dispositive issue is thus whether the Plaintiff-Oriented Exception applies here.

The Plaintiff-Oriented Exception evidences the well-established rule that prescription does not run against one who is unable to interrupt it. Melancon v. Continental Cas. Co., 307 So.2d 308, 311 (La. 1975) (abrogated on other grounds in Clark, 00-3010, p. 13, 785 So.2d at 788). Explaining the Plaintiff-Oriented Exception, we noted, in the Faust case, the following:

Where a party is prohibited from taking a step in the prosecution of a case because of circumstances beyond that party’s control, Louisiana courts' have applied the doctrine of contra non va-lentem to interrupt the running of the abandonment period during the period of incapacity. The contra non valentem exception to the running of the abandonment period, however, contemplates a legal impediment that makes it impossible for a party to take the actions necessary to prevent the running of the abandonment period, and the exception has been given a very narrow scope.

03-0808 at p. 7, 861 So.2d at 720-21 (citing Deborah J. Juneau and Gayla M. Monda, Abandonment: An -Evolving Concept of Liberative Prescription, 63 La. L. Rev. 341, 366-67 (2003) (“Juneau & Monda”)).

Narrowly construing the scope of the scope of the Plaintiff-Oriented Exception, the jurisprudence has oft-stated that only two circumstances comply with the requirements of the exception—when the plaintiff is serving in the United States armed services or is being confined to a mental institution. Faust, 03-0808 at p. 7, n. 3, 861 So.2d at 721; see also Willey v. Roberts, 95-1037, p. 6 (La. App. 1 Cir. 12/15/95), 664 So.2d 1371, 1376; Haisty v. State, Dept. of Transp. & Dev., 634 So.2d 919, 922 (La. App. 2d Cir. 1994); Manuel v. Lacarbo, 554 So.2d 774, 775 (La. App. 5th Cir. 1989); Pounds v. Yancy, 224 So.2d 1, 4 (La. App. 1st Cir. 1969). Outside of those two circumstances, the jurisprudence has “generally rejected all other excuses.” Juneau & Moncla, 63 La. L. Rev. at 366; but see \ ^Johnson v. Calcar sieu Parish Sheriff's Dept., 06-1179, p. 4 (La. App. 3 Cir. 2/7/07), 961 So.2d 496, 500 (noting that although “these two circumstances were listed as examples of exceptions, we do not find that they are exclusive.”).

The jurisprudence has held that “general, business-type delays are not the legal impediments or circumstances described in the jurisprudence that make it impossible for the plaintiff to take steps to hasten his own matter to trial.” Hercules Offshore, Inc. v. Lafayette Parish Sch. Bd., Sales & Use Tax Dept., 14-701, p. 11 [ia(La. App. 3 Cir. 2/11/15), 157 So.3d 1177, 1184. Capsulizing the scope of the Plaintiff-Oriented Exception, a commentator states as follows:

Abandonment does not occur if the party does not have power to take legal action during the period, such as when the judge takes the case under advisement, or the judge orders a transcript and the court reporter is unable to transcribe it. However, if the party can take some step to force action by a third person, the party must take that step or the abandonment period will accrue.

1 Frank L. Maraist, LA. CIV. L. TREATISE, CIVIL PROCEDURE § 10:4 (2d ed. 2016) (internal footnotes omitted). Applying those principles, the jurisprudence has uniformly held that neither pro se litigant status nor incarceration alone is a basis for invoking the Plaintiff-Oriented Exception.

Explaining why pro se litigant status is insufficient to invoke the exception; the Supreme Court in Food Perfect, Inc. stated as follows:

[PJlaintiff does not allege any circumstances beyond his control, such as natural disasters, prevented him from taking any steps to prosecute this action. Rather, he candidly admits that as a pro-se litigant,- he was unaware of the applicable deadlines. Courts have held pro-se litigants assume responsibility for their lack of knowledge of the law. See Led-better v. Wheeler, 31,357 at p. 3 (La. App. 2 Cir. 12/9/98), 722 So.2d 382, 384 (“[although we concede that Ledbetter, as a layperson, was representing himself, a pro se litigant assumes all responsibility for his own inadequacies and lack of knowledge of procedural and substantive laws”). Under these circumstances, we find contra non valentem does not apply.

12-2492 at p. 2, 106 So.3d at 108; see also Coe v. State, Health Care Auth., 32,635, p. 6 (La. App. 2 Cir. 2/1/00), 751 So.2d 432, 435-36 (reasoning that pro se plaintiff “could have taken appropriate steps to move the litigation forward, but he failed to do so.”); see also Courtney v. Henderson, 602 So.2d 95, 96 (La. App. 4th Cir. 1992) (holding that the plaintiffs . attorney’s inaction does not fall constitute a circumstance beyond the plaintiffs control under the Plaintiff-Oriented Exception).

Likewise, the jurisprudence has uniformly held that a plaintiffs incarceration alone is not a ground for invoking the Plaintiff-Oriented Exception. Illustrative, in Jones v. Phelps, 95-0607 (La. App. 1 Cir. 11/9/95), 665 So,2d 30, the appellate court rejected the argument that the plaintiffs incarceration was a legal impediment sufficient to invoke the Plaintiff-Oriented Exception. In so doing, the court reasoned as follows:

The fact that Jones may have been incarcerated for a period of time while this case was pending or may have made unsuccessful attempts at engaging-new counsel did not create a legal impediment which kept him from hastening the matter to judgment. At any time, Jones could have taken appropriate steps to move the litigation forward, but failed to do so.

Jones, 95-0607 at p. 6, 665 So.2d at 34.

Quoting with approval the above reasoning from the Jones case, the appellate court in Stemley v. Foti, 40,379, pp. 10-11 (La. App. 2 Cir. 10/26/05), 914 So.2d 642, 647-48, rejected the-plaintiffs contention that the exception applied because “part of the delay experienced in this case was due to circumstances beyond his control—i.e., his imprisonment.” Id, The court in Stem-ley reasoned as follows:

Mr. Stemley asserts that he gave pleadings to prison officials dated April 4, 2004, July 30, 2004, and February 17, 2005; however our review concludes that the April and July 2004 pleadings are not present in the record and the February 2005 pleadings were filed beyond the abandonment period. Accordingly, based on this record and the applicable jurisprudence, we cannot- say that Mr. Stemley’s imprisonment created a legal impediment to his pursuit of this matter.

40,379 at pp. 10-11, 914 So.2d at 648.

I ^Likewise, the appellate court in Brown v. Sutherland Lumber, Inc,, 10-469, p. 5 (La. App. 3 Cir. 11/3/10), 53 So.3d 477, 480, also citing with approval the Jones case, reasoned as follows:

While this court is sympathetic to Brown’s predicament in that he allegedly could not find counsel to represent him, nor could he appear in court, as he was incarcerated, his inability to appear ’in.;court did not hinder Brown from taking a step under La.Code Civ.P. art. 561, nor does his incarceration fall within an exception to the abandonment rules.

Id.

To recap, neither pro se litigant status nor incarceration alone is, a ground for invoking the Plaintiff-Oriented Exception. Here, however, Mr. Juengain contends that, in addition to his pro se status and incarceration, the United States Justice Department’s investigation of the NOPD contributed to his inability to file any preliminary proceedings or pretrial discovery in either his criminal or civil case. Mr. Juengain states that it was not his fault that he could not move the case forward because he was unable to “obtain pertinent documents to perfect interrogatories, or any other form of discoveries.” As the Defendants point out, Mr. Juen-gain’s argument is that he was prevented from obtaining “crucial documents” and filing pretrial motions in his criminal and civil cases because all of the pleadings that he filed were either ignored or “plucked” from the record by the United States Justice Department, A similar argument recently was rejected by the appellate court in Loud v. Raising Cane’s Restaurants, LLC, 17-25 (La. App. 3 Cir. 5/24/17), — So.3d -, 2017 WL 2267320.

In Loud, as here, the plaintiff was also a defendant in a parallel criminal case. Both the civil and criminal case arose out of an incident at a Raising Cane’s restaurant during which the plaintiff was forcibly removed by an off-duty officer. |1fiIn the criminal case, the plaintiff filed a Subpoena Duces Tecum and a notice of deposition directed to Raising Cane’s seeking the video of the incident. The trial court dismissed the civil case as abandoned for lack of action in that case.

On appeal from that dismissal, the plaintiff in Loud argued, among other things, that the trial court erred in finding his suit abandoned given that Raising Cane’s “ ‘actions of misrepresenting facts regarding the existence of video evidence clearly prevented [the plaintiff,] Keldrick Loud[,] from prosecuting the present action.’” Loud, 17-25 at — So.3d at -, 2017 WL 2267320 at *1. In support, he argued that “Raising Cane’s, in response to a request in the criminal case for video taken the night of the incident, denied having any such evidence” and that “Raising Cane’s deception prevented Mr. Loud from prosecuting his civil claim,” Loud, 17-25 at — So.3d at -, 2017 WL 2267320 at *2. Rejecting this argument, the appellate court reasoned that “[t]he alleged failure of Raising Cane’s to turn over evidence in its possession in a separate criminal case is not a sufficient cause for Mr. Loud to fail to take any step in the prosecution of this suit for over .three years.” Id. The appellate court thus found that the Plaintiff-Oriented Exception was inapplicable and affirmed the trial court’s judgment dismissing the suit as abandoned.

By analogy, Mr. Juengain’s argument regarding his parallel criminal case and the actions of the United States Department of Justice in unrelated matters is unpersuasive. The record on appeal in this case is devoid of any evidence to support Mr. Juengain’s argument that he was impeded in pursuing this civil case or that this case was stayed. In his appellant brief, Mr. Juengain cites “Exhibits A, B, D, and 2” in support of his argument for the reinstatement of his malpractice suit. The exhibits he cites are pleadings from two other .civil suits; the Investigation of |Uithe NOPD by the United States Department of Justice; and the Consent Decree regarding the NOPD. As the Defendants point out, the exhibits Mr. Juengain cites were attached to either the Motion to Stay filed in the trial court or the supplemental briefs Mr. Juengain filed in this court.

As noted elsewhere in this opinion, the Motion to Stay was filed on January 10, 2017, which was after the order of dismissal was issued and the notice of appeal was filed. The trial court denied the Motion to Stay on January 11, 2017, noting that the case had been dismissed as abandoned. Mr. Juengain’s reliance on documents filed into the record after the trial court’s order of dismissal is misplaced. See Payton v. Lake Lawn Park, Inc., 15-0274, p. 3, n. 5 (La. App. 4 Cir. 11/10/15), 179 So.3d 809, 811.

In Payton, the plaintiffs filed a “Note of Evidence” into the record containing evidence of the formal discovery that they contended interrupted the time period for abandonment. Declining to consider this evidence, we reasoned that “[b]ecause this evidence was not before the trial court when it signed the order [of dismissal], we cannot consider it on appeal.” Id. The same is true here.

Insofar as the exhibits attached to Mr. Juengain’s supplemental briefs, “[t]he appellate briefs or motions of parties and attachments thereto are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to therein, or in exhibits attached thereto, if those facts are not in the record on appeal.” Board of Directors of the Industrial Development Board of the City of New Orleans v. All Taxpayers, Property Owners, Citizens of the City of New Orleans, 03-0827, p. 4 (La. App. 4 Cir. 5/29/03), 848 So.2d 733, 737. Indeed, “[a]n appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence.” Id. (citing Augustus v. St. Mary Parish School Board, 95-2498, p. 16 (La. App, 1 Cir. 6/28/96), 676 So.2d 1144, 1156); see also La. C.C.P. art. 2164 (providing that an appellate court’s decision must be rendered “upon the record on appeal”). Given that the exhibits Mr. Juengain cites are not a part of the record on appeal, we cannot consider them.

Based on the record on appeal, the trial court did not err in dismissing this action as abandoned pursuant to La. C.C.P. art. 561. Nonetheless, we recognize that the trial court’s judgment is partially in error in that it orders this action be dismissed with prejudice. An action may be dismissed as abandoned under La, C.C.P. art. 561 only without prejudice. Liner, 08-0208 at p. 2, n. 1, 991 So.2d at 1152 (collecting cases). Given that this is a tort suit—a legal malpractice (professional negligence) suit—the dismissal of this suit, whether with or without prejudice, produces no different result. Id. A dismissal without prejudice is considered as if the suit has never been filed; hence, any new suit that Mr. Juengain might file would be barred by prescription. Id. Accordingly, we decline to exercise our authority, pursuant to La. C.C.P. arts. 2164 and 2129, to amend the trial court’s judgment. Id.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . In their answer, the Defendants point out that the OIDP was incorrectly referred to in the petition as the "Orleans Public Defenders.” The OIDP employed the other two defendants, Mr. Woods and Mr. Tervalon. Mr. Juengain avers that Mr. Woods represented him in his parallel criminal case.

      . In State v. Juengain, 09-0425 (La. App. 4 Cir. 1/20/10), 41 So.3d 499, this court conditionally affirmed Mr. Juengain's conviction in the parallel criminal case and remanded the matter to the district court for consideration of Mr. Juengain's timely-filed pro se motion for a new trial. The district court denied Mr. Juengain’s motion for new trial, and this court denied Mr. Juengain's writ application seeking review of that ruling. State v. Juengain, 11-014 (La. App. 4 Cir. 2/23/11) (unpub.). The Louisiana Supreme Court likewise denied his writ application. State v. Juengain, 11-0434 (La. 3/2/12), 83 So.3d 1033.

      . As discussed elsewhere in this opinion, on January 10, 2017, Mr, Juengain filed in the trial court a "Motion Requesting Stay and/or Abeyance Pending Federal Government Investigation of New Orleans Police Department New Probe” (the "Motion to Stay”). On January 11, 2017, the trial court denied the Motion to Stay, stating “case has been dismissed with prejudice as it has abandoned.”

      . Although the question of whether a suit is abandoned is a question of law, “the question of whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to manifest error analysis on appeal.” R.L. Luden Tile Co. v. Solid Rock Co., 16-0690, p. 6 (La. App. 4 Cir. 3/29/17), 215 So.3d 710, 713-14; see also Lyons v. Dohman, 07-0053, p. 4 (La. App. 3 Cir. 5/30/07), 958 So.2d 771, 774 (internal citations omitted) (explaining that "[w]hether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. On the other hand, whether a particular act, if proven, precludes abandonment is a question of law which we review by simply determining whether the trial court’s interpretative decision is correct.”).

      , Although Mr. Juengain filed documents into the record between March 3, 2009, and September 30, 2014, those filings—a request for copies filed on May 21, 2009; a statement of his income filed on June 3, 2009; and an "Inmate's Request for Legal/Indigent Mail" filed on March 6, 2011—were not "steps” in the prosecution. Stated otherwise, those filings were not formal actions intended to hasten the matter to judgment. Clark, 00-3010 at p, 6, 785 So.2d at 784. Regardless, as the Defendants correctly point out, even assuming that those filings could be considered "steps,” this case is still abandoned, on its . face, as the last filing before the filing of the First Motion to Amend on September 30, 2014, was made on March 6, 2011. The period of time between March 6, 2011, and September 30, 2014, is more than three years.'

        . See Pecot v. Calcasieu-Cameron Hosp. Serv. Dist., 03-1102, p. 5 (La. App. 3 Cir. 2/18/04), 867 So.2d 56, 60 (noting that "[pjroperly viewed, these two exceptions evidence two well-established rules of prescription; (1) prescriptions does not run against one who is unable to interrupt it, and (2) prescription may be interrupted by acknowledgment.”).

      . Following Hurricanes Katrina and Rita, the jurisprudence identified a third circumstance in which the Plaintiff-Oriented Exception would be held to apply—a natural disaster. Food Perfect, 12-2492 at p. 2, 106 So.3d at 108. Indeed, the Legislature passed special legislation to provide an extended abandonment period for those affected by those two specific natural disasters. See 1 Frank L. Ma-raist, LA. CIV. L. TREATISE, CIVIL PROCEDURE § 10:4 (2d ed. 2016) (noting that "Act 361 of 2007 amended CCP Art. S61 A to extend to five years the period for abandonment where (1) the action was initiated prior to Aug. 26, 2005, and was not previously declared abandoned under the general three year period, and (2) the party proves that the failure to take a step in the prosecution or defense was caused by or was a direct result of Hurricanes Katrina or Rita,”); see also Harris v. Stogner, 07-1451, pp. 2-3 (La. 11/9/07), 967 So.2d 1151, 1152 (holding that "[t]he jurisprudence has recognized a general exception to abandonment, based on the doctrine of contra non valentem, in cases where a party is affected by circumstances beyond his control.., However, in cases where the exceptional circumstances arise as a result of Hurricanes Katrina or Rita, we find the specific legislation in La. R.S. 9:5822 and La. R.S. 9:5824 supercedes the general jurisprudential exception.”); La. C.C.P. art. 561 A(6) (providing that this provision “shall become null and void on August 26, 2010.”).

      . The jurisprudence rejecting other excuses as a basis to invoke the Plaintiff-Oriented Exception has been summarized as follows:
      • Louisiana courts have stated that a plaintiff's allegations in his appellate brief regarding his mental and emotional state and "disabling depression” were not proof of circumstances beyond his control which prevented him from taking a step in prosecution sufficient to prevent his suit from abandoning. [Aucoin v. Baton Rouge Jaycees, Inc., 491 So.2d 422, 424-25 (La. App. 1st Cir. 1986).]
      • Likewise, a plaintiff's eight years of incarceration and the withdrawal of his counsel during that time were not considered circumstances beyond his control. Here, the court stated that the plaintiff's incarceration and unsuccessful attempts to engage new counsel did not create legal impediments which prevented him from prosecuting his case. The court noted that the plaintiff could have, but failed to, move his case toward judgment for a period of eleven years. [Jones v. Phelps, 95-0607, p. 6 (La. App. 1st Cir. 11/9/95), 665 So.2d 30, 34. See also Haisty v. State through Dept. of Transp., 25,670 (La. App. 2 Cir. 3/30/94), 634 So.2d 919, 922 (rejecting plaintiff’s argument that withdrawal of D.O.T.D.’s counsel and failure of Attorney General to enter lawsuit as mandated by law prevented her from prosecuting her suit—no legal impediment was created); Brown v. Edwards, 435 So.2d 1073, 1075-76 (La. App. 1st Cir. 1983) (rejecting plaintiffs' claim that their attorney had withdrawn prevented them from prosecuting case; litigants always have the power to discharge an attorney who neglects or refuses to act and to replace him with a new attorney); Courtney v. Henderson, 602 So.2d 95, 97 (La. App. 4th Cir. 1992).]
      • Likewise, ... a Louisiana appellate court ruled that a plaintiff’s inattention to her suit was her fault rather than the fault of the defendant. The court reasoned that even though the plaintiff may have been unaware that her attorneys were not prosecuting her case and that her suit could abandon, these were not circumstances beyond her control. Nor was her lack of notice of the ex parte motion to dismiss the suit considered relevant, since abandonment occurred by operation of law, even if no party moved for formal dismissal. [Succession of Knox, 579 So.2d 1164 (La. App. 2d Cir. 1991).]
      • In another case, the appellate court rejected the plaintiff’s excuses that one of her attorneys had been disbarred, another faced disbarment, and her file had been destroyed in a fire at one of her attorney’s offices. The court found that these were not circumstances beyond her control that prevented her from prosecuting her case. Likewise, [the] appellate court rejected [the] plaintiff’s arguments that the defendant's failure to submit pretrial inserts pursuant to the court’s order prevented her from prosecuting her case, pointing out that the plaintiff could have filed a motion to compel the defendant’s pretrial inserts. [Willey v. Roberts, 95-1037 (La. App. 1 Cir. 12/15/95), 664 So.2d 1371.]
      • The Louisiana Supreme Court also rejected arguments that a plaintiff was prevented from prosecuting her case against a defendant in the trial court while her appeal of a dismissal of another defendant was pending. The court reasoned that the plaintiff's cause of ac-. tion against the defendant in the trial court was not implicated in the appeal, and she was not prevented from prosecuting that action because of the pending appeal involving the other defendant. [James v. Formosa Plastics Corp., 01-2056 (La. 4/3/02), 813 So.2d 335.]

        Juneau & Moncla, 63 La. L. Rev. at 366-68.

      . The Johnson case involved a unique factual scenario. There, the plaintiffs sued to collect a reward for providing information leading to the arrest and conviction of a triple homicide suspect. The reward notice read as follows: " ‘[i]n order to receive payment for the reward, the person or persons responsible for the crime must be convicted of the crimes, unless the Sheriff makes a finding, in his sole discretion, of impossibility of conviction due to the death or incapacity of such person or persons.'” Johnson, 06-1179 at p, 3, 951 So.2d at 499. Although the suspect that the plaintiffs identified was convicted, the Louisiana Supreme Court reversed the conviction. Given the district attorney had the sole discretion of whether to retry the suspect, the appellate court held that the plaintiffs’ failure to prosecute their action was caused by circumstances beyond their control and that the Plaintiff-Oriented Exception applied.

      . See also Roy v. Belt, 13-1116, pp. 8-9 (La. App. 3 Cir. 10/8/14), 149 So.3d 957, 963 (holding that "the death of Judge Polk [the trial judge] and subsequent issue concerning which judge had the authority to hear the case did not create a circumstance out of the plaintiffs’ control” and noting that the subsequent trial judge pointed out that "any party could have asked him if he was the appropriate judge, and he would have written to the supreme court.”).

      . See also Countrywide Home Loans, Inc. v. Estate of Rowe, 51,489, pp. 13 (La. App. 2 Cir. 6/21/17), 224 So.3d 1152, 1157, 2017 WL 2665122 at *6 (holding that ''[sjuits dismissed for want of prosecution do not decide any issues in controversy, do not form the basis of res judicata, and are therefore presumptively to be dismissed without prejudice.”).


source: Caselaw Access Project

author: JAMES F. MCKAY III, CHIEF JUDGE

license: Public Domain

text:
    STATE of Louisiana v. Anthony M. WATTS
    NO. 2017-KA-0208
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 28, 2017

      LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, ORLEANS PARISH, DONNA ANDRIEU, ASSISTANT DISTRICT ATTORNEY, J. TAYLOR GRAY, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, Louisiana 70119, Counsel for the State
    SHERRY WATTERS, LOUISIANA APPELLATE PROJECT, P. 0. Box 58769, New Orleans, Louisiana 70158, Counsel for the Defendant/Appellant
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Rosemary Ledet)
   JAMES F. MCKAY III, CHIEF JUDGE

JjSTATEMENT OF CASE

On September 25, 2015, the defendant was charged with illegal possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. He was also charged with a misdemeanor, flight from an officer, in violation of La. R.S. 14:108.1.

A hearing on the defendant’s motion to suppress evidence was heard on August 3, 2016. The court denied the defendant’s motion to suppress evidence and found no probable cause as to the felon with a firearm offense.

Trial commenced on September 20, 2016. The court recessed the trial after the testimony of Officer John Sananayke was complete. On September 22, 2016, the defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), reserving his rights to challenge the trial court’s ruling denying his motions to suppress the evidence and statements.

The trial court sentenced the defendant to ten years imprisonment at hard labor without benefit of parole, probation or suspension of sentence for the illegal possession of a fire arm by a convicted felon, and to six months in Orleans Parish hPrison for the misdemeanor. The State immediately filed a multiple bill pursuant to La. R.S. 15:529.1, alleging the defendant to be a third offender. The defendant admitted the allegations. The court then vacated the previously imposed sentence and sentenced the defendant to thirteen years and four months at hard labor, without benefit of parole, probation, or suspension of sentence. The sentence was ordered to be served concurrently with the misdemean- or. The court noted that the plea was accepted under State v. Crosby and that the defendant was preserving his right to appeal the denial of his motion to suppress evidence and statements.

STATEMENT OF FACT

Officer John Mclver testified at the motion hearing that on the afternoon of September 25, 2015, he and his partner, John Sananayke, were traveling on Willow Street in a fully marked “Explorer SUV” in an easterly direction. Officer Mclver was seated in the passenger seat. As the officers passed Milan, a one-way street, they observed a black GMC SUV stopped at the intersection, facing the wrong direction. Officer Mclver looked back to see the GMC turn against the direction they were traveling onto Willow.- Realizing that the GMC was traveling the wrong direction on a one-way street, Officer Sana-nayke performed a U-turn as the officers observed the GMC turn onto General Pershing Street, also a one way street, in the wrong direction. The officers passed General Pershing and turned onto the next street and proceeded towards Claiborne Avenue in the same direction as the GMC.

Once on Claiborne, the officers did not see the GMC and decided to turn back down General Pershing. As they passed the Popeyes at the corner of General Pershing and Claiborne, they observed the GMC in the rear of the parking lot.

laOfficer Sananayke said, “There is the vehicle right there. It’s in that parking lot.” As soon as Officer Sananayke stopped the police vehicle, both brake lights on the GMC came on, and it-backed out of the parking spot. The GMC drove onto Claiborne. Officer Sananayke backed up onto Claiborne and continued behind the GMC after it emerged' from the lot. The officers activated their lights and siren; however the GMC “began speeding up and slamming .on its brakes, speeding up and slamming on its brakes, swerving back and forth.” From behind, Officer Mclver could clearly see the driver of the GMC “messing with stuff underneath the seat or underneath the dashboard.”

The GMC continued to proceed in this manner for approximately two blocks and then abruptly pulled to the right-hand side of the road and almost came to a complete stop. The officers pulled in behind the GMC; however, the vehicle “abruptly took off’ and “burst back into the traffic.” The GMC proceeded for another block or block-and-a-half in this manner until the driver stopped and pulled over.

Officer Sananayke and Officer Mclver both approached the vehicle: Officer Sana-nayke on the driver’s side, Officer Mclver on the passenger side. Given the experience they had just had, Officer Mclver asked the occupants to show their hands and instructed them to step out. Mr. Watts (the defendant) was the driver of the vehicle. There was a front seat passenger, Mr. Brown, and two children in the back.

The men were handcuffed and Officer Mclver advised them of their Miranda rights. Officer Mclver asked Mr. Watts what he was hiding when he was making I/‘those movements.” Mr. Watts stated that he was “trying to pick something up, and then the gas pedal got stuck or something and that’s why it caused him to take off like he did.”

After they were secured, Officer Sana-nayke immediately moved to where they saw Mr. Watts leaning and retrieved a black hand gun.

After the gun was found, Mr. Watts stated that “he found it in New Orleans East in a field or by a gas station, that he just found it,”

Mr. Watts was arrested for the flight and also for possession'of a firearm by a convicted felon. He was operating the vehicle under a suspended license. Both subjects were wanted by. multiple jurisdictions.

At the trial, Officer Sananyake testified that after the GMC pulled over, their “alert level was high.” They “stayed at the vehicle advising them to put their hands out of the window for our safety” and approached the vehicle cautiously. After the defendant had been secured and responded to the officers’ questions regarding his actions, Officer Sananayake went to the driver’s compartment to investigate.

Officer Sananauake stated that the first place he looked was in the center console. He popped the top, took out the top shelf and rifled around in the center console. After that, he went to the side of the seat and then moved to the area where he had seen the defendant reaching down. He could see that the area where the carpet met the floorboard “looked manipulated,” so he looked in that area and discovered the black handgun.

Officer Sananayake explained that he looked in the console first because that was the immediate area where the driver was reaching, so he “just started from the top.”

^ERRORS PATENT

A review of the record for errors patent reveals that the trial court failed to impose a mandatory fine for the defendant’s conviction of possession of a firearm by a convicted felon. In addition to imprisonment, La. R.S. 14:95.1 mandates the imposition a fine of not less than one thousand dollars nor more than five thousand dollars. Accordingly, we remand this case for the imposition of the mandatory fine. See State v. Stephens, 2009-0631, p. 10 (La. App. 4 Cir. 11/24/09), 27 So.3d 987, 993.

ASSIGNMENT OF ERROR

Initially, the defendant argues that the stop of the vehicle was illegal as “there were no articulable facts to prove the GMC had committed the earlier traffic violations,” and, secondly, that the subsequent search of the vehicle without a warrant was not constitutionally valid as the State failed to establish the presence of a valid exception to the warrant requirement.

The State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La. C.Cr.P. art. 703(D). The trial court is vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on such a motion will not be disturbed absent an abuse of that discretion, State v. Oliver, 99-1585, p. 4 (La. App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The district court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard, and its ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Bridges, 2011-1666, p. 4 (La. App. 4 Cir. 11/28/12), 104 So.3d 657, 660.

InThe Fourth Amendment of the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution protect a person’s reasonable expectation of privacy even while that person is within his automobile. Both the federal and state constitutions prohibit unreasonable searches and seizures, and a warrantless search and seizure is presumed to be unreasonable. Both the federal and state constitutions prohibit unreasonable searches and seizures; a warrantless search and seizure is presumed to be unreasonable. State v. Lockett, 2012-1561 (La. App. 4 Cir. 7/24/13), 120 So.3d 886 (2013) citing State v. Bridges, 2011-1666, p. 5 (La. App. 4 Cir. 11/28/12), 104 So.3d 657. In order to justify a warrantless search, the State must show that the search falls within one of the narrowly drawn exceptions to the warrant requirement. State v. Barrett, 408 So.2d 903, 904 (La. 1981).

As a general matter, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (citations omitted). Probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer are sufficient to justify a man of ordinary caution to believe that the person to be arrested has committed or was committing a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); La. C.Cr.P. art. 213; State v. Raheem, 464 So.2d 293 (La. 1985).

I. The Stop:

The defendant argues that Officer Mclver and Officer Sananayke lacked reasonable grounds to believe that the GMC was the same black SUV they had seen committing traffic violations earlier. The defendant suggests that it was just as reasonable to believe that “Watts, his brother and their sons” just happened to be leaving Popeyes at the same time that the officers were searching for the SUV.

|7The defendant notes that despite the fact that the officers claimed that the vehicle passed right in front of them, they failed to note that there were four occupants in the vehicle including two children. The defendant suggests that there are thousands of black SUVs in New Orleans, and the officers failed to observe any distinctive markings or note the license plate number of the vehicle, which would allow them to rationally believe that the GMC was the same vehicle they observed earlier. Accordingly, the defendant argues that losing the SUV when the officers had no other descriptive information about it or its occupants did not justify them in “seizing” the first black SUV they found in the general area. The defendant argues it was just as reasonable to believe that the occupants of the GMC just happened to be leaving the Popeyes at the same time that the officers were searching for the black SUV.

The defendant’s argument would perhaps be more persuasive had Officer Mclver and Officer Sananayke lost contact with the black SUV for a longer period than just the one city block between Willow and Claiborne. Furthermore, Officer Sana-nayke testified that he and his partner lost sight of the vehicle for a “short time” or only “for a few seconds.” The exceedingly short distance the officers traveled coupled with the very small amount of time that passed between sightings effectively reduced the possibility that the officers encountered a different black GMC (SUV) to a very small likelihood.

Likewise, when Officer Mclver was asked how they were able to determine the GMC was the same vehicle they viewed previously, he stated, “[i]t appeared to be the exact same make and model”—“[i]t looked exactly the same.” Furthermore, when the officers spotted the GMC. and stopped, “the brake lights of the black GMC immediately came on and [the vehicle] began to back out.” These ^^considerations, coupled with the fact that the GMC was located precisely where it should have been given its course and direction, reflect that it was certainly reasonable for the officers to believe that the GMC was the same vehicle they had only moments before observed committing the two traffic violations.

The Search:

The defendant argues that regardless of whether there was a reasonable basis to stop the vehicle, the police nevertheless lacked any justifiable basis to search the vehicle. The defendant argues that the automobile exception is inapplicable because the police lacked probable cause to believe the vehicle contained evidence or contraband and that this particular situation did not pose a substantial threat to officer safety sufficient to justify a protective sweep of the vehicle.

In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the United States Supreme Court recognized a limited protective warrantless search of the passenger compartment of a vehicle during a Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), stop may be justified if the officer has “specific and articulable facts which, taken together with the rational inferences |nfrom those facts, reasonably warrant [his belief] that the suspect is dangerous and the suspect may gain immediate control of weapons.” Long, 463 U.S. at 1049-50, 103 S.Ct. at 3481, Under these circumstances, the officer may conduct a search of the passenger compartment of the automobile, limited to those areas in which a weapon may be placed or hidden. Id., 463 U.S. at 1049-50, 103 S.Ct. at 3481.

In Arizona v. Gant, 556 U.S, 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), Justice Scalia noted in his concurrence that “[i]n the no-arrest case, the possibility of access to .weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.” Gant, 556 U.S. at 352, 129 S.Ct. at 1724 (Scalia, J., concurring).

Courts in this State have consistently authorized a limited protective warrantless search of the passenger compartment of a vehicle under similar circumstances- to those present here. In State v. Lockett, this Court noted that "[t]he jurisprudence has recognized that if an officer has at least a reasonable suspicion to stop a -vehicle and an occupant of the vehicle makes furtive movements during the stop, as if attempting to conceal an object, the officer has the right to conduct a limited protective sweep of the vehicle.” Id. p. 12-13, 120 So.3d at 893-94 (collecting cases).

In State v. Carver, 531 So.2d 551, 553 (La. App. 5th Cir.1988) (per curiam), the police observed the defendant in a high crime area within a parked car “hunched over in the seat ,.. working on something .,. looking up and looking around.” Carver, 531 So.2d at 552. As the officers approached, the defendant bent | mover and appeared to put something under the seat. The Court ruled that the defendant’s “fur-, five gesture when observing the officer heightened the officer’s suspicion, and according to the jurisprudence supported a reasonable belief that the situation could be dangerous justifying the subsequent search for a possible weapon.” Carver, 531 So.2d at 553.

In State v. Archie, 477 So.2d 864, 865-66 (La. App. 4th Cir.1985), this Court upheld the search of the defendant’s vehicle, noting that police “were not obliged to let [the defendant] reenter the car without checking to see what he had placed under the seat considering the real possibility that they might be in danger.” The police had stopped the defendant’s vehicle in a high crime area after observing that his license plate was bent in such a way as to make its numbers unreadable. When the officers requested that the defendant exit the vehicle, he “made a sudden erratic movement, ducking down and appearing to be concealing something under the seat.” Id., 477 So.2d at 865. This Court concluded that the defendant’s “exaggerated motion as if to place something under the seat could easily lead a reasonably prudent man to believe that his safety or the .safety of others was in danger and justified the search.” Id.

In State v. Davis, 612 So.2d 256, 258 (La. App. 4th Cir.1992), officers observed the driver of a speeding car gesture as if he was putting something under the seat, and this Court upheld the subsequent search of the area beneath the seat. The testifying officer stated that, in his experience, he had seen many suspects hide guns or drugs under the seat when being stopped. Because of this knowledge, he decided to look under the seat after the defendant had exited his car. Citing State v. Archie and Michigan v. Long, this Court found that the search was permissible.

In State v. Wilder, 2007-960 (La. App. 5 Cir. 3/25/08), 983 So.2d 124, the defendant was stopped for a traffic violation in a high crime area and was then observed concealing something in the center console. After the defendant was removed from the vehicle, the officer searched the compartment, explaining that in his experience it was a common compartment for secreted weapons. The court found that the officer’s protective search was reasonable under Michigan v. Long.

In this case, Officer Mclver testified that as soon as they put their lights and sirens on, the defendant was “swerving, slamming on the brakes, speeding back up, all the while leaning forward and making movements towards the front of the bottom of the seat.” Based on his training and experience, Officer Mclver believed that the defendant was “either arming himself or trying to hide contraband or some type of weapon.

Similarly, Officer Sananayke testified that he could see the “driver of the vehicle leaning forward and messing with something either on the floorboard or near the dash.” He noted that the driver’s act of leaning forward coincided with the erratic-swerving that was occurring. Officer Sana-nayke explained that after the GMC came to a stop, they stayed in their vehicle and ordered the occupants to put their hands out the window because it was obvious that the driver had been “either hiding some type of weapon or some type of contraband.”

It is clear that given the erratic and evasive maneuvers being executed by the driver, coupled with the officers’ observations of the driver reaching down and forward while operating the vehicle that Officer Sananayke and Officer Mclver’s belief that the driver may have been attempting to conceal a weapon was reasonable. Therefore, the limited search performed by Officer Sananayke of the area in the vehicle where the defendant was observed reaching was justified under |lgthe exception for limited protective automobile searches annunciated in Michigan v. Long. The defendant’s assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed; and we remand this matter for further proceedings, as addressed above.

AFFIRMED IN PART; REMANDED IN PART

      . The court did find that there was probable cause "for the lesser charge.”

      . In various portions of the appellate record, the officer’s name is spelled Senanyake.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

      . In State v. Anderson, 2006-1031 (La. App. 4 Cir. 1/17/07), 949 So.2d 544, this Court discussed the automobile exception as follows:
      Although a warrant is generally required prior to conducting a search, California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the "automobile exception” to this requirement is well-established. Carroll v. United States, 267 U.S. 132, 45 S.Ct, 280, 69 L.Ed. 543 (1925). Pursuant to the "automobile exception”, there is no separate exigency requirement if there is probable cause to search a vehicle. U.S. v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L,Ed.2d 572 (1982); see Pennsylvania v. Labran, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment .. permits police to search the vehicle without more."); see also State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330 (if a vehicle is readily mobile, there is no difference between seizing the car while obtaining a search warrant and immediately searching the vehicle without a warrant). Thus, if there is probable cause to search and the vehicle is, readily mobile, even if stationary at the time the search proceeded, any evidence will be considered constitutionally seized.

        Id., 2006-1031, p, 5, 949 S6.2d at 548.

      . Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)


author: COX, JUDGE.

text:
    CREEK MANAGEMENT, L.L.C., Plaintiff-Appellee v. UNOPENED SUCCESSION AND UNKNOWN HEIRS OR LEGATEES OF Wade WILLIAMS, et al., Defendants-Appellants
    No. 51,392-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 17, 2017.
    Rehearing Denied June 15, 2017

      DONALD WILLIAM WEIR, JR., Counsel for Appellants
    BETHARD & BETHARD, L.L.P., By: Henry W. Bethard, V, Counsel for Appel-lee
    Before WILLIAMS, DREW, and COX, JJ.
   COX, JUDGE.

hThe unopened succession and unknown heirs or legatees of Wade Williams (“Defendants”) appeal from a summary judgment for the plaintiff, Creek Management, L.L.C. (“Creek”), which resulted in Creek being granted possession of all interests in the property in dispute. The trial court, addressing Creek’s possessory action, found that Creek had terminated any precarious possession by filing an affidavit of possession, and from that day had possessed the property for itself, as owner, against all other co-owners. Because questions of material fact remain regarding the actions of Creek in establishing possession, we respectfully reverse the trial court’s ruling and remand for further proceedings.

FACTS

This suit began on June 11, 2015, when Creek filed a petition for possessory action which stated that it was in possession, as owner, of an approximately 40-acre tract of land in the southern part of Caddo Parish. The petition alleged that Creek acquired interests in the property by deeds filed in the records of Caddo Parish and that the property appeared to have been abandoned prior to the sales of the interests. It further stated that the sellers of the deeds did not know any other owners or heirs. The petition claimed that an affidavit of possession was filed by Creek on June 9, 2014, which named anyone with a possible ownership interest, and declared that Creek intended the affidavit to serve as notice of hostile possession against them. The affidavit listed various actions that Creek took which were intended to demonstrate possession of the property. On the basis of this alleged uninterrupted hostile possession and the filing of the affidavit, Creek lgdaimed that there had been a disturbance in possession in law under La. C.C.P. art. 3659. As a result, Creek asked that the court appoint an attorney to represent the absentee defendants and that Creek be recognized as possessor of the property under La. C.C.P. art. 3658.

The affidavit of possession referenced in the petition was filed on June 9, 2014, and states that Creek purchased an interest in the property in dispute on June 6, 2014. It elaborates that “it has been, and is the intention of Creek Management, LLC to own, and to possess as owner, the entirety of the subject property beginning on June 6, 2014, which possession is hostile against any other persons or entities who claim to have a co-ownership interest in the subject tract.” The affidavit goes on to state various acts of possession of the property including: cleaning the property of garbage piles, cutting trails, posting “no trespass” signs, repairing fences, placing a gate and lock to restrict access, destroying old deer hunting equipment, and attempting to restore electricity to and repair an old structure on the property. It also lists 11 unopened successions and/or persons whom Creek intended to possess against and states that it is intended to serve as notice of such with the goal of acquiring title to 100% interest in the property by adverse possession.

After the trial court appointed an attorney to represent Defendants, an answer and' set of requests for admissions of fact were filed. The answer asserted that all Defendants were absentees from Louisiana and that merely filing the affidavit in the public records was not sufficient notice.

In response to the request for admissions, Creek admitted that it had checked the Caddo Parish Tax Assessor’s records regarding the property, Land they were aware of the mailing address for Beatrice Wesson (“Wesson”), a representative of a co-owner of the property. In addition, Creek admitted that it never sent any correspondence to Beatrice Wesson via certified mail, and had placed notice in a Caddo Parish publication to notify the public of the hostile possession of the property.

On February 10, 2016, after Defendants produced substantial records of their ownership and payment of taxes for the property, they filed a motion for summary judgment. The motion argued that Creek’s failure to publish notice of its hostile possession in a Caddo Parish newspaper and' its failure to send a letter by certified mail to Wesson made any actions it took insufficient to take sole possession of the property. Attached was an affidavit from Leatrice Eagleson (“First Eagleson Affidavit”) stating that she did not receive notice of the adverse possession until after the suit was filed and that she or Wesson had responded to inquiries about oil, gas, and timber on the property since 1956. Included in the Defendants’ production were inquiries about mineral interests addressed to Wesson and dated June 10, 2014, and March 18, 2015, dates within the time that Creek claimed exclusive possession. The affidavit also states that the property was acquired by Eagleson’s ancestors in 1926 and that the Williams family .(Eagleson’s mother’s family) had paid property taxes on the property since 1956. Another affidavit from the Director of Land Ownership at the Caddo Parish Tax Assessor’s Office (“Tax Assessor’s Affidavit”) was also attached and Instated that since 1956, the property was assessed to “Williams, Wade, et al c/o Beatrice Wesson, 5495 WHITFIELD DR. TROY, MI 48098-5182.”

Creek filed a cross-motion for summary judgment on March 24, 2016, asserting that there were no issues of material fact and the requirements of La. C.C.P. art. 3658 had been met as a matter of law. In its memorandum, Creek argued, ‘With no information available for plaintiff to find the identities or whereabouts of the defendants, plaintiff went above and beyond what the law requires and filed an affidavit of possession which could not have stated the intent of the plaintiff any more clearly.” Attached to its motion was an affidavit from Ashley Powers (“First Powers Affidavit”), a member and manager of Creek, stating that a letter was sent to Wesson on June 9, 2014, to notify her of Creek’s possession of the property. That letter, attached to the motion, contained a statement that Creek was possessing against Wesson’s interest and offered to buy her approximately one-tenth interest for $2,000.00. The letter was signed by Henry W. Bethard, Y, as a manager of Creek. Powers also averred that Signora Darnell, a neighboring property owner, called Powers between June 9 and September 27, 2014, and stated that she'had been, in contact with the landowner and that the landowner didn’t want any more “no-trespassing” signs to be put up. When asked for the landowner’s contact information, Darnell allegedly refused to give, out the name or information, but agreed to give Powers’ information tojjthe landowner. Powers also stated that further contact with Darnell occurred on September 27, 2014, when Darnell saw Powers on the property and informed him that “the owner of the property” had told her the “no-trespassing” signs needed to be taken down. Powers concluded that Darnell had been in contact with Beatrice Wesson, but, at the time of the affidavit, Powers stated that it was obvious that Darnell had actually been in contact with Eagleson.

In response to that motion, Defendants filed a supplemental memorandum'which re-asserted their original arguments but included a supplemental affidavit from Ea-gleson (“Second Eagleson Affidavit”) which states that she received a call in late spring or early summer from Darnell indicating that a chain had been placed on her family’s property with a “No Trespassing” sign, but Darnell did not know who put them up. The affidavit also states that Eagleson visited the property in August of 2015 and found a chain with a “No Trespassing” sign attached, but that there was no identification of who put the sign or chain there. Signora Darnell also executed an attached affidavit (“Darnell Affidavit”) stating that when she approached people who were working on the property, they simply replied that “they owned the property,” and there was nothing else to identify them. She also averred that at no time did they ask her how to reach Wesson or anyone else by phone.

Responding to Defendants’ supplemental memorandum, Creek filed another memorandum in opposition to the motion for summary .judgment | ^arguing that it did provide actual notice. It stated that actual notice was achieved by the letter and that whether it was sent via certified mail was irrelevant. It further asserted that even though sending notice by certified mail was not a requirement, an attached certified return receipt showed that the Eaglesons do receive mail at the address where the plaintiffs letter was mailed. Attached to this memorandum is a second affidavit by Powers (“Second Powers Affidavit”) executed on July 1, 2016, which is substantially the same as the first, except that it adds a statement that the Eagelsons receive mail at'Wesson’s address as evidenced by an attached certified mail return receipt.

On July 14, 2016, a third affidavit, from Eagleson (“Third Eagleson Affidavit”) was filed in support of Defendants’ motion for summary judgment. It states that when she visited the property on August 2, 2014, she did not see a telephone number on the “no-trespassing” sign posted on the entrance to her property and that had she seen a telephone number she would have called it.

On July 18, 2016, a hearing was held on the motions for summary judgment. At the hearing, Creek stated that the uncontested facts were that the plaintiff had acquired an interest in the piece of property, the co-owners could not be found, Creek filed the deeds and an affidavit, and a year after the purchase and filing without interruption, the plaintiff filed, the suit. Creek stated that there was a genuine issue of material fact about whether actual notice was given that would defeat Defendants’ motion for summary|7 judgment because Creek claimed to have sent letters to Wesson’s address and a neighbor talked to one of the defendants about Creek’s possession. Creek argued that its acts of possession along with the filing of the affidavit of possession provided sufficient notice to co-owners.

Defendants stated that Creek argued that actual notice was not required where there is no information to determine the address of co-owners. Defendants asserted that the negative implication is that where information is available to determine the address of co-owners, then actual notice would be required. Defendants pointed out the Tax Assessor’s Affidavit demonstrated the availability of the address and that Creek failed to send its alleged letter by certified mail, a method of delivery which would have avoided the issue completely. Defendants also argued that the acts of possession by the plaintiff were not overt and unambiguous because the plaintiff never identified itself. After arguments, the court issued an oral ruling in favor of Creek, granting the plaintiffs summary judgment motion and denying the Defendants’ motion.

On July 27, 2016, a written “Judgment Granting Possession” was filed. The judgment denied Defendants’ motion for summary judgment and granted Creek’s motion, stating, “The plaintiff terminated any precarious possession on June 9, 2014, being the time of the filing of the affidavit of possession, and began, on that day, possessing for itself as owner.” As a result, Creek was granted possession of all interests in the property in dispute and, as possessor, was thereafter considered provisional owner pending the establishment of the rights of the true owner under La. C.C. art. 3423. Defendants appealed from that judgment.

I «SUMMARY JUDGMENT

A de novo standard of review is required when an appellate court considers rulings on motions for summary judgment, and the appellate court uses the same criteria that governed the district court’s determination of whether summary judgment was appropriate. Bank of New York Mellon v. Smith, 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, pursuant to La. C.C.P. art. 966. See Catahoula Parish Sch. Bd. v. Louisiana Machinery Rentals, LLC, 12-2504 (La. 10/15/2013), 124 So.3d 1065, 1071.

The burden of proof on a summary judgment motion remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. See La. C.C.P. art. 966(D)(1).

LAW

It is a well-established rule that an owner in indivisión cannot acquire by prescription the rights of co-owners, and possession by one co-owner is generally considered as being exercised on behalf of all co-owners. Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369 (1949); Hill v. Dees, 188 La. 708, 178 So. 250 (1937); Dew v. Hammett, 150 La. 1094, 91 So. 523 (1922); Cockerham v. Cockerham, 44,578 (La.App. 2 Cir. 8/19/09), 16 So.3d 1264.

The well-settled exception to this rule is reflected in La. C.C. art. 3439, entitled “Termination of precarious possession,” which provides that “a co-owner ... commences to possess for himself when he demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co-owner.” La. C.C. art. 3478 contains a similar requirement, stating that a co-owner “may commence to prescribe when he demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself.” Art. 3478 also provides that “the recordation of a title from a person other than a co-owner thus may mark the commencement of prescription.” (Emphasis added). When a possessing co-owner gives notice to the other co-owners that he intends to possess as owner adversely and contrary to the common interest, the owner giving notice may prescribe against other co-owners provided the possession is clearly hostile. Franks Petroleum, Inc. v. Babineaux, 446 So.2d 862 (La. App. 2 Cir. 1984); Givens v. Givens, 273 So.2d 863 (La. App. 2 Cir. 1973); Cockerham, supra.

When analyzing whether a particular case falls within the exception rather than the general rule, this court has found that mere occupancy, use, payment of taxes, and similar acts of possession will not suffice to constitute notice of adverse possession to an owner in common. However, this court has also noted that actual notice to co-owners of the possessing co-owner’s | ^intent to possess for himself is not necessary. Franks Petroleum, Inc., supra; Givens v. Givens, supra. A recorded instrument purportedly conveying an interest in property will not always constitute notice. It must not be read in isolation, but rather considered along with acts of physical possession. Otherwise, Art. 3478 would use the words “shall mark” instead of “may mark” when noting the effect of an instrument on the commencement of prescription. Cockerham v. Cockerham, supra.

Wfliere a co-owner possesses under a recorded instrument apparently conveying title (even if it is invalid), the instrument, combined with acts of corporeal possession, may constitute notice to other co-owners of hostile possession, thereby rebutting the presumption of possession for the benefit of all. Givens v. Givens, supra.

DISCUSSION

After reviewing the record that has been developed thus far, we find that genuine issues of material fact remain, and, therefore, respectfully reverse the granting of summary judgment and remand for further proceedings. The conflicting affidavits regarding the letter to Wesson, knowledge of physical possession, and identifying information on the signs create questions of fact which must be answered to determine whether Creek’s hostile in-tent was sufficiently “overt and unambiguous” so as to give notice to the other co-owners. ■

The Louisiana Civil Code does not, as Creek points out, explicitly require actual notice to other co-owners of one co-owner’s intent to possess for himself, hostilely against the other co-owners. La. C.C. arts. 3439, 3478. Rather, it requires that the co-owner demonstrate that intent “by overt and unambiguous acts sufficient to give notice to his co-owner,” La. C.C. art. 3439. As a result, the inquiry turns on whether the actions taken by Creek may be deemed overt and unambiguous enough to give notice to fellow co-owners.

Creek points to two of this Court’s opinions, Franks Petroleum, Inc. and Cocker-ham, for support that its filing of an “Affidavit of Possession,” along with certain acts of physical possession on the property, is sufficient to satisfy the standard as a matter of law. Both cases cite Civil Code Articles 3439 and 3478 for the proposition that actual notice is not required between co-owners. They also go on to state that, a co-owner’s possession under a recorded instrument apparently conveying title (even if not effective), together with acts of possession, constitutes notice to other co-owners of hostile possession. We will examine each case in turn.

In Franks Petroleum, Inc., supra, this Court found no error in the trial court’s judgment that a combination of recorded documents and physical acts of possession were sufficient evidence to show notice to other co-owners. Those documents included a judgment of possession which -transferred a “whole interest in and to” the subject property to the heirs of C.C. Col-vin, one of the two brothers who originally owned the- property. In addition, two recorded quitclaim deeds from the widow of the other brother and all of.his children except to litigants stated that C.C. Colvin had bought his brother’s interest in the property, but the. deed was lost or destroyed and not recorded.. Based on the evidence of the deeds and judgment of I ^possession, along with acts of possession including living on the property, farming it, growing timber, selling timber, sand, and gravel, having the property surveyed, and more, this Court determined that it was not error for the trail court to have issued a judgment finding that the acts were “sufficiently overt and unambiguous” as to give notice to co-owners. It is important to note that the opinion merely found no manifest error based on the evidence from a full trial on the merits.

In Cockerham, supra, this Court addressed the issue of the effects of recorded documents and acts of possession in a judgment setting forth property interests and finding that acquisitive prescription had not accrued. A full trial and judgment resulted in a finding that an invalid deed alone did not give notice to co-owners, and even if it did,' it was not followed by acts consistent with adverse possession. This Court noted that the grantor on the invalid deed had no interest in the property to convey, and the majority of the jurisprudence involved cases where the grantor or donor “had some actual or future ownership interest that they were attempting to convey.” A review of the trial testimony also revealed -that the majority of the family still considered the subject property as collectively owned and not the property of the relative who had moved onto it with his family. Based on the evidence, this Court found no manifest error in the trial court’s judgment finding no prescription had occurred and setting out respective ownership interests.

In both Franks Petroleum, Inc. and Cockerham, the recorded instruments relied upon for notice were deeds or partitions purporting toj 13 transfer property. Although both cases agreed that the validity of the deeds was not at issue, neither case went so far as to say that any recorded instrument could combine with acts of physical possession to constitute notice. The statement that “a recorded instrument may constitute notice to co-owners even though it is not translative of title,” does not appear to have been extended by any court to an instance where a co-owner has filed an affidavit of possession to show hostile possession of a co-owned property. Instead, the emphasis in the case law appears to be on the collection of recorded instruments which evidence an intent to buy or receive all outstanding interests of co-owners. In addition, both Franks Petroleum, Inc. and Cockerham had a full evidentiary hearing where all issues were developed prior to a ruling being made by the court.

Looking to the evidence in this case, Creek listed various acts of physical possession in its petition including clearing brush, destroying old deer hunting equipment, placing no-trespassing and posted signs, and placing a gate and sign on the property entrance to restrict access. Although those actions do not appear to be directly controverted, they fall into the category of “mere occupancy, use, payment of taxes, and other acts of possession” that this court has found to be insufficient to constitute notice to other co-owners. As such, the crux of this case revolves around the affidavit of possession and the letter which Creek allegedly sent.

■ In determining the effect of the affidavit of possession, it is worth noting that Creek claimed to file it because “with no information available! 14 for [Creek] to find the identities or whereabouts of the defendants, [Creek] went above and beyond what the law requires and -filed an affidavit.” Creek leveled this argument in its motion for summary judgment despite having earlier admitted in its responses to requests for admission that it had checked the Caddo Parish Tax Assessor’s records and was aware of the mailing address for Beatrice Wesson. Although the Civil Code does not require actual notice in the case of co-owners, it does require actions that are “overt and unambiguous” enough to give notice to co-owners when their address and contact information is known. This is not an instance where, as has been advanced by Creek, Defendants could not be located, so it was easier to file the affidavit. Instead, the record shows that Creek knew the address of the co-owner and may or may not have sent a letter to that co-owner. Given the facts of this case, we are unable to declare that Creek’s actions were sufficiently “overt and unambiguous” as a matter of law.

There is also a clear dispute regarding whether the letter was sent or received. The Powers Affidavit claims that it was sent to the address at which the Eaglesons received mail, but the Second Eagleson Affidavit claims that the letter was never received. Creek even argued that there was a material dispute regarding the letter at oral arguments. As such, there is a material question of fact regarding the letter.

Creek relies upon its affidavit of possession and acts of physical possession to satisfy the' test where a recorded instrument translative of title combined with physical acts of possession can constitute notice. We find that the record does not contain sufficient undisputed facts to merit summary judgment. The affidavit of possession is not an instrument translative of title |1fias in the other cases cited. This Court is unaware of any similar case where an affidavit of possession has been used in this way. The record in this case does not contain sufficient evidence to find that Creek’s actions were sufficiently overt and unambiguous to constitute notice to the co-owners.

CONCLUSION

After a review of the record, we find that there are genuine issues of material fact regarding whether Creek Management, L.L.C.’s actions were sufficiently overt and unambiguous to constitute notice to the other co-owners. There is a dispute regarding the signage that Creek posted around the property and whether it sent a letter to Wesson. In addition, the affidavit of possession relied upon does not, alone, constitute notice to the co-owners. For these reasons, we respectfully reverse the trial court’s grant of summary judgment and remand the case for further proceedings. Costs are assessed to the appellee, Creek Management, L.L.C.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, DREW, STONE, COX and BLEICH, JJ.

Rehearing denied.

      . Leatrice Eagleson ("Eagleson”) is the daughter of Beatrice Wesson.

      .' Defendants claim they paid property taxes on the property for all years except for 2014, when they state that Creek paid the taxes before Eagleson did.

      . Creek asserted this argument despite its answer to Defendants’ request for admissions which admitted that it had prior knowledge of ' Wesson’s name and address.

      . The Second Powers Affidavit appears' to show that Eagleson receives mail at Wesson’s address.

      . Henry W. Bethard, V, is the attorney of record for Creek in this case,

      . The affidavit does not specify the year in which this phone call occurred, The affidavit was executed on April 23, 2016.

      .It does not appear, nor is it asserted, that the certified mail receipt shows receipt of the June 9, 2014, letter from Creek to Wesson. The certified mail receipt is addressed to Wesson and appears to be signed by "William Eagleson,” but it is not dated.

      . This rule appears to be drawn from the differences between the provisions of La. C.C. arts. 3439 and 3478 as they apply to co-owners versus other precarious possessors.

      . This Court found that the grantee of the deed "should have known that [tl}e grantor] did not own the property which he was attempting to convey” because of prior business dealings, and the grantee was, therefore, in bad faith.

      . See Franks Petroleum, Inc., supra (a judgment of possession along with quitclaim deeds from almost all co-owners was sufficient); Succession of Seals, 243 La. 1056, 150 So.2d 13 (1963) (a brother and heir of decedent acquired quitclaim deed from widow in addition to interest from succession to give notice).